OV 8 — Victim Asportation or Captivity

To the extent that prior decisions created an "incidental movement exception" to OV 8, they were wrongly decided and are overruled. "Asported" as used in OV 8 should be defined according to its plain meaning — movement of a victim that is incidental to the commission of a crime nonetheless qualifies as asportation if it moves the victim to a place or situation of greater danger. The trial court in this case correctly scored OV 8 at 15 points where the defendant took the victim from the living room into his bedroom to sexually assault her, as the bedroom was less likely to be discovered, rendering it a place of greater danger.¹

OV 8 was properly scored at 15 points under both the asportation prong (one minor victim was seized from the front porch and forcibly moved to the basement) and the captivity prong (victims were held against their will, their egress was prevented, and they were physically restrained and subjected to beating and threats of further violence).²

The trial court did not err in assessing 15 points under OV 8 where the defendant took young victims to a trailer on his property, another riding on a dirt bike far from the house, and another into a tree house for the purpose of committing criminal sexual conduct. Locations where others are less likely to observe the defendant constitute places or situations of greater danger within the meaning of MCL 777.38(1)(a).³

Although the defendant claimed the victim voluntarily entered the apartment with him and there was no further assault in the apartment, OV 8 was properly scored at 15 points where the apartment was a more isolated location and the evidence suggested the victim did not feel free to go anywhere other than the apartment after the assault.⁴

OV 8 was correctly scored at 15 points in a criminal sexual conduct case where the victim was transported by the defendant to the defendant's home where the sexual acts occurred. Asportation as used in MCL 777.38(1)(a) can be accomplished without the use of force against the victim.⁵

OV 8 was properly scored at 15 points in a third-degree criminal sexual conduct case where the victim was transported to an unfamiliar house in a different city. Transportation to an unfamiliar, more isolated location constitutes transportation to a place of greater danger.⁶

OV 8 was properly scored where the sentencing offense was unlawful imprisonment. Movement of the victim from an apartment balcony — where neighbors could still see her — to inside the apartment was sufficient asportation to a place of greater danger. Additionally, the continuing restraint of the victim inside the apartment after dragging her in was a separate basis for scoring because unlawful imprisonment does not require more than momentary restraint — when the defendant continued to hold her after completing the initial act, he effectively held her captive beyond the time necessary to commit the offense.⁷

OV 8 may be scored where the sentencing offense is unlawful imprisonment because the legislature separated unlawful imprisonment from kidnapping in a 2006 amendment and the exclusion provision in MCL 777.38(2)(b) references only kidnapping. Fifteen points were properly affirmed where the defendant took a store clerk into a back conference room out of the public eye.⁸

OV 8 was improperly scored at 15 points where there was no indication that the defendant held a victim captive beyond the time necessary to commit the offense and the defendant left the home immediately after perpetrating the offense. Additionally, only the defendant's actual participation should be scored for OV 8, and the court should not have based the score on co-defendants' conduct.⁹