Michigan Criminal Sentencing Guidelines • Offense Variables

OV 9 — Number of Victims

Offense Variable 9 — Number of Victims — MCL 777.39
MCL 777.39
OV 9 addresses the number of victims placed in danger of physical injury, loss of life, or property loss during the sentencing offense. It is an offense-specific variable under People v McGraw, 484 Mich 120 (2009), and scores only victims placed in danger by conduct forming the sentencing offense. Multiple victims from multiple separate offenses cannot be aggregated, and animals and communities generally do not qualify as victims under OV 9.

Scoring Table — MCL 777.39

PointsCircumstances
100Multiple deaths occurred. MCL 777.39(1)(a). [Score 100 only in homicide cases. MCL 777.39(2)(b).]
2510 or more victims were placed in danger of physical injury or loss of life, or 20 or more victims were placed in danger of property loss. MCL 777.39(1)(b).
102 to 9 victims were placed in danger of physical injury or loss of life, or 4 to 19 victims were placed in danger of property loss. MCL 777.39(1)(c).
0Fewer than 2 victims were placed in danger of physical injury or loss of life, or fewer than 4 victims were placed in danger of property loss. MCL 777.39(1)(d).
Counting Victims Under MCL 777.39(2)(a), the court shall count each person who was placed in danger of physical injury, loss of life, or property loss as a victim. The term "victim" is broadly defined for OV 9 purposes and includes individuals placed in danger — not just those who were actually injured. First responders and fetuses have been counted as victims in appropriate cases.
Effective Date Note — Property Victims For offenses committed before March 30, 2007, victims of property loss or financial injury could not be scored in OV 9. Effective March 30, 2007, OV 9 was amended to include such victims. Counsel must apply the version of the statute in effect at the time of the sentencing offense.

Offense-Specific Rule — McGraw

People v McGraw 484 Mich 120 (2009)

OV 9 may only be scored on the basis of conduct occurring during the sentencing offense. Conduct occurring after an offense is completed does not relate back to the sentencing offense for purposes of scoring OV 9. The defendant's flight from police after breaking and entering a building was not a permissible basis for scoring OV 9.1

People v Jackson ___ Mich App ___; ___ NW3d ___ (2024) (Docket No. 366078)

It was improper to score OV 9 at 10 points for multiple victims as the only victim of the sentencing offense of assault with intent to commit great bodily harm was the complainant. The offense was completed by the time the complainant's brothers arrived and were shot. Under McGraw, "[u]nder MCL 777.39(1)(d), zero points are to be scored if there are less than two victims." The brothers' deaths could not be attributed to the sentencing offense.2

People v Nawwas 499 Mich 874 (2016)

The Supreme Court reversed and remanded for resentencing, citing McGraw, where OV 9 was scored at 10 points for the sentencing offense of carrying a concealed weapon in a motor vehicle. The CCW offense itself did not place multiple people in danger — the danger arose from the separate offense of discharging a firearm, which was not the sentencing offense.3

People v Biddles 316 Mich App 148 (2016)

Under McGraw, it was error to score OV 9 at 10 points based on the sentencing offense of felon-in-possession. The felon-in-possession conviction "in and of itself, simply did not place anyone in danger of physical injury or loss of life." No causal connection between the defendant's possession and the victim's death was established to a preponderance of the evidence.4

People v Bonilla-Machado 489 Mich 412 (2011)

OV 9 was improperly scored at 10 points where the defendant was convicted of two counts of assaulting a prison employee based on separate assaults occurring a half-hour apart against two different officers. The victims of each separate assault cannot be aggregated — each count of conviction is scored based on its own sentencing offense and its own victim count.5

Proper Counting of Victims

People v Lechleitner 291 Mich App 56 (2010)

OV 9 was properly scored at 10 points for 2 to 9 victims in an OUIL-causing-death case where, after the defendant crashed on a freeway, other motorists were placed in direct danger. The court found four people were directly placed in danger by the conduct of the sentencing offense: the occupants of two vehicles that had to swerve to avoid the defendant's crashed vehicle.6

People v Mann 287 Mich App 283 (2010)

OV 9 should have been scored at 10 points in an armed robbery case where the defendant took money from the first victim and then commandeered a vehicle and forced that driver to take him to another community. Armed robbery is a transactional offense including the defendant's conduct in leaving the scene, and the forced driver was properly counted as an additional victim.7

People v Fawaz 299 Mich App 55 (2012)

Firefighters who suffered heat exhaustion responding to an arson of a dwelling house can be counted as victims under OV 9, as can an elderly neighbor who had to be escorted from her home after it filled with smoke. First responders placed in danger by the commission of the offense qualify as victims under MCL 777.39.8

People v Ambrose 317 Mich App 556 (2016)

A fetus may be counted as a victim for purposes of OV 9 where the trial court identified conduct placing the fetus at risk of bodily injury or loss of life not only as an indirect result of risk to the mother but also as a direct result of blows to the victim-mother's abdominal area.9

Improper Victim Counting

People v Carrigan 297 Mich App 513 (2012)

The trial court improperly scored 25 points for more than twenty victims of property loss where the defendant vandalized two school buildings. The community at large was not a direct victim of the crimes. Under the trial court's broad interpretation, nearly every criminal offense could result in 25 points because the community always indirectly suffers when a crime is committed. Only the school district itself was a direct victim.10

People v Pennell 507 Mich 993 (2021)

Reviewing under MCR 6.500, the Michigan Supreme Court held it was error to score OV 9 by counting victims of uncharged or dismissed conduct. Only victims of the sentencing offense — the conduct for which the defendant was actually convicted — may be counted.11

People v Kruithoff Unpublished per curiam opinion of the Court of Appeals, issued December 16, 2003 (Docket No. 242739)

A dog is not a victim within the meaning of OV 9, even in a case of willfully and maliciously killing that animal. The term "victim" for OV 9 purposes refers to persons, not animals.12

People v Baskerville 333 Mich App 276, 294-295 (2020)

The trial court erred in assessing 10 points for OV 9 where there was no evidence that any individual was in the defendant's potential line of fire, and while a baby at the scene was in an obviously unhealthy environment, there was no evidence of any specific danger of physical harm to the child. OV 9 scoring must be based on actual evidence of danger, not speculation.13

Endnotes

  1. People v McGraw, 484 Mich 120 (2009).
  2. People v Jackson, ___ Mich App ___; ___ NW3d ___ (2024) (Docket No. 366078).
  3. People v Nawwas, 499 Mich 874 (2016).
  4. People v Biddles, 316 Mich App 148 (2016).
  5. People v Bonilla-Machado, 489 Mich 412 (2011).
  6. People v Lechleitner, 291 Mich App 56 (2010).
  7. People v Mann, 287 Mich App 283 (2010).
  8. People v Fawaz, 299 Mich App 55 (2012).
  9. People v Ambrose, 317 Mich App 556 (2016).
  10. People v Carrigan, 297 Mich App 513 (2012).
  11. People v Pennell, 507 Mich 993 (2021).
  12. People v Kruithoff, unpublished per curiam opinion of the Court of Appeals, issued December 16, 2003 (Docket No. 242739).
  13. People v Baskerville, 333 Mich App 276, 294-295 (2020).