2.24OV 11—Criminal Sexual Penetration

A.Scoring

OV 11 is scored only for crimes against a person. MCL 777.22.

Step 1: Determine which statements addressed by OV 11 apply to the offense. MCL 777.41(1).

Step 2: Assign the point value indicated by the applicable statement having the highest number of points. MCL 777.41(1).

B.Issues

1.Application of McGraw Rule

“Offense variables must be scored giving consideration to the sentencing offense alone, unless otherwise provided in the particular variable.” People v McGraw, 484 Mich 120, 133 (2009).

In order to score points under OV 11, there must be sufficient “record evidence to support a finding that any charged or uncharged criminal sexual penetration arose out of the sentencing offense.” People v Goodman, 480 Mich 1052 (2008); People v Thompson, 474 Mich 861 (2005) (“The record does not establish when the noncharged sexual penetrations occurred, and therefore there is no evidence in this case to support a finding that the additional sexual penetrations arose out of the sentencing offense.”).

The Goodman Court vacated the defendant’s sentence and remanded for resentencing because “[t]he defendant should have been scored zero points for OV 11 where there was no record evidence to support a finding that any charged or uncharged criminal sexual penetration arose out of a sentencing offense.” Goodman, 480 Mich 1052. Specifically, the Supreme Court disagreed with the Court of Appeals’ conclusion that there was “support for the proposition that the subsequent penetrations ‘arose out of’ the first,” where the “sexual penetrations of the victim could be considered part of a pattern of defendant’s abuse of his close relationship with the victim’s mother,” and “the subsequent penetrations occurred because defendant influenced the victim to not tell his mother by convincing him that she would not believe his allegations.” Id.; People v Goodman, unpublished per curiam opinion of the Court of Appeals, issued August 28, 2007 (Docket No. 269620), p 5.

The trial court erred by assessing 25 points for OV 11 where “the two penetrations that formed the bases of the two sentencing offenses in this case occurred on different dates and there [was] no evidence that they arose out of each other[.]” People v Johnson, 474 Mich 96, 97-98 (2006). The Court examined the meaning of arising out of the sentencing offense in MCL 777.41(2)(a), and held that the “most reasonable definition” of arising out of “suggest[s] a causal connection between two events of a sort that is more than incidental. Johnson, 474 Mich at 100-101. The Court elaborated: “Something that ‘aris[es] out of,’ or springs from or results from something else, has a connective relationship, a cause and effect relationship, of more than an incidental sort with the event out of which it has arisen.” Id. at 101 (alteration in original).

In order to satisfy the “arising out of” requirement in MCL 777.41, there must be “more than the mere fact that the penetrations involved the same defendant and victim.” People v Johnson, 298 Mich App 128, 132 (2012). OV 11 was properly scored at 50 points where the defendant was convicted of 3 counts of CSC–I for vaginal penetration, fellatio, and cunnilingus and the victim testified that she and defendant engaged in sexual activity involving penetrations on several occasions over a three-year period beginning when she was 13 years old; although “[the victim] did not recall how many times she had sex with defendant,” her testimony that they engaged in intercourse, fellatio, and cunnilingus “almost every time they were together” constituted “record evidence establish[ing] that two sexual penetrations arose out of the penetrations forming the basis of the sentencing offenses.” Id.

See Section 2.13(A) for a general discussion of the McGraw rule.

2.Meaning of Sexual Penetration

Neither MCL 777.41 (OV 11) nor the statutory sentencing guidelines define sexual penetration; however, for purposes of interpreting MCL 777.41, the Court of Appeals adopted the Michigan Penal Code (MPC) definition of sexual penetration found in MCL 750.520a. See People v McLaughlin, 258 Mich App 635, 673 n 15 (2003).¹ MCL 750.520a(r) defines the term as “sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person’s body or of any object into the genital or anal openings of another person’s body, but emission of semen is not required.” The criminal sexual conduct offenses are codified in the MPC. See MCL 750.520b–MCL 750.520e.

“Vaginal penetration, fellatio, and cunnilingus are considered separate sexual penetrations when scoring OV 11 under MCL 777.41.” People v Johnson, 298 Mich App 128, 132 (2012).

3.Scoring OV 11 Where Defendant is Convicted of Multiple Counts of CSC

The sexual penetration that is the basis of the sentencing offense may not be scored under OV 11, but a sexual penetration arising from the sentencing offense and on which a conviction separate from the sentencing offense is based should be scored. People v McLaughlin, 258 Mich App 635, 676 (2003).

In McLaughlin, the defendant argued he was improperly scored 50 points for two penetrations when those penetrations resulted in separate CSC-I convictions on the basis of MCL 777.41(2)(c), which prohibits assessing points “for the 1 penetration that forms the basis of a first- or third-degree criminal sexual conduct offense.” McLaughlin, 258 Mich App at 671-672. Because the defendant was convicted of three counts of CSC-I, the defendant argued that each penetration was the basis of its own conviction and could not be used in scoring the other convictions. Id. The Court rejected the defendant’s argument, and notwithstanding the ambiguity of the language used in MCL 777.41(2)(c), the Court concluded:

“[T]he proper interpretation of OV 11 requires the trial court to exclude the one penetration forming the basis of the offense when the sentencing offense itself is first-degree or third-degree CSC. Under this interpretation, trial courts may assign points under [MCL 777.]41(2)(a) for ‘all sexual penetrations of the victim by the offender arising out of the sentencing offense,’ while complying with the mandate of [MCL 777.]41(2)(c), by not scoring points for the one penetration that forms the basis of a first- or third-degree CSC offense. Accordingly, trial courts are prohibited from assigning points for the one penetration that forms the basis of a first- or third-degree CSC offense that constitutes the sentencing offense, but are directed to score points for penetrations that did not form the basis of the sentencing offense.” McLaughlin, 258 Mich App at 676.

See also People v Lampe, 327 Mich App 104, 117-118 (2019) (trial court properly assessed 50 points where defendant was convicted of two counts of CSC-III and evidence supported that there were “three distinct acts of sexual penetration—which all occurred on the same day, at the same place, during the same course of conduct—[that] arose out of the sentencing offense”); People v Johnson, 474 Mich 96, 102 n 2 (2006) (noting “it is clear that each criminal sexual penetration that forms the basis of its own sentencing offense cannot be scored for purposes of that particular sentencing offense”); People v Wilkens, 267 Mich App 728, 742-743 (2005) (OV 11 was properly scored at 25 points for each of defendant’s two CSC–I convictions where the evidence established that regarding count 1 (penetration during the commission of a felony), the defendant penetrated the female victim more than once in making the videotape, and regarding count 2 (aiding and abetting in the production of child sexually abusive material), the evidence established that the defendant aided and abetted the male victim’s penetration of the female victim and that the defendant also penetrated the female victim at least one other time); People v Cox, 268 Mich App 440, 455-456 (2005) (OV 11 was properly scored at 25 points where the defendant was convicted of two counts of CSC-III for penetrations arising from the same incident—the trial court properly scored the one penetration that did not form the basis of the sentencing offense, even though the defendant was separately convicted for both penetrations); People v Matuszak, 263 Mich App 42, 61 (2004) (fifty points were appropriate under OV 11 where there was evidence of five penetrations occurring during the assault underlying the sentencing offense).

4.Scoring OV 11 Where Defendant is Convicted of Human Trafficking

“[T]here was a more than sufficient causal connection between defendant’s crime of human trafficking and his sexual penetrations of the victim” where “defendant did not personally engage in sexual relations with the victim . . . for money as part of the commercial enterprise,” but “he did engage in sexual relations with [her] as a result of her being forced into the criminal enterprise.” People v Baskerville, 333 Mich App 276, 298-300 (2020).