2.25OV 12—Contemporaneous Felonious Criminal Acts

A.Scoring

OV 12 is scored for all felony offenses to which the sentencing guidelines apply. MCL 777.22.

Step 1: Determine which statements apply to the circumstances of the sentencing offense. MCL 777.42(1).

Step 2: Assign the point value indicated by the applicable statement having the highest number of points. MCL 777.42(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). OV 12 is an example of a variable that provides otherwise; specifically, when scoring OV 12 courts must only consider conduct that did not establish the sentencing offense. People v Light, 290 Mich App 717, 723 (2010).

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

2.Application of Light Rule

“[W]hen scoring OV 12, a court must look beyond the sentencing offense and consider only those separate acts or behavior that did not establish the sentencing offense.” People v Light, 290 Mich App 717, 723 (2010). “What matters, [for purposes of scoring OV 12], is whether the ‘sentencing offense’ can be separated from other distinct ‘acts.’” People v Carter, 503 Mich 221, 227 (2019) (for purposes of the OVs, the term “sentencing offense” means “the crime of which the defendant has been convicted and for which he or she is being sentenced”) (quotation marks and citation omitted). See also People v Stoner, 339 Mich App 429, 436 (2021) (“What Carter and Light make clear is that under MCL 777.42 only the number of underlying criminal acts is to be considered when scoring OV 12, not the number of crimes that may be charged from those acts.”).

In Light, 290 Mich App at 720, the defendant pleaded guilty to unarmed robbery, and the trial court assessed five points for OV 12 (two or more contemporaneous felonious criminal acts): (1) carrying a concealed weapon (which was not in dispute), and (2) either larceny from a person or larceny in a building (the lower court record was unclear as to which form of larceny its ultimate scoring decision was based). The Court of Appeals determined that “for OV 12 scoring purposes, [the defendant’s] physical act of wrongfully taking [the victim’s] money while inside a grocery store is the same single act for all forms of larceny—robbery, larceny from a person, and larceny in a building.” Id. at 725. “Therefore, even though the trial court sentenced [the defendant] for unarmed robbery, [the defendant’s] sentencing offense included all acts ‘occur[ring] in an attempt to commit the larceny, or during commission of the larceny, or in flight or attempted flight after the commission of the larceny, or in an attempt to retain possession of the property.’” Id., quoting MCL 750.530(2) (third alteration in original). The Court held that “[b]ecause [the defendant’s] sentencing offense was unarmed robbery, neither form of larceny could be used as the contemporaneous felonious act needed to increase [the defendant’s] OV 12 score.” Light, 290 Mich App at 726. Stated another way, “the language of OV 12 clearly indicates that the Legislature intended for contemporaneous felonious criminal acts to be acts other than the sentencing offense and not just other methods of classifying the sentencing offense.” Id. “Because both forms of larceny served as the basis of [the defendant’s] sentencing offense, the trial court should not have scored 5 points for [the defendant’s] unarmed-robbery conviction under OV 12.” Id. See also Carter, 503 Mich at 227 (“a determination of whether an offender has engaged in multiple ‘acts’ for purposes of OV 12 does not depend on whether he or she could have been charged with other offenses for the same conduct”).

Where the sentencing offense was assault with intent to commit great bodily harm, and “the prosecution relied on all three gunshots as evidence of defendant’s intent to commit murder or inflict great bodily harm, a finding that two of the gunshots were not part of the sentencing offense cannot be supported by the evidence,” and accordingly, 10 points cannot be assessed for OV 12 because the “same three gunshots cannot . . . be used to establish separate ‘acts’ that occurred within 24 hours of the ‘sentencing offense’ under MCL 777.42(2)(a)(i).” Carter, 503 Mich at 229-230 (noting it is possible that there could be “circumstances under which multiple gunshots may constitute separate ‘acts’ that are distinguishable from the ‘sentencing offense’”).

Five points were properly assessed for OV 12 where defendant was convicted of armed robbery and carjacking, and “sprayed the victim in the face with pepper spray after he used [a] pneumatic gun to place her in fear and after she gave him her car keys.” People v Savage, 327 Mich App 604, 632 (2019) (distinguishing the facts in Light, 290 Mich App at 717, where the defendant “committed one act that comprised both the robbery of the victim and the underlying larceny”). Specifically, “[t]he trial court did not clearly err in finding that the force or threat of force used to commit both the armed robbery and the carjacking was defendant’s use of the pneumatic gun,” and noting that in light of defendant’s felony-firearm convictions, the jury presumably “found that defendant used the pneumatic gun to commit” the sentencing offenses. Savage, 327 Mich App at 632.

There was “insufficient evidence that defendant committed three or more contemporaneous acts within 24 hours to justify the 10-point assessment of OV 12” where “the prosecution listed all 21 dates [on which the defendant allegedly committed felonious criminal acts, including five specific incidents for which the defendant was separately charged and convicted,] under Count I of the charging document as predicate offenses constituting the sentencing offense of conducting a criminal enterprise.” People v Abbott (On Remand), 330 Mich App 648, 657-658 (2019) (noting that while “[c]onducting a criminal enterprise may be punished separately from and cumulatively with the underlying predicate offenses,” it was not clear which predicate acts the jury relied on to convict the defendant of conducting a criminal enterprise). Accordingly, under Carter, 503 Mich at 229, there was no evidence of “contemporaneous felonious criminal acts for the purpose of scoring OV 12” because “the predicate offenses for the defendant’s conviction of conducting a criminal enterprise constitute the sentencing offense,” and the prosecution included all of the defendant’s conduct in the predicate offenses it charged. Abbott (On Remand), 330 Mich App at 651 (quotation marks and citation omitted).

The trial court erred by concluding that there were three separate acts under OV 12 based on the presence of three people where the defendant first pointed a gun at the group as a whole and later approached the group “while holding the gun in the air above his head, as opposed to pointing the gun towards the group or any of its individual members.” Stoner, 339 Mich App at 438 (quotation marks omitted). Because the record did not support the conclusion that the defendant “specifically targeted any of the three individuals in the group,” it supported finding only “one additional ‘act’ based on [the defendant’s] second armed approach of the group.” Id. at 437-438 (noting that “there may be circumstances in which pointing a gun at a group of people may constitute separate acts . . . for example, if the defendant specifically pointed the gun at each individual in the group”).

The trial court erred by counting two dismissed charges as contemporaneous felonious acts in a case where the sentencing offense was reckless driving causing serious impairment and the dismissed charges counted under OV 12 were operating a vehicle while intoxicated causing serious impairment and operating a vehicle with a suspended license causing serious impairment. People v Teike, ___ Mich App ___, ___ (2023). “[T]he acts underlying the uncharged offenses were not separate from the acts underlying the sentencing offense” because “[w]hat matters under OV 12 is whether the acts alleged to be contemporaneous felonious acts can be separated from the sentencing offense—in other words, whether they were used to establish elements of the sentencing offense.” Id. at ___. In this case, the record shows that “defendant’s conduct in operating his vehicle while intoxicated was used to establish an element of the sentencing offense, and therefore cannot be used to establish separate felonious acts for the purposes of scoring OV 12,” and “both the sentencing offense and the dismissed charges were based on defendant’s single act of operating a motor vehicle.” Id. at ___, ___ n 2 (noting it is possible that “under a different set of circumstances, a defendant’s conduct during a single period of driving may give rise to acts that are separate from those underlying the sentencing offense”).

3.Scoring Both OV 12 and OV 13

“[A]ll conduct that can be scored under OV 12 must be scored under that OV before proceeding to score OV 13.” People v Bemer, 286 Mich App 26, 28 (2009). Conduct that is properly scored under OV 12 may not be omitted from OV 12 simply because scoring the conduct under OV 13 would yield a higher OV total. Id. at 28. OV 13 is discussed in Section 2.26.

4.Offense Category Designations

“The plain language of MCL 777.42 indicates the Legislature’s express intent to allow sentencing courts to consider crimes within all the offense categories when scoring OV 12.” People v Bonilla-Machado, 489 Mich 412, 428-429 (2011) (noting that MCL 777.42 permits 25 points for “‘[t]hree or more contemporaneous felonious criminal acts involving crimes against a person,’” but 10 points for “‘[t]hree or more contemporaneous felonious criminal acts involving other crimes’” making it clear that all crimes can be considered under OV 12) (alterations in original).

However, in scoring OV 12, a trial court “[is not] free to look at the substance of the crime rather than the offense category designations under the guidelines themselves[.]” People v Wiggins, 289 Mich App 126, 130 (2010). In Wiggins, the defendant was charged with two counts of attempting to arrange for child sexually abusive activity, MCL 750.145c(2) (designated as crimes against a person under MCL 777.16g), and two counts of disseminating sexually explicit matter to a minor, MCL 722.675 (designated as crimes against public order under MCL 777.15g). Wiggins, 289 Mich App at 127. After the defendant pleaded no contest to one count of attempting to arrange for child sexually abusive activity, the trial court assessed 25 points for OV 12 (three or more contemporaneous felonious criminal acts involving crimes against a person were committed). Id. at 127-128; MCL 777.42(1)(a). The Court of Appeals held that OV 12 should have been scored at 10 points (three or more contemporaneous felonious criminal acts involving other crimes were committed), because only one of the other three charges was designated as a crime against a person, and the other charges were designated as crimes against public order. Wiggins, 289 Mich App at 130-131; MCL 777.42(1)(c). The trial court erred by assessing 25 points for OV 12 based on its conclusion that “all three of the additional charges were crimes involving other persons, namely the minor children involved.” Wiggins, 289 Mich App at 127-128, 131. The Court of Appeals clarified that “only crimes with the offense category designated as ‘person’ under MCL 777.11 to MCL 777.18 can be considered ‘crimes against a person’ for purposes of scoring OV 12[.]” Wiggins, 289 Mich App at 131, 131 n 3 (noting that the same reasoning applies to OV 13). See also Bonilla-Machado, 489 Mich at 425-426 (in the context of OV 13, rejecting the Court of Appeals’ reasoning that an assault of a prison guard could be considered a crime against a person despite the fact that it is statutorily designated as a crime against public safety because prison guards are people).

5.Examples of Sufficient Evidence to Score OV 12

The trial court properly scored 25 points for OV 12 where the defendant was in possession of “numerous sexually explicit pictures” of the three child victims “at the time and place where he committed CSC-I against [one of the victims],” and where “he was never charged as a result of the possession.” People v Waclawski, 286 Mich App 634, 687 (2009).

The trial court properly scored 25 points for OV 12 where the defendant possessed “at least 100 distinct images of child pornography contained in . . . four [computer] disks” but was bound over on only one count of possession of child sexually abusive material and one count of using a computer to commit a crime; either “the number of images (over 100) or the number of disks (four) were sufficient to find that defendant possessed three or more different child sexually abusive materials, which in turn is enough to satisfy the numerical threshold for [either] OV 12 [or] OV 13.” People v Loper, 299 Mich App 451, 454-455, 460-461 (2013) (rejecting the defendant’s argument that MCL 750.145c(4), governing the felony offense of possession of child sexually abusive material, “[was] unconstitutionally vague because both a single image . . . and a collection of images . . . are prohibited, resulting in a variance in the number of criminal charges that could be brought by prosecutors in cases in which there is a collection of separate images of child sexually abusive material[ and] . . . that because of this ambiguity, the trial court improperly assessed 25 points for OV 12 (and would have improperly scored OV 13 had points been assigned), despite the fact that he was bound over on only one count”).

Further, the trial court properly scored 25 points for OV 12 even though “the majority of the child sexually abusive material was downloaded onto the four disks . . . over a year before the date of the offense[.]” Loper, 299 Mich App at 454, 462-463 (because “the facts presented to the trial court form[ed] the basis of a reasonable inference that defendant possessed the disks . . . beginning in 2007 or before, and that he possessed all four disks . . . on October 23, 2008[ (which the trial court listed as the offense date),] . . . [i]t was reasonable for the trial court to infer that defendant possessed the images within 24 hours of the offense date[;] . . . [t]hus, there was evidence supporting the trial court’s finding that there were three or more contemporaneous acts of possession of child sexually abusive material under MCL 777.42(2)(a)”).

The trial court properly considered breaking and entering with intent under MCL 750.111 as a contemporaneous felonious act despite the fact that the act occurred in a motel open to the public because defendant entered areas of the motel open only to employees—behind the front desk and, after kicking down the door, into a locked office. People v Montague, 338 Mich App 29, 55-58 (2021) (additionally rejecting defendant’s argument that there was no evidence to find the third contemporaneous felonious criminal act where MCL 750.111 “clearly applies when a defendant enters certain buildings ‘without breaking,’” and “even if a ‘breaking’ was required, the evidence established that one occurred”).

6.Lockridge Error

Because OV 12 “specifically states that it cannot be scored for criminal acts for which there was a conviction, . . . any criminal act scored under OV 12 would not be a criminal act found by the jury.” People v Norfleet, 317 Mich App 649, 667-668 (2016). Accordingly, where there was no indication in the record that the defendant admitted committing the contemporaneous felonious criminal acts supporting the score of 10 points for OV 12, and where removing the 10 points resulted in a change in the applicable guidelines range, he was entitled to a remand for possible resentencing under People v Lockridge, 498 Mich 358, 395, 397 (2015), and United States v Crosby, 397 F3d 103 (CA 2, 2005), even though the “evidence was [otherwise] sufficient to support” the score. Norfleet, 317 Mich App at 667-668. See also Section 2.12(B)(4) for a discussion of judicial fact-finding after Lockridge.