MSC holds that OV 7 applies where defendant used more than minimum necessary force for purpose of increasing fear
In the consolidated cases of People v. Glenn and People v. Hardy, the Michigan Supreme Court clarified what factual basis is sufficient to score Offense Variable (“OV”) 7 under the Michigan Sentencing Guidelines for “aggravated physical abuse”. MCL § 777.37. Fifty points under OV 7 is warranted where the defendant has: 1) used more force than the minimum necessary to commit the specific offense; and, 2) the use of force was designed to increase the victim’s fear or anxiety “by a considerable amount”.
In Glenn, the defendant was convicted of armed robbery and assault. During the robbery, the defendant used a sawed-off airsoft gun to hit two store clerks in the head. At sentencing, the trial court assessed the defendant fifty points under OV 7. The Court of Appeals reached the opposite conclusion and held that OV 7 was improperly scored because it could not be said that the conduct was designed to “substantially” increase fear and anxiety beyond that normally present in most armed robberies. The Court disagreed and held that defendant’s actions went beyond the minimum conduct needed to armed robbery. Further, the Court concluded that striking the clerks in the head with this weapon demonstrated that the defendant was willing to harm the victims and used this fear to assure compliance with his demands. Importantly, in a footnote the Court noted that OV 7 was only scored on the armed robbery count, not the felonious-assault charge. Accordingly, the case was remanded to the trial court with instructions to reinstate the judgment of sentence.
Hardy was convicted of carjacking. During the commission of the offense, he pointed a firearm at the victim and racked it. Just as in Glenn, at sentencing Hardy was scored fifty points under OV 7 for conduct designed to substantially increase the fear and anxiety of the victim. Hardy’s delayed application for leave to appeal to the Court of Appeals was denied. The Supreme Court began its analysis by establishing the baseline minimum conduct necessary to commit carjacking. The Court noted that simply showing a weapon, or perhaps pointing it at the victim, would have been sufficient to threaten the victim. Ultimately, the Court concluded that racking a shotgun exceeded this minimum conduct. Although Hardy argued that he racked the shotgun merely to assure the victim’s compliance with his demands, the Court disagreed. Instead, the Court concluded that the act of racking the shotgun likely communicated to the victim that if he failed to follow instructions, he or she would face “imminent death”. Therefore, the Court found that the trial court had properly assessed OV 7 for racking the shotgun.