People of State v. Huston

• Decision Date: 26 July 2011
• Docket Number: Docket No. 141312.
• Parties: PEOPLE of the State of Michigan, Plaintiff–Appellant,v.Cecil D. HUSTON, Defendant–Appellee.
• Court: Michigan Supreme Court

489 Mich. 451

802 N.W.2d 261

PEOPLE of the State of Michigan, Plaintiff–Appellant,

v.Cecil D. HUSTON, Defendant–Appellee.

Docket No. 141312.

Supreme Court of Michigan.

July 26, 2011.

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Arthur J. Cotter, Prosecuting Attorney, and Aaron J. Mead, Assistant Prosecuting Attorney, for the people.Ronald D. Ambrose for defendant.Ronald J. Schafer and Terrence E. Dean for amicus curiae the Prosecuting Attorneys Association of Michigan.

Opinion

MARKMAN, J.

At issue in this case is whether the trial court properly assessed 15 points for offense variable (OV) 10. OV 10 should have 15 points assessed when the defendant has engaged in “predatory conduct” to “exploit [ ] ... a vulnerable victim.” MCL 777.40(1)(a). Contrary to the Court of Appeals' holding, in order to assess 15 points for OV 10, the defendant's preoffense conduct only has to be directed at “a victim,” not any specific victim, and the victim does not have to be inherently vulnerable. Instead, a defendant's “predatory conduct,” by that conduct alone ( eo ipso ), can create or enhance a victim's “vulnerability.” In this case, defendant engaged in “predatory conduct” to “exploit[ ] ... a vulnerable victim” because, before defendant and his cohort robbed the victim, they were lying in wait, armed with two BB guns and a knife, and hidden from the victim, who was by herself at night in an otherwise empty parking lot. Because the trial court properly assessed 15 points for OV 10, we reverse the judgment of the Court of Appeals and reinstate the trial court's judgment of sentence.

I. HISTORY

This case arises from events that occurred in February 2005 in the Orchards Mall parking lot in Benton Harbor. The victim, Jackie Flanagan, drove to the mall and parked her vehicle in front of the Sears store where she intended to shop. The victim chose a well-lit parking spot because it was dark outside. When she got out of her vehicle, she was approached by defendant and his cohort, who were 15 and 16 years old respectively. One of the boys pointed a BB gun at the victim's face and demanded her purse, wallet, and car keys, while the other boy put a BB gun to the back of the victim's head. The victim gave the boys her cell phone and car keys but had trouble getting her purse off her shoulder. Defendant's cohort pushed the victim to the ground and cut the purse from her shoulder with a utility knife. Both boys then fled the scene in the victim's vehicle. The next day, police recovered the victim's vehicle and found two BB guns inside it. Further investigation led police to defendant and his cohort.

Defendant was charged with armed robbery and carjacking. He entered a plea of guilty of armed robbery, MCL 750.529, pursuant to a plea bargain offered by the prosecutor.¹ At sentencing, defendant challenged the scoring of OV 10, arguing that it was incorrectly scored at 15 points. OV 10 addresses “exploitation of a vulnerable victim” and requires “predatory conduct” for the assessment of 15 points. MCL 777.40(1)(a). Defendant argued that there was nothing “predatory” about this robbery because it was a “random” act. The trial court rejected defendant's argument and concluded that predatory conduct was established for purposes of scoring OV 10 at 15 points because defendant was lying in wait in the parking lot where he robbed the victim. Defendant's recommended minimum sentence range under the sentencing guidelines was calculated as 126 to 210 months. The trial court sentenced defendant to 180 months to 600 months in prison.

On appeal in the Court of Appeals,² defendant argued that the trial court had improperly scored OV 10 and that this error affected his sentencing guidelines range.³ In a published opinion per curiam, the Court of Appeals reversed defendant's judgment of sentence and remanded for resentencing, concluding that OV 10 should have been scored at zero points, not at 15 points. People v. Huston, 288 Mich.App. 387, 397–398, 794 N.W.2d 350 (2010). The Court of Appeals held that the “vulnerability” of a victim must be determined by characteristics personal to the victim. Id. at 395–397, 794 N.W.2d 350. The Court of Appeals acknowledged that at the time of the offense it was dark outside and the victim was alone, which may have made the robbery easier to carry out. Id. at 397, 794 N.W.2d 350. Nevertheless, the Court of Appeals reasoned that those facts failed to establish that the victim was personally or inherently vulnerable and, therefore, that the trial court erred by assessing 15 points for OV 10. Id.

This Court granted the prosecutor's application for leave to appeal in order to consider whether the “vulnerability” of a victim, for purposes of scoring OV 10, is limited to the victim's personal characteristics. People v. Huston, 488 Mich. 876, 788 N.W.2d 662 (2010).

II. STANDARD OF REVIEW

The interpretation and application of the legislative sentencing guidelines, MCL 777.1 et seq. , involve legal questions that this Court reviews de novo. People v. Morson, 471 Mich. 248, 255, 685 N.W.2d 203 (2004).

III. ANALYSIS

MCL 777.40 provides:

(1) Offense variable 10 is exploitation of a vulnerable victim. Score offense variable 10 by determining which of the following apply and by assigning the number of points attributable to the one that has the highest number of points:

(a) Predatory conduct was involved .............................. 15 points

(b) The offender exploited a victim's physical disability, mental disability, youth or agedness, or a domestic relationship, or the offender abused his or her authority status ................................... 10 points

(c) The offender exploited a victim by his or her difference in size or strength, or both, or exploited a victim who was intoxicated, under the influence of drugs, asleep, or unconscious .............................. 5 points

(d) The offender did not exploit a victim's vulnerability ...... 0 points

(2) The mere existence of 1 or more factors described in subsection (1) does not automatically equate with victim vulnerability.

(3) As used in this section:

(a) “ Predatory conduct ” means preoffense conduct directed at a victim for the primary purpose of victimization.

(b) “Exploit” means to manipulate a victim for selfish or unethical purposes.

(c) “ Vulnerability ” means the readily apparent susceptibility of a victim to injury, physical restraint, persuasion, or temptation.

(d) “Abuse of authority status” means a victim was exploited out of fear or deference to an authority figure, including, but not limited to, a parent, physician, or teacher. [Emphasis added.]

A. “PREDATORY CONDUCT”

Contrary to the Court of Appeals' and the dissents' contentions, MCL 777.40(3)(a) does not define “predatory conduct” to mean preoffense conduct directed at the victim; instead, MCL 777.40(3)(a) defines “predatory conduct” to mean “preoffense conduct directed at a victim....” ⁴ (Emphasis added.) As this Court has explained:

“Traditionally in our law, to say nothing of our classrooms, we have recognized the difference between ‘the’ and ‘a.’ ‘The’ is defined as ‘definite article. 1. (used, esp. before a noun, with a specifying or particularizing effect, as opposed to the indefinite or generalizing force of the indefinite article a or an)....’ Random House Webster's College Dictionary, p. 1382.”

[ Robinson v. Detroit, 462 Mich. 439, 461, 613 N.W.2d 307 (2000) (citation omitted).]

Because the Legislature chose to use the words “a victim” in MCL 777.40(3)(a), we must construe MCL 777.40(3)(a) to mean a victim, rather than the victim. That is, we must take care not to construe MCL 777.40(3)(a) as requiring that the defendant's preoffense predatory conduct have been directed at one particular or specific victim, but instead as requiring only that the defendant's preoffense predatory conduct have been directed at a victim.⁵

Furthermore, from a policy perspective, we are unsure why the Legislature would want a defendant who directed his preoffense conduct toward a specific victim, say, for example, at his ex-girlfriend, to be sentenced more severely than the defendant who directed his preoffense conduct at the community-at-large by lying in wait, armed, in a parking lot at night, waiting for the first random person to come along so that he or she could be criminally victimized. Who poses the greater threat to society—the defendant who seeks revenge on his ex-girlfriend, and thus who directs his preoffense conduct only toward a single person, or the defendant who seeks opportunistically to rob the first vulnerable person within the community-at-large who happens along? Certainly, the latter instills greater fear and apprehension in more people and has a greater impact on society. Indeed, this case illustrates how this fear is diffused throughout the community. The victim here felt vulnerable even before the attack and testified that she specifically “circled the parking lot” to “park[ ] safely under a street lamppost....” Unfortunately, her fears were justified, and defendant's preoffense conduct effectively made a victim not only of this victim, but all members of the larger community, each of whom must take precautions against criminal behavior and each of whom may have reasonable apprehensions concerning the threat of criminal conduct being directed toward them.

This also explains why the Legislature chose to assess 15 points for “predatory conduct,” the highest number of points that can be assessed under OV 10. The hierarchical range of points that may be assessed under OV 10 extends from zero to 15 points. Zero points are to be assessed when “[t]he offender did not exploit a victim's vulnerability.” MCL 777.40(1)(d). Five points are to be assessed when “[t]he offender exploited a victim by his or her difference in size or strength, or both, or exploited a victim who was intoxicated, under the influence of drugs, asleep, or unconscious”—things that...