Hitting Victim in Head with Airsoft Gun Results in 50 Offense Variable Points

This past week, Justice David Viviano had the opportunity to issue his first opinions dealing with appeals in criminal cases.  In People v Hardy and People v Glenn, Docket Numbers 144327 and 144979, two cases consolidated for the appeal, the Court dealt with the proper scoring of Offense Variable 7.  In each case the trial court had assessed 50 points for the variable because the statute authorizes scoring where "a victim was treated with sadism, torture, or excessive brutality or conduct designed to substantially increase the fear and anxiety a victim suffered during the offense."  MCL 777.37(1)(a).  Hardy's carjacking case originated in Oakland County (Judge Michael Warren) and Glenn plead guilty to armed robbery in Jackson County (Judge John McBain).

The prosecutor argued that Hardy had engaged in conduct designed to substantially increase the fear and anxiety of the victim when, in addition to pointing a shotgun at the victim in order to steal the car, he racked the shotgun.  The Court turned to the United States Army Technical Manual to define "racking" a shotgun as pulling the slide of the weapon along the forestock, then pushing it back to its original position.  The prosecutor argued the act of racking the gun was only to threaten the victim with immediate and violent death.  His trial counsel agreed, stating, "I cannot argue with that, your honor."  Judge Warren sentenced Hardy to 12 to 50 years in prison.  His appellate counsel argued Hardy had received ineffective assistance of counsel because the trial attorney failed to object to the scoring.

Glenn, while robbing a gas station, had hit the victim in the back of the head with his plastic airsoft shotgun, knocking him to the ground, before emptying the cash register.  The Jackson County Prosecutor argued the act of hitting the victim in the back of the head was designed to get them to move faster and to be afraid.  In Glenn's case his attorney did object, but Judge McBain found in favor of the prosecution and sentenced Glenn to 15 to 30 years in the MDOC.

In each case, Justice Viviano, joined by Justices Young, Kelly, Zahra, Markman and McCormack, held that the trial court had appropriately added 50 points to the defendants' offense variable scores.  The Court found that if 1) a defendant engages in conduct beyond that necessary to commit the crime and 2) the defendant intends to increase the victim's fear and anxiety by a considerable amount, a sentencing judge may then add 50 points for OV 7.

In both cases, the defendants had argued their actions were not designed to increase the fear and anxiety of the victim, but were committed merely to urge compliance with their demands - in Hardy's case to turn over the car and in Glenn's case, to hurry and empty the cash register.  The Court, however, found that in order to gain compliance from the victims, the defendants were increasing the victims' fear and anxiety by a considerable amount.  In each case the trial court had not erred.