In People v Hardy, __ Mich __ (#144327, 7/29/2013) the Michigan Supreme Court held, for purposes of the sentencing guidelines, that the plain meaning of the phrase “conduct designed to substantially increase the fear and anxiety a victim suffered during the offense” does not require that a defendant’s conduct be “similarly egregious” to “sadism, torture, or excessive brutality” for OV 7 to be scored at 50 points. The sentencing guidelines provide that a trial court can properly assess 50 points under OV 7 if it finds that a defendant’s conduct falls under one of the four categories of conduct listed in subsection (1)(a). (sadism, torture, excessive brutality, or whether defendants engaged in conduct designed to substantially increase the fear and anxiety a victim suffered during the offense). Although the sentencing guidelines explicitly direct courts to disregard certain conduct inherent in a crime when scoring OVs 1, 3, 8, 11, and 13, the Sentencing Guidelines otherwise allow a factor that is an element of the crime charged to be considered when computing an offense variable score.
Recognizing, however, that “[a]ll . . . crimes against a person involve the infliction of a certain amount of fear and anxiety”, the relevant inquiries are (1) whether the defendant engaged in conduct beyond the minimum required to commit the offense; and, if so, (2) whether the conduct was intended to make a victim’s fear or anxiety greater by a considerable amount. In making this determination, because the “conduct designed” category only applies when a defendant’s conduct was designed to substantially increase fear, to assess points for OV 7 under this category, a court must first determine a baseline for the amount of fear and anxiety experienced by a victim of the type of crime or crimes at issue. To make this determination, a court should consider the severity of the crime, the elements of the offense, and the different ways in which those elements can be satisfied. Then the court should determine, to the extent practicable, the fear or anxiety associated with the minimum conduct necessary to commit the offense. Finally, the court should closely examine the pertinent record evidence, including how the crime was actually committed by the defendant.
As noted above, evidence which satisfies an element of an offense need not be disregarded solely for that reason. Instead, all relevant evidence should be closely examined to determine whether the defendant engaged in conduct beyond the minimum necessary to commit the crime, and whether it is more probable than not that such conduct was intended to make the victim’s fear or anxiety increase by a considerable amount.
Recognizing, however, that “[a]ll . . . crimes against a person involve the infliction of a certain amount of fear and anxiety”, the relevant inquiries are (1) whether the defendant engaged in conduct beyond the minimum required to commit the offense; and, if so, (2) whether the conduct was intended to make a victim’s fear or anxiety greater by a considerable amount. In making this determination, because the “conduct designed” category only applies when a defendant’s conduct was designed to substantially increase fear, to assess points for OV 7 under this category, a court must first determine a baseline for the amount of fear and anxiety experienced by a victim of the type of crime or crimes at issue. To make this determination, a court should consider the severity of the crime, the elements of the offense, and the different ways in which those elements can be satisfied. Then the court should determine, to the extent practicable, the fear or anxiety associated with the minimum conduct necessary to commit the offense. Finally, the court should closely examine the pertinent record evidence, including how the crime was actually committed by the defendant.
As noted above, evidence which satisfies an element of an offense need not be disregarded solely for that reason. Instead, all relevant evidence should be closely examined to determine whether the defendant engaged in conduct beyond the minimum necessary to commit the crime, and whether it is more probable than not that such conduct was intended to make the victim’s fear or anxiety increase by a considerable amount.
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