Wednesday, June 4, 2008

In the jungle, the mighty jungle ...

"A lion that waits near a watering hole hoping that a herd of antelope will come to drink is not engaging in conduct directed at a victim. However, a lion that sees antelope, determines which is the weakest, and stalks it until the opportunity arises to attack it engages in conduct directed at a victim. Contrast that with an individual who intends to shoplift and watches and waits for the opportunity to commit the act when no one is looking. The individual has not directed any action at a victim."

Michigan Supreme Court Justice Marilyn Kelly, explaining what constitutes "preoffense conduct directed at a victim" for the purpose of assessing points for predatory conduct under sentencing guideline offense variable 10.

Cannon and a couple of his buddies waited in a stolen pickup truck until all of the customers in a nearby Burger King cleared out. The trio went inside. Cannon acted as the lookout while the other two disguised themselves, brandished a gun and almost made off with cash from the store safe. An employee hiding in a walk-in freezer called the cops, who arrived quickly and captured all three a short time later.

The prosecutor argued that the three engaged in predatory conduct by scoping out the restaurant, waiting until the customers were gone, then going in and committing the robbery. This was conduct worthy of a 15-point assessment under OV 10 (exploitation of a vulnerable victim), the prosecutor urged. The trial court and Court of Appeals bought the argument.

But in doing so, wrote Kelly, the lower courts used the wrong test to determine whether the conduct was predatory. Here's what lower courts need to look at:

"(1) Did the offender engage in conduct before the commission of the offense?
"(2) Was this conduct directed at one or more specific victims who suffered from a readily apparent susceptibility to injury, physical restraint, persuasion, or temptation?
"(3) Was victimization the offender's primary purpose for engaging in the preoffense conduct? If the court can answer all these questions affirmatively, then it may properly assess 15 points for OV 10 because the offender engaged in predatory conduct under MCL 777.40."
Kelly announced the test on behalf of a 6-1 majority in People v. Cannon.

Justice Cavanagh, concurring in part and dissenting in part, quibbled with the majority's decision to remand the case so the trial court could apply the three-part test.
"Now that we have clarified the proper interpretation of OV 10, I would review the record in this case to determine whether there was evidence that defendant exploited a vulnerable victim. Our determination of this issue is not only authorized, but prudent. We have the same record evidence before us that the trial court will have on remand; moreover, our application of the proper interpretation would serve as useful guidance for the bench and bar."

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