2.15OV 2—Lethal Potential of the Weapon Possessed or Used

A.Scoring

OV 2 is scored for crimes against a person, crimes against property, and crimes involving a controlled substance. MCL 777.22.

Step 1: Determine which statements apply to the circumstances of the offense. MCL 777.32(1).

Step 2: Review special scoring provision in MCL 777.32(2) then assign the point value indicated by the applicable statement having the highest number of points. MCL 777.32(1).

B.Issues

1.Application of McGraw Rule

“Offense variables must be scored giving consideration to the sentencing offense alone, unless otherwise provided in the particular variable.” People v McGraw, 484 Mich 120, 133 (2009). MCL 777.32 does not specifically authorize the court to consider facts outside the sentencing offense. See also People v Jackson, ___ Mich App ___, ___ (2024) (holding that “[b]ecause the trial court’s scoring of OVs 1 and 2 required that defendant had used, or at least possessed, a firearm in his assault on [the victim], both of those OVs should have been scored at zero” where defendant had been acquitted of felonious assault and felony-firearm).

See Section 2.13(A) for a general discussion of the McGraw rule.

2.Multiple Offender Provision

The instructions for scoring OV 2 include specific directions in cases involving multiple offenders.¹ For OV 2, where multiple offenders are involved and one offender is assessed points under the variable, all offenders must be assessed the same number of points. MCL 777.32(2).

Two conditions must be satisfied before the multiple offender provision is triggered: (1) the case must be a multiple offender case, and (2) one offender must be assessed points for possessing a weapon. People v Dupree, 511 Mich 1, 7 (2023). Accordingly, even where there is no dispute that multiple offenders were involved in a crime and a weapon was possessed and/or used, if the defendant being sentenced did not possess and/or use a weapon during the offense, and “no other offender was assessed points” under OV 1, then OV 1 must be “scored at zero points.” Id. at 4. In Dupree, three men robbed a store, only one man was armed during the robbery, and only defendant was arrested, charged, and convicted of the robbery. Id. at 4-5. “There is no evidence that defendant was the offender who wielded the gun in this robbery.” Id. at 6. Under these facts, “the second condition, requiring another offender to have been assessed points for possessing a weapon, was not satisfied.” Id. at 7. “Since defendant was the only person arrested, convicted, and assessed points under OVs 1 and 2, points could only be assessed under OVs 1 and 2 if he had possessed and/or used the weapon himself.” Id.

Further, the multiple offender provision applies only when the offenders are being scored for the same offense. People v Johnston, 478 Mich 903, 904 (2007).² The multiple offender provision does not require that the court assess an offender the same number of points as other offenders involved in the same criminal episode if the offender was the only person convicted of the specific crime being scored. Id. at 904. In other words, when criminal conduct involves more than one offender but only one offender is convicted of a specific crime arising from the conduct, that particular crime does not involve multiple offenders for purposes of scoring OV 2.

For a discussion of cases applying the multiple offender provisions, see Section 2.13(B)(2).

3.Inoperable Weapons

The definition of firearm in MCL 750.222(e) “does not prescribe a requirement that the weapon be ‘operable’ or ‘reasonably or readily repairable.’” People v Peals, 476 Mich 636, 638 (2006). “[T]he design and construction of the weapon, rather than its state of operability, are relevant in determining whether it is a ‘firearm.’” Id. (construing the definition of firearm to determine whether the defendant was guilty of being a felon in possession of firearm and of possession of a firearm during the commission of a felony). See also People v Humphrey, 312 Mich App 309, 318 (2015) (holding that “the operability of a firearm is not relevant to firearms offenses under Chapter XXXVII of the Michigan Penal Code, and the inoperability of a pistol is [not] a valid affirmative defense to a [carrying a concealed weapon (CCW)] charge”).

4.Harmful Substances

For purposes of scoring OV 2, harmful chemical substance does not include heated cooking oil because, under MCL 750.200h(i), cooking oil is not a substance that “possess[es] an inherent or intrinsic ability or capacity to cause death, illness, injury, or disease” as required by the term harmful. People v Blunt, 282 Mich App 81, 86, 89 (2009) (holding that the court improperly scored points for OV 1 where the defendant threw hot oil at the victim’s face). Any substance that is innocuous in its unaltered state is not a harmful substance under MCL 777.31(1)(b). Blunt, 282 Mich App at 88.

Pepper spray satisfies the definition of “harmful chemical substance” for purposes of scoring OV 2 because it causes an injury; specifically, pepper spray is designed to “incapacitate a person with intense pain and involuntary physiological reactions.” People v Savage, 327 Mich App 604, 624 (2019). Further, although “pepper spray is designed to inflict temporary injury,” this “does [not] mean that the Legislature intended to exclude the spray from the category of harmful chemical substances,” because “a temporary injury is still an injury[.]” Id. at 624, 627, 634 (noting that OV 1 and OV 2 both refer to a “harmful chemical substance” and use the same definition for the term).

“[Z]ero points should have been scored for” OV 1 and OV 2 where the methamphetamine involved in the case “was not used or possessed as a weapon.” People v Lutz, 495 Mich 857, 857 (2013). Moreover, “[i]nvolvement in, or exposure to, a methamphetamine lab or its constituent parts, even if an explosion occurs, without more, does not constitute the use of a weapon under OV 1.”People v Gary, 305 Mich App 10, 11-14 (2014) (holding that where the defendant purchased supplies, including lithium batteries and fuel, for the production of methamphetamine by someone else, the trial court improperly scored points under OV 1 and OV 2; although lithium batteries and fuel “could constitute ‘harmful chemical substances’ and their employment in a methamphetamine lab could constitute part of an ‘explosive device’ [under MCL 777.31(1)(b),] as demonstrated by the fact that [the] lab exploded, causing . . . serious injury,” the evidence did not support a finding that the batteries, fuel, and methamphetamine lab were used as weapons).

“OV 2, MCL 777.32, must be scored at 0 points where [an] incendiary device was part of the process of manufacturing methamphetamine and was not possessed or used as a weapon.” People v Jackson, 497 Mich 857, 857-858 (2014).

5.Use of Bare Hands as a Weapon

“[A]n offender’s bare hands cannot be treated as weapons under OV 1 because, unlike a gun or a knife, hands are not an article distinct from the particular offender.” People v Hutcheson, 308 Mich App 10, 14-16 (2014) (holding that points may not be assessed under OV 1 or OV 2 where “defendant used only his bare hands, and no distinct weapon, to assault the victim”).

6.Unconventional Weapons

One point was properly assessed under OV 2 where the evidence supported the conclusion that the defendant “possessed and used a tire iron during the robbery” because “a tire iron is a potentially dangerous weapon.” People v Rodriguez, 327 Mich App 573, 577 (2019) (quotation marks and citation omitted).

7.Sufficient Evidence to Score OV 2

Five points were appropriately scored under OV 2 where, even though the defendant was acquitted of armed robbery, trial testimony and the defendant’s PSIR indicated that the defendant brandished a gun during the robbery and pointed it at a victim’s face. People v Harverson, 291 Mich App 171, 182-183 (2010). But see People v Beck, 504 Mich 605, 629 (2019) (holding “that due process bars sentencing courts from finding by a preponderance of the evidence that defendant engaged in conduct of which he was acquitted”). Additionally, in People v Johnson, ___ Mich App ___, ___ (2024), the Court noted that Beck does not apply to hung juries—cases in which a jury has made no findings about the conduct at issue. See Section 2.13(E).

The trial court did not err by assessing five points under OV 2 where a preponderance of the evidence showed that the defendant possessed a box cutter during the commission of the sentencing offenses—prisoner taking a hostage and kidnapping. People v Montague, 338 Mich App 29, 52, 53 (2021) (the evidence included the victim’s testimony that defendant grabbed a box cutter and continually gestured at her while holding the box cutter, a physical box cutter that was found on the ground near a vehicle defendant entered, and testing that showed the defendant’s DNA matched DNA found on the box cutter). The fact that the jury acquitted defendant of armed robbery and felonious assault precluded the scoring of OV 1 (aggravated use of a weapon); however, those acquittals did not preclude the finding that “defendant possessed the box cutter when he committed prisoner taking a hostage and kidnapping.” Id. at 54.