Order Michigan Supreme Court
Lansing, Michigan
April 15, 2011 Robert P. Young, Jr.,
Chief Justice
140744 Michael F. Cavanagh
Marilyn Kelly
Stephen J. Markman
Diane M. Hathaway
Mary Beth Kelly
PEOPLE OF THE STATE OF MICHIGAN, Brian K. Zahra,
Plaintiff-Appellant, Justices
v SC: 140744
COA: 288466
Jackson CC: 08-004046-FH
TERRY LEE BRANDT,
Defendant-Appellee.
_________________________________________/
On January 20, 2011, the Court heard oral argument on the application for leave to
appeal the January 28, 2010 judgment of the Court of Appeals. On order of the Court,
the application is again considered, and it is DENIED, because we are not persuaded that
the question presented should be reviewed by this Court.
MARILYN KELLY, J. (concurring).
I concur in this Court’s order denying the prosecutor’s application for leave to
appeal. I believe that the Court of Appeals correctly determined that offense variable ten
(OV 10)1 should not be scored under the circumstances of this case. I write separately to
address the broader jurisprudentially significant question of whether an institution ever
may be a “vulnerable victim” under OV 10.
Offense variable 10 concerns exploitation of a vulnerable victim. In People v
Cannon,2 this Court held that, for points to be assessed under OV 10, the defendant must
have exploited the victim’s vulnerability. “Vulnerability” is defined in MCL
777.40(3)(c) as “the readily apparent susceptibility of a victim to injury, physical
restraint, persuasion, or temptation.” The statute instructs us as follows:
1
MCL 777.40.
2
People v Cannon, 481 Mich 152, 158 (2008).
2
Factors to be considered in deciding whether a victim was vulnerable
include (1) the victim’s physical disability, (2) the victim’s mental
disability, (3) the victim’s youth or agedness, (4) the existence of a
domestic relationship, (5) whether the offender abused his or her authority
status, (6) whether the offender exploited a victim by his or her difference
in size or strength or both, (7) whether the victim was intoxicated or under
the influence of drugs, or (8) whether the victim was asleep or
unconscious.[3]
Abuse of authority is the only one of these factors that could feasibly apply to an
institutional victim. However, I conclude that the Legislature never intended even it to
apply to an institution. Under section (3)(d) of the act, “[a]buse 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.” Given the words used, it is apparent to
me that this definition contemplates a living human victim only. An institutional victim
cannot conform to this definition. Because it cannot be afraid or show deference, it
cannot be “exploited out of fear or deference.”
In short, the language about a vulnerable victim in OV 10 can never properly be
applied to an institutional victim. Therefore, I believe the Court should clarify that an
institution may not be considered a vulnerable victim for purposes of assessing points
under OV 10.
3
Id. at 158-9, citing MCL 777.40(1)(b) and (c).
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
April 15, 2011 _________________________________________
y0412 Clerk