Opinion
Prior report: 2010 WL 334560.
Order
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 J. 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) 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, 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:
People v. Cannon, 481 Mich. 152, 158, 749 N.W.2d 257 (2008).
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.[]
Id. at 158-9, 749 N.W.2d 257, citing MCL 777.40(1)(b) and (c).
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.