Exploitation And Offense Variable 10

Words are a lawyer’s tools of trade, and that description proves apt when working with the legislative sentencing guidelines. Statutory language is paramount, and lawyers routinely argue over the meaning of key words and phrases. Recently, the Court of Appeals provided guidance on the meaning of the word “exploitation” in the context of scoring Offense Variable 10. In so doing, the Court opened the door to additional challenges to words such as “selfish,” “unethical,” and “manipulate.”

OV 10, by its terms, considers the exploitation of a vulnerable victim: “Offense variable 10 is exploitation of a vulnerable victim.” MCL 777.40(1). When considering the variable as a whole, the Michigan Supreme Court recognized the need to find both exploitation and a vulnerable victim, and that holds true when scoring for predatory conduct. People v Cannon, 481 Mich 152 (2008).

Within the variable itself, the Legislature defined the word “exploit”: “‘Exploit’ means to manipulate a victim for selfish or unethical purposes.” MCL 777.40(2)(b). The Supreme Court did not offer its own definition of “exploit,” but it did recognize that “preoffense conduct directed at a victim for the primary purpose of victimization inherently involves some level of exploitation.”  Cannon, at 159. 

In the recent case of People v Ziegler, ___ Mich App ___ (Docket No. 355697, 9/22/22), the Court of Appeals tackled the statutory definition of “exploitation,” concluding that the word “intrinsically establishes an element of intent; any manipulation must have been done with a goal of accomplishing something selfish or unethical.” Slip op at 4 (emphasis in original). “[F]or purposes of OV 10, ‘exploitation’ means the defendant intended to gain something from the manipulation of the victim at some kind of cost to the victim.” Id. Further, “[w]e cannot conclude that OV 10 was intended by the Legislature to extend to mere irresponsibility, no matter how egregious and no matter how vulnerable the victim.” Id.

The Ziegler decision takes an interesting turn when applying the law to the facts. Ms. Ziegler was arrested at 3:30 in the morning while driving drunk with her six-year-old daughter in the car. The child received minor injuries following a single-vehicle accident. The prosecutor argued that OV 10 should be scored in light of the child’s vulnerability, and the trial judge agreed. The Court of Appeals reversed, finding no exploitation because “we cannot find any evidence that defendant placed her daughter in the truck and drove drunk for the purpose of gaining something from her daughter at a cost to the daughter.” Slip op at 4. Going one step further, the Court of Appeals stated there was “no evidence that defendant might even have had a reason or motive to be selfish.” Id. This latter statement was made despite the opinion’s acknowledgment that Ms. Ziegler told the police she was on her way from an ex-boyfriend’s house to a friend’s house. Slip op at 1.

The decision begs the question: What would qualify as a selfish or unethical purpose? The taped oral argument provides some hints. Judge Swartzle offered his opinion that driving drunk for the “mundane” purpose of going to a friend’s house or to the store for more alcohol would constitute selfish behavior. The appellate prosecutor took at different tack, arguing that a failure to protect one’s children from the danger of a parent’s drunk driving constitutes selfish behavior. One can also envision an argument that drunk driving by a parent with a child in the car is unethical, if one defines “unethical” as immoral behavior. Yet the Court of Appeals apparently rejected all of these interpretations.

It appears the panel’s perception of the crime – and perhaps Ms. Ziegler’s statement to the police – may have been influenced by an oversight on the part of appellate defense counsel. Attorney Josh Hadley (name used with permission) asserted that Ms. Ziegler was leaving the home in the middle of the night due to an instance of domestic abuse. Unfortunately, the record was silent on this point, although there was information in the presentence report that was somewhat consistent with the assertion. This led to a dynamic discussion of when drunk driving with a child in the car might not constitute selfish or unethical behavior.

In the end, the published decision makes two fact-related points. First, it’s the prosecutor’s burden to prove the defendant’s intent or motive, and here there was either no evidence or insufficient evidence. Second, drunk driving may at times constitute nothing more than irresponsible behavior that would not fall within the confines of OV 10.

Going forward, attorneys might wish to consider yet another argument raised by Ms. Ziegler: that drunk driving with a child in the car is not conduct that involves “manipulation.” Does “manipulate” refer to “devious,” “skillful,” or “shrewd” behavior, as some dictionaries suggest? Footnote 1 It may be time to sharpen those tools of trade.

Anne Yantus
Michigan Sentencing PLLC
Copyright Anne Yantus 2023

Anne Yantus is a sentencing consultant who works with court-appointed and retained attorneys to promote more favorable sentencing outcomes. Anne credits her knowledge of Michigan sentencing law to the many years she spent handling plea and sentencing appeals with the State Appellate Defender Office. Following her time with SADO, Anne taught a criminal sentencing course at University of Detroit Mercy School of Law and subsequently continued to write and speak on felony sentencing law while serving as pro bono counsel with Bodman PLC. Anne welcomes your Michigan felony sentencing questions and is happy to arrange a consultation for court-appointed attorneys using available Michigan Indigent Defense Commission funds. Due to the volume of inquiries, the author is not able to respond to pro bono requests for assistance or analysis of individual fact situations.


Footnote

1. See Merriam-Webster Dictionary (2022) (manipulate means “to control or play upon by artful, unfair or insidious means especially to one’s own advantage”); Collins English Dictionary - Complete and Unabridged (2012 digital edition) (manipulate means “to manage or influence skillfully, especially in an unfair manner”); American Heritage Dictionary of the English Language (Fifth Edition, 2016) (manipulate means “To influence or manage shrewdly or deviously”).