COA finds supplying materials to a methamphetamine producer is not “using a weapon” under OVs 1 and 2

In People v. Gary, the Court of Appeals determined the trial court improperly scored offense variables (“OVs”) 1 and 2, where the defendant had supplied his co-conspirator with fuel and batteries necessary for producing methamphetamine.  Here, Gary agreed to purchase materials for the production of methamphetamine for Michael Shearer in exchange for some of the methamphetamine.  After Shearer began making the methamphetamine there was an explosion and Shearer was injured.  Gary pled guilty to “operating or maintaining a methamphetamine lab” under MCL 333.7401c(2)(a).  The trial court scored 20 points under OV 1 for “aggravated use of a weapon” when “[t]he victim was subjected to or exposed to a . . . harmful chemical substance . . . or explosive device.”  The court also scored 15 points under OV 2 for the “lethal potential of the weapon possessed or used.”  Because there was no indication that Gary caused the explosion, or intended to cause an explosion, the court determined that OV 1 and 2 did not apply.  Accordingly, the court vacated the defendant’s sentence and remanded the case for resentencing. 
 
The Court of Appeals, relying on People v Ball, 297 Mich App 121, 122; 823 NW2d 150 (2012) and People v Lutz, __ Mich __; 836 NW2d 680 (2013), found neither offense variable applied.  The court reasoned that Gary did possess “harmful substances” (i.e., lithium batteries and Coleman fuel), and their use in the methamphetamine lab did create an “explosive device.”  However, as in Ball, Gary did not use the batteries or fuel as a weapon.  There was no indication that Gary attacked Shearer or intended to cause an explosion.  That is, “[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.”  Moreover, the court reasoned, the facts of the instant case were very similar to Lutz in which the supreme court determined that the trial court should have scored zero points for OV 1 when the defendant’s methamphetamine lab burned his apartment building.  The court then stated that OV 2 similarly did not apply as Gary’s “crime did not involve the use of a weapon.”  Therefore, as Gary did not use the batteries or fuel as weapons the trial court incorrectly scored both OV 1 and 2.

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