In People v. Gloster, No. 151048, the Michigan Supreme Court granted mini-oral argument to consider defendant’s application for leave to appeal. At the oral argument, parties were directed to address whether the defendant was properly assigned 15 points for offense variable (“OV”) 10 for predatory conduct, MCL 777.40. Specifically, the parties are to address whether the scoring of OV 10 was proper based on the defendant’s own conduct or, instead, based on the conduct of the defendant’s accomplices.
Defendant was convicted of armed robbery after he acted as the getaway driver for a robbery in which a bystander was shot. At sentencing, the trial court assessed 15 points for OV 10, which is proper if predatory conduct is involved in the case. Predatory conduct is “preoffense conduct directed at a victim . . . for the primary purpose of victimization.” MCL 777.40(1)(d). The trial court found that defendant and his co-defendant engaged in predatory conduct because they targeted a certain type of victim, a vulnerable lone woman, and waited for the victim to exit a store before attacking.
The Court of Appeals affirmed the trial court’s decision. In doing so, the court held that the legislature did not intend “predatory conduct” to include any preoffense conduct, but “that which is commonly understood as being predatory in nature, e.g., lying in wait and stalking.” Because defendant aided and abetted the commission of the robbery by watching his co-defendant wait for and attack the victim, and then subsequently driving his co-defendant from the scene, defendant engaged in predatory conduct, as the term is used in OV 10. The Court of Appeals noted that this is the exact type of situation that OV 10 is designed to punish.
The Michigan Supreme Court granted mini-oral arguments to determine whether to grant leave to appeal the Court of Appeals’ decision or to take other action.