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Can you score OV 9 or OV 10 for convictions of child sexually abusive activity offenses?

Question as Originally Submitted: Defendant was convicted of Child Sexually Abusive Activity-Distributing Or Promoting, Child Sexually Abusive Materials-Possession, and Computers-Using to Commit a Crime. The defendant received and traded video online. Do you have any case law pertaining to scoring OV 9 or OV 10 on the above offenses?

Regarding OV 9, there are no published cases dealing with the scoring of this variable in the context of the specific crimes you mention. However, a couple unpublished decisions have addressed OV 9 in this context. Note that unpublished decisions are not precedentially binding. MCR 7.215(C)(1). In People v Houck, unpublished per curiam opinion of the Court of Appeals, issued July 23, 2009 (Docket No. 285203), p 1, the defendant pleaded guilty to possessing child sexually abusive material, producing child sexually abusive material, and using a computer to commit those offenses. The Court held that the trial court erred by counting as victims the children depicted in thousands of pornographic images that defendant downloaded from the internet and put on discs; the Court held that OV 9 should have been scored at zero points because the defendant did not place the children in danger of physical injury or loss of life and had no contact with the children at all. Id. at p 2. Similarly, in People v Schmeling, unpublished per curiam opinion of the Court of Appeals, issued January 10, 2008 (Docket No. 275220), p 1, the defendant pleaded guilty to using a computer to commit a crime and possession of child sexually abusive material. The Court held that OV 9 should have been scored at zero points because there was no evidence that the defendant placed any of the children depicted in the photographs at risk of physical injury during the commission of the criminal transaction giving rise to his conviction. Id. at p 2.

There is case law that has considered those offenses or similar ones in the context of OV 10, most relevantly, in People v Needham, 299 Mich App 251, 258 (2013), the Court held that OV 10 was properly scored where the defendant possessed child sexually abusive material because the multiple young children depicted in the material were real victims. The Court held that first-hand, physical contact with a victim is not required to exploit the victim, concluding that “[b]y possessing sexually abusive images of children, defendant made those children the victims of his sexual offense and exploited them for his sexual gratification,” and this conduct mandated the scoring of OV 10 at 10 points for the exploitation of vulnerable victims. Id. at 258, 260.

Regarding the crime of using a computer to commit a crime, the Court has held that communication with an undercover police officer does not warrant the scoring of OV 10 because there is not actually a vulnerable victim in that circumstance. See People v Russell (On Remand), 281 Mich App 610, 615 (2008) (holding “regardless of an offender's subjective intent, if no vulnerable victim was in fact placed in jeopardy or exploited by an offender's actions, OV 10 does not apply”).

Tags: OV 09 OV 10

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