Question as originally presented: The sentencing offense resulted from a 17-year-old having intercourse with a 14-year-old who became pregnant. The health department notified police and charges were subsequently filed. Can 10 points be scored for OV 10 based on exploitation of a vulnerable victim (youth) even though the criminal charge already considered/was based on the victim’s age?
The fact that the defendant’s conduct was considered in the sentencing offense does not disqualify it for consideration under OV 10, and even though conduct outside of the sentencing offense can be considered under OV 10, it is also permissible to consider conduct that occurred during the sentencing offense. See People v McGraw, 484 Mich 120, 133 (2009). A victim’s youth is a factor that is relevant to whether the victim was vulnerable for purposes of OV 10. People v Cannon, 481 Mich 152, 158-159 (2008), overruled in part on other grounds in People v Huston, 489 Mich 451, 458 n 4 (2011). However, “[t]he mere existence of one of these factors does not automatically render [a] victim vulnerable,” and “[t]he absence of one of these factors does not preclude a finding of victim vulnerability[.]” Cannon, 481 Mich at 158-159, n 11. Note that OV 10 “requires that the offender have somehow exploited a vulnerable victim[.]” People v Needham, 299 Mich App 251, 252, 258 (2013). More information is necessary to determine if the facts of your case support a score under OV 10. Numerous examples of cases analyzing exploitation of a vulnerable victim based on age are available in the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 1, Section 3.22(B)(4).