Michigan Court of Appeals Holds Offense Variable 14 Requires More Than Merely Possessing Gun

On May 6th, 2014, the Michigan Court of Appeals held in a criminal case that merely possessing a gun in a multi-offender situation is insufficient evidence to score offense variable 14 under the Michigan Sentencing Guidelines.

In People v Rhodes, Docket No. 310135, the Michigan Court of Appeals addressed an appeal in a criminal case from a conviction and sentence for the crimes of assault with intent to do great bodily harm in violation of MCL 750.84 and possesion of a firearm in the course of a felony (felony-firearm) in violation of MCL 750.227b.

The Court summarized the important facts of the case in the trial court.

The victim testified that two men approached him, one of whom he had seen a few minutes previously in a gasoline station and the other of whom had the gun. The former was later identified as Adams, and the latter was later identified as defendant. The victim testified that both men ordered him to get on the ground, and Adams asked him what he had been [']laughing at in the gas station.['] When the victim did not comply, both men began hitting him, and at some point the gun discharged, injuring the victim. More shots were fired at the victim as he ran away. Adams testified that both he and defendant punched the victim, that defendant had something that [']looked like a gun['] in his hand, and he heard gunshots before he and defendant returned to their car. Adams denied knowing why the driver stopped the car, why defendant got out of the car, or that defendant had a gun prior to getting out of the car; but he conceded that he got out with the intention [']to hit the guy.['] Other than Adams, defendant, and the victim, the only witnesses were the three other people in the car, of whom the driver did not testify and one passenger did not recall anything. The last passenger only recalled defendant and Adams getting out of the car and arguing with a man and hitting him, hearing a single gunshot, and seeing defendant put a gun under the seat . . .

The Court's analysis followed.

The trial court concluded at sentencing that defendant [']was clearly the leader['] because defendant [']was the one with the gun.['] The trial court initially opined that defendant had also [']sort of led the charge against['] the victim and [']may have been the one that had the beef, too, or thought he did.['] However, the prosecutor and defendant’s attorney subsequently disputed the extent to which defendant said anything to the victim, and it is unclear from the transcript of the sentencing proceedings whether the trial court maintained its belief that defendant had been the instigator beyond possessing a gun . . .

The Legislature did not define by statute what constitutes a [']leader['] for the purposes of OV 14. We have not found any binding case law defining [']leader['] in this context.  Consequently, we turn to the dictionary. See Ter Beek v City of Wyoming, 495 Mich 1, 20; ___ NW2d ___ (2014). According to Random House Webster’s College Dictionary (2001), a [']leader['] is defined in relevant part as [']a person or thing that leads['] or [']a guiding or directing head, as of an army or political group.['] To [']lead['] is defined in relevant part as, in general, in some way guiding, preceding, showing the way, directing, or conducting. The evidence unequivocally supports the trial court’s factual determination that defendant possessed a gun and the only other person involved in the criminal transaction did not. However, the evidence does not show that defendant acted first, gave any directions or orders to Adams, displayed any greater amount of initiative beyond employing a more dangerous instrumentality of harm, played a precipitating role in Adams’s participation in the criminal transaction, or was otherwise a primary causal or coordinating agent. 

We remain of the opinion that defendant’s exclusive possession of a gun during the criminal transaction is some evidence of leadership, however it does not meet the preponderance of the evidence standard found in Hardy. This fact alone does not support the finding by the trial court that defendant issued orders that Adams did not. The record simply fails to reflect any other evidence of leadership. Pursuant to the dictionary definition of leadership, we cannot conclude that merely posing a greater threat to a joint victim is sufficient to establish an individual as a [']leader[']” within the meaning of OV 14, at least in the absence of any evidence showing that the individual played some manner of guiding or initiating role in the transaction itself. We are therefore constrained to reverse the trial court’s scoring of OV 14, which should have been scored at zero points.