Order                                                                      Michigan Supreme Court
                                                                                 Lansing, Michigan

  April 15, 2011                                                                   Robert P. Young, Jr.,
                                                                                             Chief Justice

  140744                                                                           Michael F. Cavanagh
                                                                                         Marilyn Kelly
                                                                                   Stephen J. Markman
                                                                                   Diane M. Hathaway
                                                                                       Mary Beth Kelly
  PEOPLE OF THE STATE OF MICHIGAN,                                                     Brian K. Zahra,
            Plaintiff-Appellant,                                                                  Justices

  v                                                      SC: 140744
                                                         COA: 288466
                                                         Jackson CC: 08-004046-FH
  TERRY LEE BRANDT,
            Defendant-Appellee.

  _________________________________________/

         On January 20, 2011, the Court heard oral argument on the application for leave to
  appeal the January 28, 2010 judgment of the Court of Appeals. On order of the Court,
  the application is again considered, and it is DENIED, because we are not persuaded that
  the question presented should be reviewed by this Court.

           MARILYN KELLY, J. (concurring).

         I concur in this Court’s order denying the prosecutor’s application for leave to
  appeal. I believe that the Court of Appeals correctly determined that offense variable ten
  (OV 10)1 should not be scored under the circumstances of this case. I write separately to
  address the broader jurisprudentially significant question of whether an institution ever
  may be a “vulnerable victim” under OV 10.

          Offense variable 10 concerns exploitation of a vulnerable victim. In People v
  Cannon,2 this Court held that, for points to be assessed under OV 10, the defendant must
  have exploited the victim’s vulnerability.          “Vulnerability” is defined in MCL
  777.40(3)(c) as “the readily apparent susceptibility of a victim to injury, physical
  restraint, persuasion, or temptation.” The statute instructs us as follows:



  1
      MCL 777.40.
  2
      People v Cannon, 481 Mich 152, 158 (2008).
                                                                                                                 2


         Factors to be considered in deciding whether a victim was vulnerable
         include (1) the victim’s physical disability, (2) the victim’s mental
         disability, (3) the victim’s youth or agedness, (4) the existence of a
         domestic relationship, (5) whether the offender abused his or her authority
         status, (6) whether the offender exploited a victim by his or her difference
         in size or strength or both, (7) whether the victim was intoxicated or under
         the influence of drugs, or (8) whether the victim was asleep or
         unconscious.[3]

        Abuse of authority is the only one of these factors that could feasibly apply to an
institutional victim. However, I conclude that the Legislature never intended even it to
apply to an institution. Under section (3)(d) of the act, “[a]buse of authority status”
means “a victim was exploited out of fear or deference to an authority figure including
but not limited to a parent, physician, or teacher.” Given the words used, it is apparent to
me that this definition contemplates a living human victim only. An institutional victim
cannot conform to this definition. Because it cannot be afraid or show deference, it
cannot be “exploited out of fear or deference.”

        In short, the language about a vulnerable victim in OV 10 can never properly be
applied to an institutional victim. Therefore, I believe the Court should clarify that an
institution may not be considered a vulnerable victim for purposes of assessing points
under OV 10.




3
    Id. at 158-9, citing MCL 777.40(1)(b) and (c).



                           I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
                     foregoing is a true and complete copy of the order entered at the direction of the Court.
                           April 15, 2011                      _________________________________________
          y0412                                                                Clerk
