In People v. Needham, a defendant who pleaded no contest to possession of child sexually abusive material challenged his prison sentence of one to four years, objecting to offense variable (OV) 10 being scored (exploitation of a vulnerable victim) since he had no direct contact with the children featured in the pornography.
Generally, the Michigan statutory sentencing guidelines only apply in felony cases with indeterminate penalties—where the sentencing court has discretion in meting out the defendant’s sentence. Therefore, the guidelines are not applicable for crimes that have mandatory penalties as outlined by statute. Prior record variables (PRVs) and offense variables (OVs) are scored and tabulated in accordance to various factors. The PRVs are based on a defendant’s criminal history. The OVs are based on aggravating factors. Substantive offenses involved determine which sentencing grid is used. Additionally, habitual offender status affects the scoring as well. After tabulation, a recommended minimum sentence emerges as the maximum sentence is set by statute.
For OV 10, a scoring of 10 points is permitted where the offender exploited a vulnerable victim, including the very young or old. (MCL 777.40(1)(c)) “Vulnerability” is further defined as obvious susceptibility to persuasion, injury, physical restraint, or temptation.
The Court of Appeals considered defendant’s argument on many fronts. First, the court asserted there clearly was a victim in the case. The victim of child pornography is the child portrayed in the imagery, including possession of such materials. The court stated the defendant did exploit young, vulnerable children—and that nothing in the plain language of the statute suggests a defendant must have physical or direct contact with an individual to engage in manipulation or exploitation. The goal of the statute is to shield children from sexual exploitation.
These images represent an ongoing invasion of privacy of these children
Furthermore, the court mined a Fifth Circuit case, U.S. v. Norris, for examples of how individuals in possession of child sexually abusive material victimize depicted children. First, the court stated that the dissemination of materials perpetuates the abuse committed by pornography producers and directly fuels continued abuse. Moreover, the existence of the sexually explicit materials further harms these children emotionally in the future. Second, these images represent an ongoing invasion of privacy of these children. Finally, an individual consuming pornography creates a financial incentive for the created enterprise to endure indefinitely.
The court affirmed, stating just as sex offender registration is required for the offense, so is a scoring of OV 10. The court concluded that evidence demonstrating possession of child sexually abusive material mandates a score of 10 points for OV 10 for the exploitation of young victims.
Regardless if an individual agrees or disagrees with the decision, future implications exist with scoring clarifications. Potentially, a defendant may be on the border regarding a minimum sentence. A few extra OV points could potentially bump a defendant into a higher scoring bracket. This would adversely change the sentence range. No defendant wants a longer minimum sentence.
If you need legal representation regarding child pornography charges, we can help. The Kronzek Firm PLC, has been successfully representing defendants for nearly twenty years. Our attorneys have obtained outstanding case results for clients.