MSC 151048 PEOPLE OF MI V ANTONIO TONY GLOSTER Opinion on Application - Other 05/24/2016

PEOPLE v GLOSTER
Docket No. 151048. Argued on application for leave to appeal March 9, 2016. Decided
May 24, 2016.
Antonio Tony Gloster was convicted of aiding and abetting armed robbery following a
jury trial in the Wayne Circuit Court. Defendant had driven four men to a market in Hamtramck,
Michigan. While defendant stayed in the car, two of the men assaulted a woman and attempted
to steal her necklace. Defendant then picked the men up and drove away. When scoring the
sentencing guidelines, the court, Lawrence S. Talon, J., assessed 15 points for Offense Variable
(OV) 10 (exploitation of a vulnerable victim), MCL 777.40, concluding that predatory conduct
had been involved. Defendant appealed, arguing in part that it was improper to base his OV 10
score on his co-offenders’ conduct and that points should be assessed under OV 10 only for the
individual defendant’s conduct. The Court of Appeals, M URRAY , P.J., and S AAD and HOEKSTRA,
JJ., affirmed in an unpublished opinion per curiam, issued December 30, 2014 (Docket No.
316553), declining to address whether a sentencing court may consider the conduct of a co-
offender when scoring OV 10 and concluding that the trial court’s score was supported by
defendant’s own conduct, specifically, his role in selecting a vulnerable victim. Defendant
appealed, and the Supreme Court ordered and heard oral argument on whether to grant the
application or take other action. 498 Mich 910 (2015).
In a unanimous opinion by Justice ZAHRA , the Supreme Court held:
A sentencing court may not assess points for a defendant solely on the basis of his or her
co-offenders’ conduct unless the OV at issue specifically indicates to the contrary.
MCL 777.40(1)(a) requires the assessment of 15 points for OV 10 when predatory conduct was
involved. Under MCL 777.40(3)(a), predatory conduct is preoffense conduct directed at a
victim, or a law enforcement officer posing as a potential victim, for the primary purpose of
victimization. The Legislature explicitly provided in several OVs that all offenders in a
multiple-offender situation, including the defendant, should receive the same score, even if the
conduct that serves as the basis for scoring those OVs was solely that of a co-offender.
MCL 777.40, however, does not contain language directing the court to assess a defendant points
for OV 10 on the basis of conduct by that defendant’s co-offenders in multiple-offender
situations. Accordingly, a sentencing court may not assess a defendant 15 points for predatory
conduct under OV 10 solely on the basis of the predatory conduct of the defendant’s co-
offenders. The trial court erred by doing so in this case, supporting its scoring of OV 10 by
Michigan Supreme Court
Lansing, Michigan
Syllabus Chief Justice:
Robert P. Young, Jr.
Justices:
Stephen J. Markman
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
Joan L. Larsen
This syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
Reporter of Decisions:
Corbin R. Davis

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explaining that two of the people defendant drove to Hamtramck went to a corner in the market
to watch for an appropriate victim. The court therefore considered only the conduct of
defendant’s co-offenders in watching for an appropriate victim when it assessed defendant 15
points for predatory conduct. The Court of Appeals likewise erred by concluding that the trial
court’s scoring of OV 10 was supported by defendant’s own conduct. Because the trial court did
not itself find that defendant’s own conduct was predatory in nature, the Court of Appeals failed
to review the trial court’s findings for clear error.
Court of Appeals’ judgment reversed in part and case remanded to the trial court for
further proceedings not inconsistent with the holding.
©2016 State of Michigan

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FILED May 24, 2016
S T A T E O F M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 151048
ANTONIO TONY GLOSTER,
Defendant-Appellant.
BEFORE THE ENTIRE BENCH
Z AHRA , J.
In this case, we consider whether a sentencing court may assess a defendant 15
points for “predatory conduct” under Offense Variable (OV) 10 (exploitation of a
vulnerable victim), MCL 777.40, solely on the basis of the predatory conduct of a
defendant’s co-offenders. We conclude that it may not. In direct contrast to other OVs,
MCL 777.40 contains no language directing a court to assess a defendant the same
number of points as his co-offenders in multiple-offender situations. We decline to
Michigan Supreme Court
Lansing, Michigan
OPINION Chief Justice:
Robert P. Young, Jr.
Justices:
Stephen J. Markman
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
Joan L. Larsen

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import such language into OV 10, as it is a well-established rule of statutory construction
that this Court will not read words into a statute that the Legislature has excluded.1
The trial court assessed 15 points for OV 10 solely on the basis of the predatory
conduct of the defendant’s co-offenders. Defendant appealed this decision, but the Court
of Appeals declined to address “whether a trial court may consider the conduct of a co-
offender when scoring OV 10 . . . .”2 Instead, the Court of Appeals concluded that the
trial court’s scoring of OV 10 was supported by defendant’s own conduct.3 However,
because the trial court did not itself find that defendant’s own conduct was predatory in
nature, we conclude that the Court of Appeals failed to review the trial court’s findings
for clear error as required by People v Hardy.4 Accordingly, we reverse in part the
judgment of the Court of Appeals and remand this case to the trial court for further
proceedings not inconsistent with our holding that a sentencing court may not assess a
defendant 15 points for “predatory conduct” under OV 10 solely on the basis of the
predatory conduct of the defendant’s co-offenders. In all other respects, leave to appeal
is denied.
1 People v McIntire, 461 Mich 147, 152-153; 599 NW2d 102 (1999).
2 People v Gloster, unpublished opinion per curiam of the Court of Appeals, issued
December 30, 2014 (Docket No. 316553), p 4 n 2.
3 Id.
4 People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013).

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I. FACTS AND PROCEEDINGS
This case arises from a robbery that occurred in Hamtramck on October 20, 2012.
On that date, defendant drove four men, including Marvin Graham and Calvin Gloster,
defendant’s brother, to Hamtramck. Graham attacked the victim outside the Polish
Market. According to surveillance footage, Graham and Calvin Gloster stood outside the
market and watched a man walking alone, two individuals, and a group of children pass
by before Graham attacked the victim, a woman who was walking alone. In an attempt to
steal the woman’s necklace, Graham hit her in the back of her head and knocked her to
the ground. When onlookers intervened, Graham and Calvin Gloster fled, but not before
Calvin Gloster shot one of the intervening onlookers with a pistol.
During the robbery, defendant was parked near the Polish Market. After Graham
and Calvin Gloster fled, defendant picked the men up, which required him to circle
around the block to find Graham, and drove them out of the area. After he was arrested
by police and interrogated about his participation in the robbery, defendant admitted that
he had acted as the getaway driver in the robbery. Specifically, he admitted driving the
men to the area and that they were “trying to get some money, simple as that.” He also
admitted driving the men out of the area following their failed attempt to obtain the
victim’s necklace.
The prosecution charged defendant as an aider and abettor to armed robbery under
MCL 750.529 and unarmed robbery under MCL 750.530. After deliberation, the jury
convicted defendant of aiding and abetting armed robbery.
The trial court sentenced defendant to 85 months to 20 years in prison. At
sentencing, the parties disagreed about whether OV 10 should be scored at 15 points for

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predatory conduct. The court agreed with the prosecution that it should, ruling that the
score was appropriate because, while defendant waited in the car, the other two
perpetrators waited for an appropriate victim.
Defendant appealed the trial court’s decision in the Court of Appeals, arguing in
part that it was erroneous to base defendant’s OV 10 score on his co-offenders’ conduct.
Instead, defendant claimed, OV 10 should be scored only for the individual defendant’s
conduct. He also argued that his co-offenders’ conduct was not predatory in nature under
existing caselaw. The Court of Appeals affirmed the trial court’s scoring in an
unpublished opinion per curiam, concluding that “[d]efendant aided and abetted the
commission of an offense that involved the exact sort of ‘predatory conduct’ OV 10 is
designed to punish.”5 In a footnote, the panel dismissed defendant’s argument that his
OV 10 score was based solely on his co-offenders’ conduct. To the contrary, the panel
concluded that “the record demonstrates that the trial court scored defendant for his
conduct—specifically, his role in selecting a vulnerable victim.”6
Defendant sought leave to appeal in this Court. We directed the Clerk of the Court
to schedule oral argument on whether to grant the application or take other action.7 We
specifically requested that the parties address
whether the defendant was properly assigned 15 points for offense variable
(OV) 10, MCL 777.40, for predatory conduct, and in particular, whether the
scoring of OV 10 was proper based on the defendant’s own conduct, or
5 Gloster, unpub op at 3.
6 Id. at 4 n 2.
7 MCR 7.305(H)(1).

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alternatively, based on the conduct of the defendant’s accomplices. See
MCL 767.39; cf. People v Hunt, 290 Mich App 317, 325-326 [810 NW2d
588] (2010) (conviction not based on aid and abetting), cited in People v
Hardy, 494 Mich 430, 442 n 32 [835 NW2d 340] (2013). [8]
II. STANDARD OF REVIEW
A trial court’s factual determinations are reviewed for clear error and must be
supported by a preponderance of the evidence.9 “Whether the facts, as found, are
adequate to satisfy the scoring conditions prescribed by statute, i.e., the application of the
facts to the law, is a question of statutory interpretation, which an appellate court reviews
de novo.”10
III. ANALYSIS
OV 10, governed by MCL 777.40, provides in relevant part:
(1) Offense variable 10 is exploitation of a vulnerable victim. Score
offense variable 10 by determining which of the following apply and by
assigning the number of points attributable to the one that has the highest
number of points:
(a) Predatory conduct was involved .................................... 15 points
(b) The offender exploited a victim’s physical disability, mental
disability, youth or agedness, or a domestic relationship, or the offender
abused his or her authority status ................................................... 10 points
(c) The offender exploited a victim by his or her difference in size or
strength, or both, or exploited a victim who was intoxicated, under the
influence of drugs, asleep, or unconscious ....................................... 5 points
8 People v Gloster, 498 Mich 910 (2015).
9 Hardy, 494 Mich at 438.
10 Id.

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(d) The offender did not exploit a victim’s vulnerability ...... 0 points
(2) The mere existence of 1 or more factors described in
subsection (1) does not automatically equate with victim vulnerability.
As used in this section, “ ‘predatory conduct’ means preoffense conduct directed at a
victim, or a law enforcement officer posing as a potential victim, for the primary purpose
of victimization.”11
MCL 777.40 contains no language directing a court to assess a defendant points
for OV 10 on the basis of conduct by a defendant’s co-offenders in multiple-offender
situations. This is in direct contrast to OVs 1, 2, and 3, all of which specifically direct a
court to assign a defendant the same number of points that all offenders are assessed in
multiple-offender cases. OV 1 (aggravated use of a weapon) provides that “[i]n multiple
offender cases, if 1 offender is assessed points for the presence or use of a weapon, all
offenders shall be assessed the same number of points.”12 OV 2 (lethal potential of
weapon possessed or used)13 and OV 3 (physical injury to victim)14 similarly mandate
that “all offenders” in a multiple-offender case “shall be assessed the same number of
points.” Since this language clearly indicates that all offenders must have the same
number of points assessed, it follows that a trial court must assess a defendant points for
OVs 1, 2, and 3 when his or her co-offender had points for those OVs assessed, even if
11 MCL 777.40(3)(a), as amended by 2014 PA 350. At the time this case arose,
MCL 777.40(3)(a) did not include the reference to “a law enforcement officer posing as a
potential victim.”
12 MCL 777.31(2)(b).
13 MCL 777.32(2).
14 MCL 777.33(2)(a).

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the conduct that serves as the basis for scoring those OVs was solely that of the co-
offender.
“Courts cannot assume that the Legislature inadvertently omitted from one statute
the language that it placed in another statute, and then, on the basis of that assumption,
apply what is not there.”15 Because the Legislature has explicitly provided that all
offenders in a multiple-offender situation should receive the same score for OVs 1, 2, and
3, but excluded that language from other OVs, we conclude that a defendant shall not
have points assessed solely on the basis of his or her co-offenders’ conduct unless the OV
at issue specifically indicates to the contrary.16 To conclude otherwise would require this
15 Farrington v Total Petroleum, Inc, 442 Mich 201, 210; 501 NW2d 76 (1993).
16 The Court of Appeals reached a similar conclusion in People v Hunt, 290 Mich App
317; 810 NW2d 588 (2010). That case pertained to OV 7, which at that time directed a
court to assess a defendant 50 points when “[a] victim was treated with sadism, torture, or
excessive brutality or conduct designed to substantially increase the fear and anxiety a
victim suffered during the offense[.]” MCL 777.37(1)(a), as amended by 2002 PA 137.
In Hunt, the trial court assessed defendant 50 points for OV 7, even though the record
indicated that his co-defendant alone engaged in the behavior that led to the scoring for
sadism, torture, or excessive brutality. The Court of Appeals reversed the trial court’s
scoring decision, commenting:
[W]hile defendant was present and armed during the commission of the
crimes here, he did not himself commit, take part in, or encourage others to
commit acts constituting “sadism, torture, or excessive brutality” under OV
7. Moreover, unlike OV 1, OV 2, and OV 3, OV 7 does not state that “[i]n
multiple offender cases, if 1 offender is assessed points for [the applicable
behavior or result], all offenders shall be assessed the same number of
points.” For OV 7, only the defendant’s actual participation should be
scored. [Hunt, 290 Mich App at 325-326 (citations omitted) (second and
third alterations in original).]

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Court to read the multiple-offender language into the OV at issue, in this case OV 10, in
violation of our principles of statutory interpretation.17
We are not persuaded by the prosecution’s claim that a defendant may have points
assessed under OV 10 solely on the basis of the conduct of his or her co-offenders
because the language simply requires that “[p]redatory conduct was involved” without
specifying that the predatory conduct must have been the defendant’s.18 We note that
OVs 1 and 3 are similarly worded in the passive voice, yet the Legislature found it
necessary to include a separate subsection that explicitly requires a court to assess the
defendant the same number of points as his or her co-offenders.19 If the presence of
passive language in an OV required a sentencing court to assess a defendant points solely
on the basis of the conduct of the defendant’s co-offenders, then those separate
subsections in OVs 1 and 3 would be rendered surplusage, in violation of this Court’s
principles of statutory interpretation.20
Moreover, the Legislature has demonstrated in other OVs that its failure to specify
the defendant being sentenced as the actor does not itself mean that a sentencing court
should assess the defendant points solely on the basis of his or her co-offenders’ conduct.
17 See Byker v Mannes, 465 Mich 637, 646-647; 641 NW2d 210 (2002) (“It is a well-
established rule of statutory construction that this Court will not read words into a
statute.”).
18 MCL 777.40(1)(a).
19 See MCL 777.31(2)(b); MCL 777.33(2)(a).
20 State Farm Fire & Cas Co v Old Republic Ins Co, 466 Mich 142, 146; 644 NW2d 715
(2002) (“Courts must give effect to every word, phrase, and clause in a statute and avoid
an interpretation that would render any part of the statute surplusage or nugatory.”).

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For example, OV 16 (property obtained, damaged, lost, or destroyed), MCL 777.46(1)(b)
through (e), lists the points to be assessed if “[t]he property had a value” ranging from
$200 to more than $20,000 or if “[n]o property was obtained, damaged, lost, or destroyed
or the property had a value of less than $200.00.” Subsection (2)(a) then states that “[i]n
multiple offender or victim cases, the appropriate points may be determined by adding
together the aggregate value of the property involved . . . .”21 If the Legislature’s failure
to specify that the assessment of points under OV 16 must be based on the defendant’s
conduct meant that the defendant must have points assessed for property damage, loss, or
destruction attributed solely to his or her co-offenders, then there would have been no
need for Subsection (2)(a) to instruct courts to aggregate the value of the property
involved in multiple-offender cases. OV 11 (criminal sexual penetration), MCL
777.41(1), requires the assessment of points if at least one “sexual penetration occurred”
without specifying that it must be the defendant who engaged in that sexual penetration.
Subsections (2)(a) and (b) then indicate that the Legislature was nonetheless referring to
the defendant’s conduct, not the conduct of the defendant and his or her co-offenders.
That is, Subsection (2)(a) directs the court to “[s]core all sexual penetrations of the victim
by the offender [defendant] arising out of the sentencing offense,”22 and Subsection (2)(b)
specifies that “[m]ultiple sexual penetrations of the victim by the offender [defendant]
extending beyond the sentencing offense may be scored in offense variables 12 or 13
21 MCL 777.46(2)(a).
22 MCL 777.41(2)(a).

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[MCL 777.42 and MCL 777.43].”23 Thus, it appears clear that even when an OV is
phrased in a manner that does not explicitly refer to the defendant as the actor, the court
may not assess that defendant points solely on the basis of his or her co-offender’s
conduct unless the OV at issue explicitly directs the court to do so.
Applying this analysis to the instant case, we conclude that the trial court erred by
assessing defendant 15 points for OV 10 because the record indicates that the court based
its assessment of points entirely on the conduct of defendant’s co-offenders. That is, the
trial court supported its score by explaining that two of the people defendant drove to
Hamtramck “went out to the corner to watch for an appropriate victim . . . .” The trial
court thus considered only the conduct of defendant’s co-offenders in watching for an
appropriate victim when it assessed defendant 15 points for predatory conduct. For the
reasons described above, this was in error.24 The Court of Appeals likewise erred by
concluding that the trial court’s scoring of OV 10 was supported by defendant’s own
conduct. Because the trial court did not itself find that defendant’s own conduct was
predatory in nature, the Court of Appeals failed to review the trial court’s findings for
clear error as required by People v Hardy.25
23 MCL 777.41(2)(b).
24 In the alternative, the prosecution argues that defendant should have 15 points assessed
under OV 10 for aiding and abetting his co-offenders’ predatory conduct. We decline to
address this argument, given that the trial court did not score OV 10 under an aiding-and-
abetting theory. Instead, we leave it to the trial court on remand to determine whether it
is appropriate to consider this alternative argument.
25 Hardy, 494 Mich at 438.

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IV. CONCLUSION
We reverse in part the judgment of the Court of Appeals and remand this case to
the trial court for further proceedings not inconsistent with our holding that a sentencing
court may not assess a defendant 15 points for predatory conduct under OV 10 solely on
the basis of the predatory conduct of the defendant’s co-offenders. In all other respects,
leave to appeal is denied because we are not persuaded that this Court should review the
remaining question presented.
Brian K. Zahra
Robert P. Young, Jr.
Stephen J. Markman
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
Joan L. Larsen

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