People v. Johnson, 712 N.W.2d 703 (Mich. 2006). · Go Syfert
People v. Johnson, 712 N.W.2d 703 (Mich. 2006). Cases Citing This Book View Copy Cite
“omething that 'aris out of,' or springs from or results from something else, has a connective relationship, a cause and effect relationship, of more than an incidental sort with the event out of which it has arisen.”
263 citation events (263 in the last 25 years) across 4 distinct courts.
Strongest positive: Allstate Ins. Co. v. Michael Stack (ca6, 2020-12-31)
Treatment trajectory · 2006 → 2026 · click a year to view as-of
2006 2016 2026
Top citers, strongest first. 32 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) Allstate Ins. Co. v. Michael Stack
6th Cir. · 2020 · quote attribution · 1 verbatim quote · confidence high
omething that 'aris out of,' or springs from or results from something else, has a connective relationship, a cause and effect relationship, of more than an incidental sort with the event out of which it has arisen.
discussed Cited as authority (quoted) People of Michigan v. Jamele Andre Atkins (2×) also: Cited "see, e.g."
Mich. Ct. App. · 2020 · quote attribution · 1 verbatim quote · confidence low
where complainant was fifteen years old and defendant was twenty, the court could determine that defendant exploited the victim's youth in committing the sexual assault.
discussed Cited as authority (rule) Alticor Global Holdings Inc v. American Intl Specialty Lines
6th Cir. · 2024 · confidence medium
In a different context, the Michigan Supreme Court has given that phrase a universal meaning: “Something that ‘arises out of,’ or springs from or results from something else, has a connective relationship, a cause and effect relationship, of more than an incidental sort with the event out of which it has arisen.” People v. Johnson, 712 N.W.2d 703, 706 (Mich. 2006) (brackets omitted); see also People v. Warren, 615 N.W.2d 691 , 697 n.23 (Mich. 2000) (favorably citing cases “interpreting the phrase ‘arising out of’ in insurance contracts [that] found the phrase to have a broad, com…
discussed Cited as authority (rule) Alticor Global Holdings Inc v. American Intl Specialty Lines
6th Cir. · 2024 · confidence medium
In a different context, the Michigan Supreme Court has given that phrase a universal meaning: “Something that ‘arises out of,’ or springs from or results from something else, has a connective relationship, a cause and effect relationship, of more than an incidental sort with the event out of which it has arisen.” People v. Johnson, 712 N.W.2d 703, 706 (Mich. 2006) (brackets omitted); see also People v. Warren, 615 N.W.2d 691 , 697 n.23 (Mich. 2000) (favorably citing cases “interpreting the phrase ‘arising out of’ in insurance contracts [that] found the phrase to have a broad, com…
cited Cited as authority (rule) People of Michigan v. Shamar Williams
Mich. Ct. App. · 2022 · confidence medium
People v Johnson, 474 Mich 96, 98, 103 ; 712 NW2d 703 (2006).
discussed Cited as authority (rule) Safety Specialty Ins. Co. v. Genesee Cnty. Bd. of Comm'rs
6th Cir. · 2022 · confidence medium
Exclusion 9B excludes claims “[a]rising out of . . . [t]ax collection, or the improper administration of taxes or loss that reflects any tax obligation.” The first issue is the meaning of the phrase “arising out of.” In the insurance-contract context, the Michigan Supreme Court has held that the phrase “requires a ‘causal connection’ that is ‘more than incidental.’” People v. Johnson, 712 N.W.2d 703, 706 (Mich. 2006) (quoting Pac.
discussed Cited as authority (rule) Safety Specialty Ins. Co. v. Genesee Cnty. Bd. of Comm'rs
6th Cir. · 2022 · confidence medium
Exclusion 9B excludes claims “[a]rising out of . . . [t]ax collection, or the improper administration of taxes or loss that reflects any tax obligation.” The first issue is the meaning of the phrase “arising out of.” In the insurance-contract context, the Michigan Supreme Court has held that the phrase “requires a ‘causal connection’ that is ‘more than incidental.’” People v. Johnson, 712 N.W.2d 703, 706 (Mich. 2006) (quoting Pac.
discussed Cited as authority (rule) Safety Specialty Insurance v. Genesee, County of
E.D. Mich. · 2022 · confidence medium
The first issue is the meaning of the phrase “arising out of.” Though the Policy does not define the phrase, the Michigan Supreme Court has previously held that the phrase “suggest[s] a causal connection between two events of a sort that is more than incidental.” People v. Johnson, 712 N.W.2d 703, 706 (Mich. 2006) (defining “arising out of” for purposes of sentencing enhancement for criminal sexual penetration).
discussed Cited as authority (rule) Martin v. Berghuis (2×) also: Cited "see"
E.D. Mich. · 2021 · confidence medium
The Michigan Supreme Court has “defined ‘arising out of’ to suggest a causal connection between two events of a sort that is more than incidental.” People v. Johnson, 474 Mich. 96, 101 ; 712 N.W.2d 703, 706 (2006).
discussed Cited as authority (rule) Great American Fidelity Insurance Company v. Stout Risius Ross, Inc.
E.D. Mich. · 2020 · confidence medium
The Michigan Supreme Court has opined that something that “arises out of, or springs from or results from something else, has a connective relationship, a cause and effect relationship, of more than an incidental sort with the event out of which it has arisen.” People v. Johnson, 712 N.W.2d 703, 706 (Mich. 2006) (internal quotations omitted).
discussed Cited as authority (rule) Great American Fidelity Insurance Company v. Stout Risius Ross, Inc.
E.D. Mich. · 2020 · confidence medium
The Michigan Supreme Court has opined that something that “arises out of, or springs from or results from something else, has a connective relationship, a cause and effect relationship, of more than an incidental sort with the event out of which it has arisen.” People v. Johnson, 712 N.W.2d 703, 706 (Mich. 2006) (internal quotations omitted).
cited Cited as authority (rule) People of Michigan v. Albert Haywood Jr
Mich. Ct. App. · 2020 · confidence medium
Johnson, 474 Mich at 97, 100 .
discussed Cited as authority (rule) Allstate Insurance Company, Incorporated v. Stack
E.D. Mich. · 2019 · confidence medium
The Michigan Supreme Court has interpreted the language “arising out of” to require that one thing “springs from or results from something else, has a connective relationship, a cause and effect relationship, of more than an incidental sort with the event out of which it had arisen.” People v. Johnson, 474 Mich. 96, 100-101 (Mich. 2006).
cited Cited as authority (rule) People of Michigan v. David Anthony Zoulek
Mich. · 2017 · confidence medium
People v Johnson, 474 Mich 96, 101 (2006).
cited Cited as authority (rule) People of Michigan v. David Anthony Zoulek
Mich. · 2017 · confidence medium
People v Johnson, 474 Mich 96, 101 (2006).
cited Cited as authority (rule) People of Michigan v. Akeen Rasheed Brown
Mich. Ct. App. · 2015 · confidence medium
People v Johnson, 474 Mich 96, 98, 103 ; 712 NW2d 703 (2006).
cited Cited "see" People of Michigan v. Steven Edward Sherburne
Mich. Ct. App. · 2021 · signal: see · confidence high
See People v Johnson, 474 Mich 96, 102 ; 712 NW2d 703 (2006). -8- why this case in particular warranted more than doubling the highest guidelines sentence available.
cited Cited "see" People of Michigan v. James Darshawn Powell
Mich. Ct. App. · 2021 · signal: see · confidence high
See id. at 101 (emphasis added).
cited Cited "see" People of Michigan v. Deandre Jamaal Barnes
Mich. Ct. App. · 2020 · signal: see · confidence high
See id.
cited Cited "see" People of Michigan v. Eli James Meekhof
Mich. Ct. App. · 2020 · signal: see · confidence high
See id. at 102 .
cited Cited "see" People of Michigan v. Joel Anthony Aguilar
Mich. · 2018 · signal: see · confidence high
See People v Johnson, 474 Mich 96 (2006).
cited Cited "see" People of Michigan v. Matthew Martin Hays
Mich. · 2017 · signal: see · confidence high
See People v Johnson, 474 Mich 96 (2006).
examined Cited "see" People of Michigan v. Tommy Lee Bennett (3×)
Mich. Ct. App. · 2016 · signal: see · confidence high
See id. at 101-102 .
discussed Cited "see" Bank of America Na v. Fidelity National Title Insurance Company (2×)
Mich. Ct. App. · 2016 · signal: see · confidence high
See People v Johnson, 474 Mich 96, 100-101 ; 712 NW2d 703 (2006); Scott v State Farm Mut Auto Ins Co, 483 Mich 1032 , 1033-1035 (2009) (KELLY, C.J., concurring); Schultz v Blue Cross Blue Shield, unpublished opinion per curiam of the Court of Appeals, issued March 18, 2010 (Docket Nos. 288128, 288224, 288225, and 288423), p 23, citing Shinabarger v Citizens Mut Ins Co, 90 Mich App 307, 313-314 ; 282 NW2d 301 (1979); Lawyers Title Ins Corp v New Freedom Mtg Corp, 285 Ga App 22, 30; 645 SE2d 536 (2007) (“[W]here a contract provides that a loss must ‘arise out of a specified act, it ‘does n…
cited Cited "see" People of Michigan v. Donald Ray Holloway
Mich. Ct. App. · 2016 · signal: see · confidence high
See People v Johnson, 474 Mich 96, 103 ; 712 NW2d 703 (2006) (finding admission pursuant to MRE 609 proper in analogous circumstances).
cited Cited "see" People of Michigan v. Matthew John Scotton
Mich. Ct. App. · 2015 · signal: see · confidence high
See id.
cited Cited "see" People of Michigan v. Douglas Paul Guffey
Mich. Ct. App. · 2015 · signal: see · confidence high
See id. at 101-102 .
cited Cited "see" People of Michigan v. Gregory James List
Mich. Ct. App. · 2014 · signal: see · confidence high
See Johnson, 474 Mich at 101-102 .
discussed Cited "see" People of Michigan v. Demetrious Edward Faulkner (2×)
Mich. Ct. App. · 2014 · signal: see · confidence high
See Johnson, 474 Mich at 101 .
cited Cited "see" Reserve at Heritage Village Ass'n v. Warren Financial Acquisition, LLC
Mich. Ct. App. · 2014 · signal: see · confidence high
See Johnson, 474 Mich at 100-101 .
discussed Cited "see, e.g." People of Michigan v. Vernon Dean Richardson
Mich. Ct. App. · 2016 · signal: see, e.g. · confidence low
See, e.g., People v Johnson, 474 Mich 96, 103 ; 712 NW2d 703 (2006). “[D]efense counsel is not required to make a meritless request or objection.” People v Chelmicki, 305 Mich App 58, 69 ; 850 NW2d 612 (2014).
discussed Cited "see, e.g." PNC Bank, National Ass'n v. Goyette Mechanical Co. (2×)
E.D. Mich. · 2015 · signal: see also · confidence low
Jan. 15, 2008) (stating that “[t]he phrase ‘arising out of has been defined in different, contexts, but generally requires a causal connection”); see also People v. Johnson, 474 Mich. 96, 101 , 712 N.W.2d 703 (2006) (observing that the phrase “ ‘arising out of... suggests] a causal connection between two events of a sort that is' more than incidental”).
Retrieving the full opinion text from the archive…
People
v.
Johnson
Docket 127525.
Michigan Supreme Court.
Mar 23, 2006.
712 N.W.2d 703
Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and Jennifer Kay Clark, Assistant Prosecuting Attorney, for the people., State Appellate Defender (by Peter John Van Hoek) for the defendant.
Taylor, Markman, Cavanagh, Kelly, Weaver, Young, Corrigan.
Cited by 92 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 64%
Citer courts: Michigan Court of Appeals (1)

Lead Opinion

PER CURIAM.

At issue is whether the trial court erred in scoring offense variable (OV) 11 and, if so, whether defendant is entitled to be resentenced. Defendant was convicted of two counts of third-degree criminal sexual conduct. The trial court scored OV 11 at 25 points on the basis that defendant penetrated the victim twice. The Court of Appeals affirmed. Because MCL 777.41(2)(a) only allows those penetrations “arising out of the sentencing offense” to be scored under OV 11, and because the two penetrations that formed the bases[*98] of the two sentencing offenses in this case occurred on different dates and there is no evidence that they arose out of each other, we conclude that the trial court erred in scoring OV 11. Because the trial court sentenced defendant to a minimum of 100 months under the misapprehension that the statutory sentencing guidelines call for a minimum range of 99 to 320 months when the guidelines actually call for a minimum range of 87 to 290 months, we remand this case to the trial court for resentencing.

I. FACTS AND PROCEDURAL HISTORY

Following a jury trial, defendant was convicted of two counts of third-degree criminal sexual conduct, MCL 750.520d, on the grounds that when he was 20 years old he engaged in sexual intercourse with a 15-year-old girl on two different dates in November 2001. At the sentencing hearing, defendant unsuccessfully challenged the scoring of points under offense variables 10,11, and 19. As scored, the statutory sentencing guidelines called for a minimum range of 99 to 320 months. The trial court sentenced defendant to two concurrent prison terms of 100 to 480 months as a fourth-offense habitual offender. Defendant filed an appeal as of right with the Court of Appeals, protesting the admission of evidence of three prior felony convictions at trial and the scoring of points under offense variables 10 and 11. The Court of Appeals affirmed. Unpublished opinion per curiam, issued October 28, 2004 (Docket No. 248480). Defendant applied for leave to appeal in this Court. After directing the parties to address whether OV 11 had been correctly scored by the trial court, we heard oral argument on whether to grant the application or take other peremptory action permitted by MCR 7.302(G)(1). 473 Mich 862 (2005).

[*99] II. STANDARD OP REVIEW

The issues in this case concern the proper interpretation and application of the statutory sentencing guidelines, MCL 777.11 et seq., both of which are legal questions that this Court reviews de novo. People v Morson, 471 Mich 248, 255; 685 NW2d 203 (2004). This case also concerns the admission of evidence, which is reviewed for an abuse of discretion. People v Small, 467 Mich 259, 261; 650 NW2d 328 (2002).

III. ANALYSIS

A. OV 11

The trial court scored OV 11 at 25 points. Defendant argues that OV 11 should have been scored at zero points. We agree with defendant. MCL 777.41 provides:

(1) Offense variable 11 is criminal sexual penetration. Score offense variable 11 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) Two or more criminal sexual penetrations occurred ............................................50 points
(b) One criminal sexual penetration occurred ...............................................25 points
(c) No criminal sexual penetration occurred ............................................0 points
(2) All of the following apply to scoring offense variable 11:
(a) Score all sexual penetrations of the victim by the offender arising out of the sentencing offense.
(b) Multiple sexual penetrations of the victim by the offender extending beyond the sentencing offense may be scored in offense variables 12 or 13.
[*100] (c) Do not score points for the 1 penetration that forms the basis of a first- or third-degree criminal sexual conduct offense. [Emphasis added.]

In this case, defendant sexually penetrated the victim on two different occasions. Defendant argues that because the two penetrations occurred on separate dates they did not “aris[e] out of” each other, and, thus, the trial court erred in scoring OV 11 at 25 points.

“Arise” is defined as “to result; spring or issue.” Random House Webster’s College Dictionary (1997). The Court of Appeals has explained that the language “arising out of the sentencing offense” means that the “sexual penetration of the victim must result or spring from the sentencing offense.” People v Mutchie, 251 Mich App 273, 276; 650 NW2d 733 (2002), aff'd on other grounds 468 Mich 50 (2003).[1] In Mutchie, supra at 277, the Court of Appeals held that “[bjecause all three sexual penetrations perpetrated by defendant against the victim occurred at the same place, under the same set of circumstances, and during the same course of conduct, regardless of which first-degree CSC conviction one deems the ‘sentencing offense’ for purposes of OV 11, the other two sexual penetrations unambiguously fall within the scope of ‘sexual penetrations of the victim by the offender arising out of the sentencing offense.’ ”

In interpreting an insurance contract containing the language “arising out of,” we held that such language requires a “ ‘causal connection’ ” that is “ ‘more than[*101] incidental. . . . ' " Pacific Employers Ins Co v Michigan Mut Ins Co, 452 Mich 218, 225; 549 NW2d 872 (1996), quoting Thornton v Allstate Ins Co, 425 Mich 643, 650; 391 NW2d 320 (1986). Similarly, in interpreting a workers’ compensation statute, MCL 418.301, containing the language “arising out of,” we held that this language requires a “ ‘ “causal connection Dean v Chrysler Corp, 434 Mich 655, 659-660; 455 NW2d 699 (1990), quoting Rucker v Michigan Smelting & Refining Co, 300 Mich 668, 671; 2 NW2d 808 (1942), quoting Appleford v Kimmel, 297 Mich 8, 12; 296 NW 861 (1941).

Obviously, the Legislature did not intend all penetrations to be scored nor did it intend for no penetrations to be scored. Instead, it intended for those penetrations “arising out of the sentencing offense” to be scored, and it is our role to ascertain which penetrations fairly can be said to have “aris[en] out of the sentencing offense.”

As already discussed, we have previously defined “arising out of” to suggest a causal connection between two events of a sort that is more than incidental. We continue to believe that this sets forth the most reasonable definition of “arising out of.” Something that “aris[es] out of,” or springs from or results from something else, has a connective relationship, a cause and effect relationship, of more than an incidental sort with the event out of which it has arisen. For present purposes, this requires that there be such a relationship between the penetrations at issue and the sentencing offenses.

In this case, the sentencing offenses are for third-degree criminal sexual conduct. Therefore, in order to count the penetrations under OV 11, there must be the requisite relationship between the penetrations and the instances of third-degree criminal sexual conduct. The[*102] victim testified that she had sexual intercourse with defendant on two different dates in November 2001. There is no evidence that the penetrations resulted or sprang from each other or that there is more than an incidental connection between the two penetrations. That is, there is no evidence that the penetrations arose out of each other. More specifically, there is no evidence that the first sexual penetration arose out of the second penetration or that the second penetration arose out of the first penetration.[2] Because the two sexual penetrations did not “aris[e] out of” each other, the trial court erred in scoring OV 11 at 25 points.[3]

[*103] If OV 11 is scored at 25 points, the statutory sentencing guidelines call for a minimum sentence range of 99 to 320 months. However, if OV 11 is scored at zero points, as it should have been in this case, the guidelines call for a minimum sentence range of 87 to 290 months. Because defendant’s sentences are predicated upon an inaccurate calculation of the guidelines range, defendant is entitled to be resentenced. People v Francisco, 474 Mich 82; 711 NW2d 44 (2006).

B. MRE 609

Defendant had three prior felony convictions for breaking and entering in 1999, receiving and concealing stolen property in 2000, and larceny from the person in 2000. We agree with the Court of Appeals that the trial court did not abuse its discretion in admitting evidence of these convictions under MRE 609. The crimes contained elements of theft, were punishable by imprisonment in excess of one year, were committed within two years of the instant offenses, were probative of defendant’s credibility, and were not similar to the instant offenses.

c. ov 10

We also agree that the trial court did not err in scoring OV 10 at ten points. MCL 777.40(l)(b) requires OV 10 to be scored at ten points where “[t]he 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.” As the Court of Appeals explained, “[w]here complainant was fifteen years old and defendant was twenty, the court could determine that defendant exploited the victim’s youth in committing the sexual assault.” Slip op at 2.

[*104] IV CONCLUSION

Because we conclude that the trial court erred in scoring OV 11 and that this error affected the statutory-sentencing guidelines range, we remand this case to the trial court for resentencing under the correct guidelines range.

TAYLOR, C.J., and MARKMAN, J., concurred. CAVANAGH and KELLY, JJ., concurred in the result only.
1

In Mutchie, supra at 51-52, we quoted the Court of Appeals opinion in that matter and held that “[t]he analysis of OV 11 offered by the Court of Appeals was dictum” because even if the trial court had erred in scoring OV 11, resentencing would not be warranted “ ‘given the trial court’s remarks that it would have imposed the same sentences regardless of the scoring of OV 11.’ ”

2

In this case, defendant was convicted of two separate counts of third-degree criminal sexual conduct. Third-degree criminal sexual conduct is an offense based on sexual penetration. MCL 750.520d. The penetration that formed the basis of defendant’s first offense “aris[es] out of the [first] sentencing offense.” The penetration that formed the basis of defendant’s second offense “aris[es] out of the [second] sentencing offense.” However, the penetration that formed the basis of the first offense cannot be used for scoring the first offense, and the penetration that formed the basis of the second offense cannot be used for scoring the second offense. This is because MCL 777.41(2)(c) prevents the court from scoring points “for the 1 penetration that forms the basis of a first- or third-degree criminal sexual conduct offense.” While the precise meaning of the language in MCL 777.41(2)(c) is not at issue in this case, it is clear that each criminal sexual penetration that forms the basis of its own sentencing offense cannot be scored for purposes of that particular sentencing offense.

3

Although criminal sexual penetrations extending beyond the sentencing offense cannot be scored under OV 11, they may be scored under OV 12 (contemporaneous felonious criminal acts that occurred within 24 hours of the sentencing offense and that have not and will not result in separate convictions, MCL 777.42) or OV 13 (continuing pattern of criminal behavior, MCL 777.43). In this case, OV 12 cannot be scored because there is no evidence that the sexual penetrations occurred within 24 hours of each other and both penetrations resulted in separate convictions. Moreover, defendant has already been assessed 25 points under OV 13— the highest number of points assessable unless first-degree criminal sexual conduct is the sentencing offense— on the basis of an unarmed robbery conviction in 2000, a larceny from the person conviction in 1999, and the sentencing offense.

Concurrence in Part

CORRIGAN, J.

{concurring in part and dissenting in part). I concur with the lead opinion’s analysis and conclusions regarding the scoring of the offense variables and the admissibility of the evidence of defendant’s prior felony convictions. However, for the reasons stated in my dissent in People v Francisco, 474 Mich 82; 711 NW2d 44 (2006), I dissent from the conclusion that a remand for resentencing is required in this case.

Weaver and Young, JJ., concurred with Corrigan, J.