Michigan Court Of Appeals Holds OV 4 Unsupported By Record Evidence

On May 5, 2015, the Michigan Court of Appeals held in a criminal case that the trial court erred in assessing ten points under offense variable (OV) 4 because the only evidence in the record of serious psychological injury to the victim was a brief statement in defendant's pre-sentence interview report (PSIR) that the victim was "visibly shaken" after defendant robbed her. Because the scoring of any OV requires that there is a preponderance of evidence in the record to support that scoring, the Court of Appeals reasoned that a single statement in defendant's PSIR was simply insufficient to support the scoring of ten points under OV 4.

In People v McChester, Docket No. 318145, the Michigan Court of Appeals addressed the issue of whether the trial court erred in scoring ten points under OV 4. Defendant argued that the record evidence did not support a finding that it was more likely than not that the victim suffered a serious psychological injury.

The Court first recited the facts of the case.

Defendant’s conviction arose out of a robbery of a Speedway gas station. Defendant entered the store, approached the cashier, asked for cigarettes, and then ordered the cashier to give him everything in the cash drawer. When defendant made the demand, his right hand was in one of his pockets, and he made a furtive gesture suggesting to the cashier that he had a gun in the pocket. The cashier testified at the preliminary examination that defendant threatened her by stating, “I really don’t wanna pull this trigger on you so empty the register and give me everything.” The cashier complied, and defendant proceeded to flee with stolen cigarettes and money from the till. According to the presentence investigation report (PSIR), the police observed that the cashier was “visibly shaken” when they arrived at the scene. Aside from this observation by police, our review of the entire record, including the preliminary examination, sentencing, and plea transcripts, as well as the PSIR, fails to disclose any other information or evidence regarding or touching on the cashier’s psychological state as impacted by the robbery.

With respect to OV 4, it concerns psychological injury to a victim and directs a sentencing court to assess 10 points if “[s]erious psychological injury requiring professional treatment occurred to a victim.” MCL 777.34(1)(a). Subsection (2) of the statute requires a court to “[s]core 10 points if the serious psychological injury may require professional treatment,” with the admonition that “[i]n making this determination, the fact that treatment has not been sought is not conclusive.” The only other option under OV 4 is to assess zero points when “[n]o serious psychological injury requiring professional treatment occurred to a victim.” MCL 777.34(1)(b). The trial court here assessed 10 points for OV 4. If the correct score for OV 4 is zero instead of 10 points, it would result in altering the applicable guidelines range from “50 to 125 months” to “43 to 107 months,” thereby requiring reversal. MCL 777.64; MCL 777.21(3)(a); People v Francisco, 474 Mich 82, 89-91; 711 NW2d 44 (2006).

On appeal, defendant argues that the trial court committed plain error by assessing 10 points for OV 4 instead of zero points and that defense counsel provided ineffective assistance in failing to object to the scoring. At the sentencing hearing, the trial court initially inquired whether there were any “[a]dditions or corrections” to be made to the PSIR, which included a scoring of the sentencing guidelines variables, and the prosecutor and defense counsel both responded, “No, your Honor.” There was no other discussion with respect to the scoring of the variables, and under this Court’s decision in People v Hershey, 303 Mich App 330, 351-353; 844 NW2d 127 (2013), such circumstances would merely constitute forfeiture and not waiver of alleged scoring errors. Moreover, while defendant here did not challenge the scoring of OV 4 at sentencing or in a motion for resentencing, he did raise the argument in two motions to remand. This included a motion that was filed shortly after appellate counsel was appointed by the trial court consistent with part of our Supreme Court’s remand order that had directed an initial inquiry by the trial court regarding defendant’s indigency status and that mandated appointment of appellate counsel if defendant was indeed indigent. McChester, 497 Mich at 865. Accordingly, defendant has adequately preserved the issue concerning OV 4. MCL 769.34(10) (“A party shall not raise on appeal an issue challenging the scoring of the sentencing guidelines or challenging the accuracy of information relied upon in determining a sentence that is within the appropriate guidelines sentence range unless the party has raised the issue at sentencing, in a proper motion for resentencing, or in a proper motion to remand filed in the court of appeals.”).

The Court then addressed defendant's argument that the trial court erred in scoring ten points under OV 4.

While the victim in this case may very well have suffered a serious psychological injury requiring professional treatment or that may have required professional treatment, considering that defendant convincingly acted as if he had a gun and threatened to shoot her, the only information or evidence in the record regarding the victim’s psychological state was the PSIR’s reference to her being “visibly shaken.” The victim’s impact statement in the PSIR revealed that “[a]ll attempts to contact the victim ha[d] been unsuccessful.” The victim did not present an oral or written statement at sentencing, nor did she testify in any meaningful way at the preliminary examination in regard to her psychological state, which is to be expected given that the focus of the prelim was on the elements of the crime and defendant’s involvement. There simply was not a preponderance of evidence establishing that the victim suffered a serious psychological injury.

Contrary to the prosecution’s argument, this Court’s opinion in People v Apgar, 264 Mich App 321; 690 NW2d 312 (2004), does not demand a different conclusion, where in Apgar the 13-year-old victim specifically testified to being fearful during a particularly brutal and horrific rape. Here, we do not have any indication from the victim herself regarding her psychological state, and the only information on the issue comes from a cursory, vague, and preliminary observation by police who arrived at the scene. Again, we would not be surprised if the victim had indeed suffered a serious psychological injury; however, the record is essentially barren on the issue and speculation cannot form the basis to affirm a 10-point score for OV 4. Other published opinions by this Court affirming 10-point scores for OV 4 all referenced abundant supporting evidence that simply does not exist in the case at bar. See People v Armstrong, 305 Mich App 230, 247; 851 NW2d 856 (2014) (victim expressed feelings of confusion, emotional turmoil, guilt, an inability to trust others, and anger, and she suffered from emotional difficulties); People v Earl, 297 Mich App 104, 109-110; 822 NW2d 271 (2012) (victim impact statement and letter from the victim reflected that the victim suffered from sleeplessness for weeks, relived the robbery every time she closed her eyes, and constantly feared being robbed by customers); People v Ericksen, 288 Mich App 192, 203; 793 NW2d 120 (2010) (PSIR indicated that the victim suffered from depression and that his personality changed as a result of poor health following the assault and amputations); People v Davenport (After Remand), 286 Mich App 191, 200; 779 NW2d 257 (2009) (child victim of sexual abuse had undergone two series of counseling sessions to deal with abuse). In sum, given the record, reversal is required.