Opinion Analysis: Assessing OV 5 does not require evidence that victim's family intends to seek psychological treatment

People v. Calloway
Docket Nos. 153636 and 153751

Trial Lawyers’ Bottom Line: OV 5 should be assessed for “significant psychological injury,” even if victim’s family has no intention of seeking medical treatment

Damian Jones shot and killed a man he suspected of stealing his girlfriend’s phone.  Calloway served as the getaway driver and was convicted of second-degree murder on an aiding and abetting theory.  He was sentenced to 20 to 50 years in prison.

The trial court scored fifteen points for OV 5, which asks whether a “serious psychological injury requiring professional treatment occurred to a victim’s family.”  The Court of Appeals reversed because there was no evidence that any member of the victim’s family required or intended to seek professional treatment.

On appeal, the Supreme Court, in a unanimous per curiam opinion (with the exception of Justice Wilder) pointed out that the statute says a court should score fifteen points “‘if the serious psychological injury to the victim’s family may require professional treatment,’ and that ‘in making this determination, the fact that treatment has not been sought is not conclusive.’”

The Court noted that, though this threshold may be low, “trial courts must bear in mind that OV 5 requires a ‘serious psychological injury.’”  Even if the victim’s family did not seek treatment nor intends to do so, the trial court should ask whether the victim’s family member has suffered a serious psychological injury that may require professional treatment in the future.

The Court looked to the trial transcript and observed that the testimony revealed that the victim’s family had suffered “serious psychological injury.”  Therefore, the Court held that the trial court’s decision to apply fifteen points for OV 5 was correct.  The Court remanded the case for the trial court “to determine whether it would have imposed a materially different sentence under the sentencing procedure described in People v Lockridge.”

Full opinion here.