People v. White
Docket No. 14940
Trial Lawyer’s Takeaway: points for OV 4 may not be assessed solely on the basis that a serious psychological injury would normally occur as a result of the crime; fear while the crime is being committed, by itself, is insufficient to assess points for OV 4.
At sentencing in a criminal case, the trial court weighs so-called “offense variables” to determine how serious the defendant’s crime was for purposes of determining the sentence length. These variables review the characteristics about the crime to determine its seriousness. For example, the offense variable at issue in this case—Offense Variable (OV) 4—recommends a longer sentence if a “serious psychological injury requiring professional treatment occurred to the victim.” The list of offense variables operates like a checklist, allowing the judge to tally up a total at the end, which will recommend a particular sentence length.
Here, White, while robbing a gas station, held a gun to the cashier’s head. The cashier said she thought she heard the trigger being pulled. During White’s plea colloquy, he agreed that the cashier “was afraid” that he “was going to shoot her.” The trial court decided that OV 4 was satisfied because “people would typically suffer a psychological injury when confronted with the instant crime.”
The Court, in a per curiam opinion, rejected the trial court’s finding. The Court held that a trial court “may not simply assume that someone in the victim’s position would have suffered psychological harm” just because “a reasonable person in that situation” would have. Instead, the trial court must find that a serious psychological injury actually occurred to the victim.
The Court also analyzed whether White’s statement in his plea colloquy could support the trial court’s scoring of OV 4. The Court concluded it could not, holding that “a victim’s fear during a crime, by itself and without any other showing of psychological harm” does not warrant scoring maximum (ten) points for OV 4. To this extent, the Court overruled the Court of Appeals’ decision in People v. Agpar, 264 Mich. App. 321 (2004).
But the Court said in a footnote that a victim’s fear while the crime is being committed is still relevant to scoring OV 4. The Court clarified that it “merely h[e]ld that, absent other evidence of psychological harm, fear felt during the crime is insufficient to assess points for this variable.”
Justice Clement took no part in the case.
Full opinion here.