Michigan Criminal Sentencing Guidelines • Offense Variables

OV 4 — Psychological Injury to a Victim

Offense Variable 4 — Psychological Injury to a Victim — MCL 777.34
MCL 777.34
OV 4 addresses serious psychological injury to a victim that may require professional treatment. It is an offense-specific variable under People v McGraw, 484 Mich 120 (2009). Scoring requires actual evidence of serious psychological injury to the victim of the sentencing offense — courts may not assume or infer psychological harm solely from the nature of the crime.

Scoring Table — MCL 777.34

PointsCircumstances
10Serious psychological injury requiring professional treatment occurred to a victim. MCL 777.34(1)(a).
5Serious psychological injury requiring professional treatment occurred to the owner of a companion animal. MCL 777.34(1)(b). [Added by 2018 PA 652, effective March 28, 2019.]
0No serious psychological injury requiring professional treatment occurred to a victim. MCL 777.34(1)(b).
Special Scoring Provision Under MCL 777.34(2), points may be scored even if the victim has not sought treatment — the variable requires only that the injury "may require" professional treatment. However, there must be actual record evidence that serious psychological injury occurred, not merely an assumption that it would normally result from the type of crime committed.
Practice Note — Hardy Standard In People v Hardy, 494 Mich 430 (2013), the Michigan Supreme Court rejected the "any evidence" standard previously used by the Court of Appeals, requiring instead a preponderance of the evidence. Many pre-Hardy OV 4 decisions from the Court of Appeals that upheld scoring on the "any evidence" standard may have been wrongly decided. Defense counsel should not concede OV 4 based solely on adverse pre-Hardy precedent without examining whether the evidence actually constitutes a preponderance.

General Principles

People v White 501 Mich 160 (2017), overruling in part People v Apgar, 264 Mich App 321 (2004)

Points for OV 4 may not be assessed solely on the basis of a trial court's conclusion that serious psychological injury would normally occur as a result of the crime. MCL 777.34 requires that injury "occurred to a victim" — an actual person's actual experience must be demonstrated. This is the controlling standard for what is insufficient to score OV 4.1

People v McGraw 484 Mich 120, 133 (2009)

OV 4 is an offense-specific variable. Scoring must be limited to psychological injury caused to a victim during or as a result of the sentencing offense. Psychological injury to victims of other charged or uncharged conduct is not cognizable under OV 4.2

People v Biddles 316 Mich App 148, 167 (2016)

The record contained no evidence that serious psychological injury occurred to a victim as a result of the defendant being a felon and being seen carrying a gun after a shooting. Where the defendant was convicted only of felon-in-possession based on conduct apart from the shooting, OV 4 should have been scored at zero points.3

Circumstances Supporting a Score of Ten Points

People v Schrauben 314 Mich App 181 (2016), overruled in part on other grounds by People v Posey, __ Mich __ (2023)

Ten points were properly scored where the victim had written a letter stating the past three years had been a psychological struggle; the court observed his demeanor at trial as evidencing obvious psychological injury; and the defrauded business had been his life's work, with everything having changed for him since the offense.4

People v Bosca 310 Mich App 1 (2015), rev'd in part on other grounds 509 Mich 851 (2022)

Ten points were properly scored where one minor victim was in counseling for PTSD with increased anger and memory problems, and another had consulted a therapist. The victims had been held for hours, duct-taped, kicked, beaten, and threatened with an electric circular saw.5

People v Gibbs 299 Mich App 473 (2013)

No error in assessing 10 points where one victim testified the experience was traumatic and he had bad dreams, another stated he no longer felt safe, and a third referenced the psychological impact at sentencing.6

People v Earl 297 Mich App 104 (2012)

Ten points were properly scored where the victim testified at trial she was nervous and scared during a bank robbery and her written impact statement indicated sleeplessness for weeks and continuing fear of being robbed by her customers.7

People v Ericksen 288 Mich App 192 (2010)

OV 4 was properly scored at 10 points where the presentence report indicated the victim suffered from depression and personality change as a result of continuing poor health from the crime, including the amputation of portions of both legs due to medical complications.8

People v Waclawski 286 Mich App 634 (2009)

OV 4 was properly scored at 10 points in a first-degree criminal sexual conduct case where there was evidence the victim was "pretty angry" and had tried to block out the memory of the abuse. Note: the Court of Appeals referenced the now-overruled "any evidence" standard; counsel should assess whether this evidence satisfies the Hardy preponderance standard.9

People v Drohan 264 Mich App 77 (2004), aff'd on other grounds 475 Mich 140 (2006)

OV 4 was properly scored on the basis of evidence of the victim's disrupted life, including problems in her marriage and at work, and her plan to seek treatment following a sexual assault.10

Circumstances Warranting a Score of Zero Points

People v McChester 310 Mich App 354 (2015)

Zero points appropriate. The only information in the record was a PSIR reference that the victim was "visibly shaken." All attempts to contact the victim had been unsuccessful; she presented no oral or written statement and did not testify meaningfully about her psychological state. There was simply not a preponderance of evidence establishing serious psychological injury.11

People v Lockett 295 Mich App 165 (2012)

Zero points appropriate. The trial court erred in assessing 10 points based solely on its assumption that "any normal person of that age" would have suffered serious psychological injury. There was no testimony or PSIR indication that any victim suffered psychological harm, and no victim impact statement was in the record. Courts may not assume serious psychological injury from the nature of the offense alone.12

People v Wine 500 Mich 859 (2016)

Zero points appropriate. An armed robbery victim's statement that she surrendered her purse to save her life and her family's, and a PSIR indication she feared being killed during the incident, were insufficient to establish serious psychological injury. Fear during the crime alone, without other evidence of psychological harm, is insufficient under White.13

People v Hult Unpublished per curiam opinion of the Court of Appeals, issued January 14, 2021 (Docket No. 350103)

Zero points appropriate. The victim's impact statement referred to emotional issues resulting from allegations relating to an assault during an attempted robbery and carjacking, but the jury acquitted on those charges. Points could not be assessed under OV 4 for the sentencing offense of UDAA where the psychological injury was tied to acquitted conduct.14

People v Thomas Unpublished per curiam opinion of the Court of Appeals, issued December 22, 2022 (Docket No. 360985)

Zero points appropriate. In a larceny-from-a-person case, the victim stated his psychological injury resulted from having to deal with replacing stolen items and loss of personal information. The panel reversed the 10-point score, finding nothing to substantiate that the victim's injury was beyond the normal result of the crime, and that the trial court's finding that his "world was turned upside down" was insufficient under the preponderance standard.15

Endnotes

  1. People v White, 501 Mich 160 (2017), overruling in part People v Apgar, 264 Mich App 321 (2004).
  2. People v McGraw, 484 Mich 120, 133 (2009).
  3. People v Biddles, 316 Mich App 148, 167 (2016).
  4. People v Schrauben, 314 Mich App 181 (2016), overruled in part on other grounds by People v Posey, __ Mich __ (2023).
  5. People v Bosca, 310 Mich App 1 (2015), rev'd in part on other grounds 509 Mich 851 (2022).
  6. People v Gibbs, 299 Mich App 473 (2013).
  7. People v Earl, 297 Mich App 104 (2012).
  8. People v Ericksen, 288 Mich App 192 (2010).
  9. People v Waclawski, 286 Mich App 634 (2009).
  10. People v Drohan, 264 Mich App 77 (2004), aff'd on other grounds 475 Mich 140 (2006).
  11. People v McChester, 310 Mich App 354 (2015).
  12. People v Lockett, 295 Mich App 165 (2012).
  13. People v Wine, 500 Mich 859 (2016).
  14. People v Hult, unpublished per curiam opinion of the Court of Appeals, issued January 14, 2021 (Docket No. 350103).
  15. People v Thomas, unpublished per curiam opinion of the Court of Appeals, issued December 22, 2022 (Docket No. 360985).