In People v. McChester, No 318145, the Michigan Court of Appeals held that under Offense Variable 4, for psychological injury to a victim, points may only be assessed where a preponderance of the evidence supports the proposition that the victim suffered serious psychological injury.
The defendant pled nolo contender to unarmed robbery, MCL 750.530, stemming from the robbery of a gas station. During the robbery, the defendant made gestures that suggested that he had a gun, although he did not, and said “I really don’t wanna pull this trigger on you so empty the register.” The police report noted that the cashier was “visibly shaken,” but the record reflected no other report of psychological harm to the victim. Attempts to contact the victim after the crime were unsuccessful, so she did not give a victim impact statement or otherwise provide testimony suggesting that she suffered serious psychological harm.
Judge Gleicher filed a concurrence to provide a more comprehensive explanation of how to apply OV 4. According to the concurrence, in order for points to be assessed under OV 4, “a preponderance of record evidence must substantiate that the victim sustained a psychological injury beyond the initial emotional trauma precipitated by the crime which is both so serious and of such duration that the victim likely requires psychological treatment.”
