                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                      UNPUBLISHED
                                                                      May 5, 2015
               Plaintiff-Appellee,

v                                                                     No. 319981
                                                                      Wayne Circuit Court
RANDY LEE LASTER,                                                     LC No. 13-006566-FH

               Defendant-Appellant.


Before: TALBOT, C.J., and MURPHY and GLEICHER, JJ.

PER CURIAM.

       Defendant was convicted by a jury of aggravated stalking, MCL 750.411i. He was
sentenced to two to five years’ imprisonment for his conviction. Defendant solely appeals the
sentence, arguing that the trial court incorrectly scored the guidelines by assessing 50 points for
offense variable (OV) 7, MCL 777.37, and 10 points for OV 4, MCL 777.34. We affirm.

        The trial court’s factual determinations under the sentencing guidelines are reviewed for
clear error and must be supported by a preponderance of the evidence. People v Hardy, 494
Mich 430, 438; 835 NW2d 340 (2013). “Whether the facts, as found, are adequate to satisfy the
scoring conditions prescribed by statute, i.e., the application of the facts to the law, is a question
of statutory interpretation, which an appellate court reviews de novo.” Id.

        OV 7 concerns “aggravated physical abuse,” and a score of 50 points is properly assessed
under OV 7 when “[a] victim was treated with sadism, torture, or excessive brutality or conduct
designed to substantially increase the fear and anxiety a victim suffered during the offense.”
MCL 777.37(1)(a). If this provision is inapplicable, zero points are to be assessed in scoring OV
7. MCL 777.37(1)(b). We initially note that while this case concerns conduct rising to the level
of aggravated stalking, it did not entail any physical abuse or contact. However, in regard to OV
7, this Court has held “that the language of the statute includes situations in which there is
emotional or psychological, but not physical, abuse of the victim and that actual physical abuse
is not required to justify assessing 50 points for this variable.” People v Mattoon, 271 Mich App
275, 276; 721 NW2d 269 (2006).

       In Hardy, the Michigan Supreme Court interpreted the phrase, “conduct designed to
substantially increase the fear and anxiety a victim suffered during the offense,” as used in MCL
777.37(1)(a). Hardy, 494 Mich at 440-444. The Hardy Court observed:


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               [W]e agree with the Court of Appeals that “[a]ll . . . crimes against a
       person involve the infliction of a certain amount of fear and anxiety.” Since the
       “conduct designed” category only applies when a defendant's conduct was
       designed to substantially increase fear, to assess points for OV 7 under this
       category, a court must first determine a baseline for the amount of fear and
       anxiety experienced by a victim of the type of crime or crimes at issue. To make
       this determination, a court should consider the severity of the crime, the elements
       of the offense, and the different ways in which those elements can be satisfied.
       Then the court should determine, to the extent practicable, the fear or anxiety
       associated with the minimum conduct necessary to commit the offense. Finally,
       the court should closely examine the pertinent record evidence, including how the
       crime was actually committed by the defendant. As noted above, evidence which
       satisfies an element of an offense need not be disregarded solely for that reason.
       Instead, all relevant evidence should be closely examined to determine whether
       the defendant engaged in conduct beyond the minimum necessary to commit the
       crime, and whether it is more probable than not that such conduct was intended to
       make the victim's fear or anxiety increase by a considerable amount. [Id. at 442-
       443 (citations omitted; ellipsis and emphasis in original).]

The Hardy Court concluded that “[t]he relevant inquiries are (1) whether the defendant engaged
in conduct beyond the minimum required to commit the offense; and, if so, (2) whether the
conduct was intended to make a victim’s fear or anxiety greater by a considerable amount.” Id.
at 443-444.

         Aggravated stalking consists of the crime of stalking and the presence of an aggravating
circumstance specified in MCL 750.411i(2). People v Threatt, 254 Mich App 504, 505; 657
NW2d 819 (2002). Stalking is “a willful course of conduct involving repeated or continuing
harassment of another individual that would cause a reasonable person to feel terrorized,
frightened, intimidated, threatened, harassed, or molested and that actually causes the victim to
feel terrorized, frightened, intimidated, threatened, harassed, or molested.” MCL 750.411i(1)(e);
MCL 750.411h(1)(d). Stalking is elevated to aggravated stalking when, among other possible
scenarios, the actions constituting the offense of stalking are in violation of a condition of
probation or a restraining order. MCL 750.411i(2)(a) and (b). The record indicates that, with
respect to the time of the charged incidents, defendant was subject to an order of probation that
prohibited him from stalking or harassing the victim.

        We hold that defendant engaged in conduct beyond the minimum necessary to commit
the crime of aggravated stalking. In considering the elements of aggravated stalking and the
different ways that the elements may be satisfied, defendant could have committed aggravated
stalking by simply engaging in a willful course of conduct involving repeated or continuous
harassment that would have caused a reasonable person, and did cause the victim, to feel
harassed or molested. Instead, defendant engaged in conduct that went well beyond the
minimum necessary to commit aggravated stalking. Beyond just merely harassing the victim,
defendant acted in a manner designed to substantially increase her fear and anxiety by way of
three phone calls on April 8, 2013, and three voicemails left for her on May 11, 2013.

      With respect to the April 8th phone calls, defendant told the victim that “she should sleep
with one eye open” and asked her if she had “ever seen a burning bed.” As a result of
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defendant’s “burning bed” question, the victim thought that defendant was going to burn her
house down. Moments later, defendant again called the victim, asking a question that suggested
to the victim that he had people watching her home. Then on May 11, 2013, defendant left a
voicemail for the victim in which he stated that he was not someone the victim “should f**k
with.” And later that day, defendant threatened in another voicemail that he knew where the
victim lived and slept and that he would get “ruthless” if necessary. The victim construed these
voicemails as constituting physical threats that caused her great fear and anxiety, and with good
reason. She testified to a history with defendant that included him putting a butcher’s knife to
her throat, pressing a lit cigarette on her face, punching her in the face and head, resulting in
bruises and black eyes, and throwing objects at her. Additionally, a police officer testified that
the voicemails sounded “pretty threatening” and that the victim was “visibly upset” and shaking
as she played the voicemails for the officer. Even in the context of aggravated stalking that can
be established by showing terror, fright, or intimidation, we are addressing a case involving not
only terror and fear about incurring a nonfatal physical injury, but a case, given the nature of the
threats and background, giving rise to a genuine terror and fear of death. Under these
circumstances, there was a preponderance of evidence establishing that defendant engaged in
conduct that went beyond the minimum necessary to commit the crime of aggravated stalking
and that was designed to substantially increase the victim’s fear and anxiety by a considerable
amount. Accordingly, the trial court did not err in assessing 50 points for OV 7.

        Defendant also asserts that the trial court erred in assessing 10 points for OV 4, which
addresses psychological injury to a victim, MCL 777.34. We initially find that given our
affirmance of the 50-point score for OV 7, resentencing would be unnecessary even if OV 4
should have been assessed at zero points. The deduction of 10 points would not alter the offense
variable level in the sentencing grid applicable to defendant, as level VI applies to a score of 75
or more points and defendant’s total score would simply be reduced from 110 to 100 points.
MCL 777.66 (scoring grid for class E offenses); People v Francisco, 474 Mich 82, 89 n 8; 711
NW2d 44 (2006) (“Where a scoring error does not alter the appropriate guidelines range,
resentencing is not required.”). Moreover, the victim’s testimony about being scared, frightened,
“watch[ing] her back,” looking over her shoulder constantly, and checking her home to make
sure it was safe, along with the officer’s testimony that the victim was “visibly upset” and
shaking, constituted sufficient evidence to conclude that “[s]erious psychological injury
requiring professional treatment occurred to [the] victim,” thereby justifying the 10-point score.
MCL 777.34(1)(a); People v Armstrong, 305 Mich App 230, 247; 851 NW2d 856 (2014) (“The
trial court may assess 10 points for OV 4 if the victim suffers, among other possible
psychological effects, personality changes, anger, fright, or feelings of being hurt, unsafe, or
violated.”). The fact that there was no evidence of the victim actually seeking treatment does not
undermine our ruling, as 10 points can be assessed for a serious psychological injury that may
simply require professional treatment. MCL 777.34(2) (“the fact that treatment has not been
sought is not conclusive”). Accordingly, the trial court did not err in assessing 10 points for OV
4.

       Affirmed.

                                                             /s/ Michael J. Talbot
                                                             /s/ William B. Murphy
                                                             /s/ Elizabeth L. Gleicher

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