                            STATE OF MICHIGAN

                             COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    July 6, 2017
                 Plaintiff-Appellee,

v                                                                   No. 332216
                                                                    Washtenaw Circuit Court
KYLE KEITH CLARK,                                                   LC No. 11-001541-FC

                 Defendant-Appellant.


Before: TALBOT, C.J., and BECKERING and M. J. KELLY, JJ.

PER CURIAM.

        Defendant, Kyle Keith Clark, appears in this Court a second time to appeal by right the
sentence imposed after a jury convicted him of criminal sexual conduct, third degree (CSC III),
MCL 750.520d(1)(b), and domestic violence, MCL 750.81(2). Defendant now contends that the
trial court erred by assigning 10 points to offense variable 4 (psychological injury to the victim)
in the absence of evidence of a serious psychological injury. For the reasons stated below, we
affirm.

                                       I. RELEVANT FACTS

          We take the following relevant facts from the Court’s decision in defendant’s prior
appeal:

          At the time of complainant’s assault, complainant and defendant had lived
          together for approximately four years and defendant was then living with
          complainant for what complainant termed a “trial basis.” The day before
          the assault, complainant had given defendant money for gas to drive back a
          vehicle he intended to purchase that night. Defendant instead bought crack
          with the money and stayed overnight in a crack house. Complainant texted
          and called defendant numerous times to determine his whereabouts, but he did
          not answer. According to the complainant, defendant showed up at their home
          early the next day banging on the front door. Complainant indicated that she
          did not want defendant there and that she told him to go away. Defendant did
          not leave, but instead pushed the door open, breaking the lock. The two
          argued and defendant went upstairs to sleep in the bed they shared.
          Complainant left to take her son to school and upon returning got in the shower
          to get ready for work. After complainant had finished her shower, and was
                                                -1-
       still in the bathroom, defendant entered and ordered her to perform fellatio on
       him. Complainant told him she was “done with him” and basically that their
       relationship was over. Defendant had also testified to the waning of their
       relationship and to his plans of moving out. According to the complainant,
       when she refused to perform oral sex on defendant he grabbed her by her hair
       and pushed her up the stairs to their bedroom.

               Once upstairs, defendant pushed complainant face first onto their bed,
       spit on her anus and proceeded to anally rape her. Complainant told defendant
       to stop and defendant choked her until she passed out. When complainant awoke
       defendant had his arm around her and would not let her go. Defendant’s
       employer called and complainant reached for the phone. Defendant responded
       by choking her again, but let go when complainant apologized. Defendant
       and complainant eventually went downstairs. Complainant began to brush her
       hair for work while defendant heated food. Once defendant’s back was turned
       complainant grabbed her robe and ran out of the house to the vehicle where she
       had left her keys. She drove to her work and informed her employer of what had
       happened. Her employer instructed another employee to return home with her.
       When complainant returned home, defendant was gone. She dressed, called the
       police and followed a deputy to a hospital where a sexual assault exam was
       performed. [People v Clark, unpublished opinion per curiam of the Court of
       Appeals, issued June 19, 2014 (Docket No. 313121), pp 1-2.]

        A jury convicted defendant for CSC III and domestic violence, and the trial court
originally sentenced him to 10 to 15 years’ imprisonment for the CSC III conviction and 93 days
for the domestic violence conviction. Defendant appealed by right and this Court rejected all of
defendant’s claims of error except his challenge to the scoring of offense variable (OV) 3, which
the panel concluded had been improperly scored, but it determined that resentencing was not
required because the guidelines did not change. Clark, unpub op at 7. Our Supreme Court
reversed in part, and remanded the case to the trial court for resentencing, explaining:

       Had Offense Variable (OV) 3, MCL 777.33, not been scored, the correct
       guidelines range was 84 to 140 months, rather than the range of 87 to 145 months
       on which the defendant’s sentence was based. Therefore, the defendant is entitled
       to relief under the rationale of People v Francisco, 474 Mich 82; 711 NW2d 44
       (2006). [People v Clark, 498 Mich 858; 865 NW2d 32 (2015).]

        At his resentencing hearing, defendant argued that the score for OV 4 (psychological
injury to victim), MCL 777.34, should also be reduced to zero because there was insufficient
evidence to justify the heightened score. The trial court disagreed, citing the victim’s impact
statement as justification for the score. The trial court resentenced defendant to concurrent
prison terms of 10 to 15 years for the CSC-III conviction and 93 days for the domestic violence
conviction, and credited him 356 days on his CSC-III sentence and 93 days (time served) on his
domestic violence sentence. Defendant now appeals the trial court’s decision regarding the
scoring of OV 4, contending that a preponderance of the evidence does not support the trial
court’s finding that the complainant suffered serious psychological injury.


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                                           II. ANALYSIS

        A preponderance of the evidence must support the trial court’s findings of fact, which
this Court reviews for clear error. People v McChester, 310 Mich App 354, 358; 873 NW2d
646, 648 (2015), citing People v. Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013). “ ‘Clear
error is present when the reviewing court is left with a definite and firm conviction that an error
occurred.’ ” People v. Fawaz, 299 Mich App 55, 60, 829 NW2d 259 (2012), quoting People v
Buie, 491 Mich 294, 315-316; 817 NW2d 33 (2012). The Court reviews de novo “ ‘[w]hether
the facts, as found, are adequate to satisfy the scoring conditions prescribed by statute . . . .’ ”
McChester, 310 Mich App at 358, quoting Hardy, 494 Mich at 438. “When calculating the
sentencing guidelines, a court may consider all record evidence, including the contents of a
PSIR, plea admissions, and testimony presented at a preliminary examination.” McChester, 310
Mich App at 358.

        Offense variable 4 addresses the psychological injury to a victim and directs a sentencing
court to assess 10 points if “[s]erious psychological injury requiring professional treatment
occurred to a victim.” MCL 777.34(1)(a). In a similar context, Michigan’s Supreme Court has
recently defined “serious” as “having important or dangerous consequences.” People v
Calloway, __ Mich __; __ NW2d __ (2017), slip op at 6.1 The fact that the victim did not seek
professional treatment is not conclusive when scoring the variable; rather, 10 points is to be
scored “if the serious psychological injury may require professional treatment.” MCL 777.34(2);
People v Lockett, 295 Mich App 165, 183; 814 NW2d 295 (2012). Nevertheless, “[t]here must
be some evidence of [serious] psychological injury on the record to justify a 10-point score.”
Lockett, 295 Mich App at 183. A trial court “may not simply assume that someone in the
victim’s position would have suffered psychological harm because MCL 777.34 requires that
serious psychological injury ‘occurred to a victim.’ ” Id. In the absence of such record
evidence, the sentencing court should assess zero points for OV 4. McChester, 310 Mich App at
356.

          As the Court explained in People v Williams, 298 Mich App 121, 124; 825 NW2d 671
(2012),

          We have held that evidence that a victim was left feeling “pretty angry,” and
          “try[ing] to block out the memory,” of a crime was adequate to uphold an
          assessment of 10 points under OV 4. People v Waclawski, 286 Mich App 634,
          681; 780 NW2d 321 (2009). We have also held that evidence that a victim was
          “fearful during the encounter with [the] defendant” was sufficient to support such
          a score. People v Apgar, 264 Mich App 321, 329; 690 NW2d 312 (2004).




1
  The Calloway Court defined “serious” in the context of OV 5, which addresses serious
psychological injury to a victim’s family.


                                                 -3-
Applying this caselaw to the facts in Williams, the Court held that the “victim’s statements about
feeling angry, hurt, violated, and frightened” supported the sentencing court’s assessment of 10
points for OV 4. Id.; see also People v Armstrong, 305 Mich App 230, 247; 851 NW2d 856
(2014) (10 points properly assessed for OV 4 where the complainant “expressed that she felt
confusion, emotional turmoil, anger, guilt, and the inability to trust others”). This Court has also
stated that a “victim’s expression of fearfulness is enough to satisfy [MCL 774.34(1)(a)].”
People v Davenport (After Remand), 286 Mich App 191, 200; 779 NW2d 257 (2009), citing
Apgar, 264 Mich App at 329; see also People v Earl, 297 Mich App 104, 109-110; 822 NW2d
271 (2012) (10 points properly assessed for OV 4 where the victim of a bank robbery was
nervous and scared during the robbery and indicated in her victim impact statement that she
“suffered from sleeplessness for weeks as a result of [the] defendant’s actions, ‘relived’ the
events of the robbery every time she closed her eyes, and now fears being robbed by her bank
customers”).

       By contrast, this Court has deemed it improper to assess 10 points for OV 4 in the
absence of record evidence of serious psychological injury, even where a sentencing court might
reasonably infer such injury. For example, in concluding that the sentencing court improperly
assessed 10 points for OV 4 in McChester, 310 Mich App at 358-359, the Court explained:

               While the victim in this case may very well have suffered a serious
       psychological injury requiring professional treatment or that may have required
       professional treatment, considering that defendant convincingly acted as if he had
       a gun and threatened to shoot her, the only information or evidence in the record
       regarding the victim's psychological state was the PSIR's reference to her being
       “visibly shaken.” The victim's impact statement in the PSIR revealed that “[a]ll
       attempts to contact the victim ha[d] been unsuccessful.” The victim did not
       present an oral or written statement at sentencing, nor did she testify in any
       meaningful way at the preliminary examination in regard to her psychological
       state, which is to be expected given that the focus of the hearing was on the
       elements of the crime and defendant’s involvement. There simply was not a
       preponderance of evidence establishing that the victim suffered a serious
       psychological injury.

        Likewise, in Lockett, 295 Mich App at 183, the Court deemed it error to assess 10 points
for OV 4 where “[t]here was no testimony indicating that [the victim] suffered a psychological
injury, the presentence report contains no information that would indicate any victims suffered
psychological harm, and the record does not include a victim-impact statement.”

        Contrary to defendant’s contention on appeal, the instant case more closely resembles
those in which this Court has affirmed assessments of 10 points for OV 4 than those in which it
has found such assessments improper because they were unsupported by record evidence. The
complainant testified that she pleaded with defendant not to force her upstairs, pleaded with him
to stop assaulting her anally, and was screaming to such an extent that he began to choke her
until she passed out. Such was her fear that, while defendant was in the kitchen, she fled the
house wearing nothing but her bathrobe and drove to her place of employment, where she knew
defendant could not follow her. The testimony of the complainant’s employer that the
complainant was “very upset, crying, very upset,” corroborated similar testimony from the

                                                -4-
complainant. In her victim impact statement, the complainant asked the trial court to give
defendant the maximum penalty because she did not want to have to look over her shoulder for
him coming for a very long time, and that if the court had not set bail high enough, she fully
believed he would have been released and “this day would have never came. One of two things
would have happened he would have came [sic] straight after me or ran. So thank you.” Her
remarks showed an ongoing fear of defendant and her safety. Under Michigan caselaw, being
fearful during the encounter is sufficient to support a score of 10 points for OV 4. Apgar, 264
Mich App at 329; see also Davenport (After Remand), 286 Mich App at 200 (A “victim’s
expression of fearfulness is enough to satisfy [MCL 774.34(1)(a)].”). Here, the complainant was
fearful of defendant at the time of the encounter and she continued to be fearful of him.

        In her victim impact statement, the complainant stated that “[f]or almost 1 year now I
haven’t been able to move on with my life.” She testified at trial and included in her victim
impact statement that the assault left her embarrassed, ashamed, and feeling “stupid,” and that
she relived these emotions during the trial and continues to rethink “everything [defendant] has
done to me.” The complainant’s sense of guilt permeates the victim impact statement, as she
blames herself for “believing [defendant’s] lies and manipulations” and putting herself and her
child in danger. The complainant stated that she wanted to block out the event and “forget about
how stupid [she] was to ever believe anything that came out of [defendant’s] mouth.” Also
evident in the complainant’s victim impact statement is a sense of anger directed at defendant for
his apparent inability to “learn from his mistakes and actions” and to “control his anger,” as well
as at herself for somehow allowing the assault to happen. Under Michigan caselaw, a victim’s
continuing feelings of anger and guilt can adequately support an assessment of 10 points for OV
4.2 See Armstrong, 305 Mich App at 247 (the trial court properly assessed 10 points for OV 4
where the complainant “expressed that she felt confusion, emotional turmoil, anger, guilt, and
the inability to trust others”).

                                       III. CONCLUSION

       We conclude that the trial court did not clearly err in finding that a preponderance of the
evidence established that the complainant in this case suffered serious psychological injury that
may require professional treatment. Hardy, 494 Mich at 438. As indicated above, the
complainant was very fearful during the encounter, and her victim impact statement reflects her
continuing feelings of fear, anger, and guilt, all of which this Court has found sufficient to
support a finding of serious psychological injury sufficient to warrant scoring OV 4 at 10 points.
See Davenport (After Remand), 286 Mich App at 200; Armstrong, 305 Mich App at 247.



2
  Defendant implies that, even if the complainant was fearful during the event, there is no
evidence of long-term psychological injury of the type envisioned by the Legislature when it
provided for enhanced sentencing for offenses likely to cause lasting consequences, citing as
authority for his position the concurring opinion in McChester, 310 Mich App at 360-369.
However, a concurring opinion is not binding precedent. Further, as we have amply illustrated,
the record in this case supports the trial court’s finding of serious psychological injury under
binding Michigan caselaw.


                                                -5-
Further, on de novo review, we conclude that the facts, as found, are adequate to satisfy the
scoring conditions prescribed by OV 4, MCL 777.34. Hardy, 494 Mich at 438; McChester, 310
Mich App at 358.

       Affirmed.



                                                         /s/ Michael J. Talbot
                                                         /s/ Jane M. Beckering
                                                         /s/ Michael J. Kelly




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