People of Michigan v. Michael James Andrews ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
June 9, 2022
Plaintiff-Appellee,
v No. 354960
Isabella Circuit Court
MICHAEL JAMES ANDREWS, LC No. 2019-001063-FH
Defendant-Appellant.
Before: BORRELLO, P.J., and JANSEN and MURRAY, JJ.
PER CURIAM.
Defendant pleaded no contest to first-degree home invasion, MCL 750.110a(2), and
larceny of a firearm, MCL 750.357b. The trial court sentenced defendant to 8 to 20 years’
imprisonment for first-degree home invasion and 3 to 5 years’ imprisonment for larceny of a
firearm. Defendant appeals as on leave granted, following a remand by the Supreme Court.1 We
affirm.
Defendant broke into the victims’ home in September 2019. Defendant had been allowed
to sleep at the victims’ residence a few nights a week when invited by their son. However,
defendant was not allowed to enter their home without permission. Defendant knew that the family
would be out of town from September 15, 2019, through September 16, 2019. Defendant entered
the residence without permission, removed 12 guns from the home, and drove away with the
family’s car, which he subsequently returned. Defendant sold the guns for money. Defendant
pleaded no contest to charges of first-degree home invasion and larceny of a firearm in exchange
for dismissal of other charges by the prosecution.
Defendant argues that the trial court improperly scored offense variable (OV) 4.
Specifically, defendant contends that the record lacks sufficient evidence showing psychological
harm to the victim because of his conduct. We disagree.
1
People v Andrews, 508 Mich 943; 964 NW2d 374 (2021).
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“Under the sentencing guidelines, the trial court’s findings of fact are reviewed for clear
error and must be supported by a preponderance of the evidence.” People v McChester, 310 Mich
App 354, 358; 873 NW2d 646 (2015). “The trial court’s findings are clearly erroneous if, after we
have reviewed the entire record, we are definitely and firmly convinced that it made a mistake.”
People v Armstrong, 305 Mich App 230, 242; 851 NW2d 856 (2014). “ ‘Preponderance of the
evidence’ means such evidence as, when weighed with that opposed to it, has more convincing
force and the greater probability of truth.” People v Cross, 281 Mich App 737, 740; 760 NW2d
314 (2008).
OV 4 addresses a victim’s psychological injury. MCL 777.34(1). Ten points are assessed
for OV 4 when “[s]erious psychological injury requiring professional treatment occurred to a
victim.” MCL 777.34(1)(a). MCL 777.34(2) clarifies that 10 points are assessed “if the serious
psychological injury may require professional treatment. In making this determination, the fact
that treatment has not been sought is not conclusive.” “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.” Armstrong, 305 Mich App at 247.
“[A] sentencing court is afforded broad discretion in the sources and types of information
to be considered when imposing a sentence[.]” People v Albert, 207 Mich App 73, 74; 523 NW2d
825 (1994). Moreover, “[w]hen calculating the sentencing guidelines, a court may consider all
record evidence, including the contents of a [presentence investigation report (PSIR)], plea
admissions, and testimony presented at a preliminary examination.” McChester, 310 Mich App
at 358.
Defendant’s argument that the record fails to support an assessment of 10 points under OV
4 lacks merit. The trial court properly considered the victim-impact statement submitted with the
PSIR when scoring OV 4.2 The victim-impact statement demonstrated that the victims suffered
serious psychological injuries. After defendant broke into their home and stole their property, the
victims experienced psychological effects such as lack of sleep and feelings of being hurt, unsafe,
and violated. In the victim-impact statement, the victims expressed that they suffered from lack
of sleep because of stress caused by the feeling of uncertainty whether defendant would return or
use the weapons stolen against them, that they felt violated, and that defendant had destroyed the
safe feeling of their home. Although the victims did not state that they intended to pursue
counseling, actual treatment or an intent to seek treatment is not required for scoring OV 4.
Accordingly, these statements sufficiently supported scoring OV 4 at 10 points.
Affirmed.
/s/ Stephen L. Borrello
/s/ Kathleen Jansen
/s/ Christopher M. Murray
2
Although defendant asserts that no victim-impact statement was submitted, the record reflects
that the parties and trial court discussed the victim-impact statement on the record at the sentencing
hearing.
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