People of Michigan v. Preston Fitzgerald Purnell ( 2020 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
December 17, 2020
Plaintiff-Appellee,
v No. 349201
Kent Circuit Court
PRESTON FITZGERALD PURNELL, LC No. 18-004775-FH
Defendant-Appellant.
Before: RONAYNE KRAUSE, P.J., and MARKEY and BORRELLO, JJ.
PER CURIAM.
Defendant was convicted by a jury of third-degree criminal sexual conduct (CSC-III), MCL
750.520d(1)(c) (sexual penetration of an incapacitated victim). The trial court sentenced defendant
to 5 to 30 years’ imprisonment. Defendant appeals the trial court’s assessment of 10 points for
offense variable (OV) 4 claiming there was insufficient evidence to prove by a preponderance of
the evidence that the victim suffered serious psychological injury requiring professional treatment.
For the reasons set forth in this opinion, we affirm.
I. BACKGROUND
This case arose from defendant’s sexual assault of a women while she was incapacitated
due to alcohol consumption. At trial, the victim testified that the incident made her “feel like you
have to question everybody, you can’t be friendly with everybody, no matter who they are.” The
victim also stated that she felt “like you got to question everything and anybody despite how long
you’ve known them or how long they’ve been around, you just can’t trust anybody.” Regarding
the effect of the assault on her relationships with her family, the victim testified that “family
members [she] was once close to don’t even speak anymore. It’s like two strangers passing each
other. We see each other, just don’t speak.” When asked if she ever sought counseling after the
incident, the victim stated that she did not but agreed that she should have.
The jury found defendant guilty of CSC-III. Before sentencing, the victim told the person
preparing defendant’s presentence investigation report that she “thought about participating in
counseling before, but could never bring herself to do it.” Defendant was assessed 10 points for
offense variable (OV) 4, and his minimum sentencing guidelines range was 30 to 75 months’
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imprisonment. The trial court sentenced defendant within his guidelines range, and defendant now
appeals.
II. ANALYSIS
Defendant argues on appeal that the trial court erred by assessing 10 points for OV 4
because there was insufficient evidence to prove by a preponderance of the evidence that the victim
suffered severe psychological injury requiring professional treatment. According to defendant,
OV 4 should have been scored 0 points, thereby reducing his minimum sentencing guidelines range
to 24 to 60 months’ imprisonment.
The prosecution argues that the trial court correctly scored OV 4. Additionally, the
prosecution argues that defendant failed to object to the scoring at sentencing or bring a motion
for resentencing or for a remand. As such, the prosecution argues, defendant is precluded from
challenging the scoring of OV 4.
“Under the sentencing guidelines, the circuit court’s factual determinations 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. However, because
defendant failed to preserve his challenge the scoring of OV 4 by raising the issue at sentencing,
in a motion for resentencing, or in a motion to remand, we review defendant’s claim for plain error.
People v Kimble, 470 Mich. 305, 312; 684 NW2d 669 (2004); People v Carines, 460 Mich. 750,
763; 597 NW2d 130 (1999). Under plain-error review, the defendant bears the burden to show
that an error occurred, it was clear or obvious, and it affected substantial rights. Carines, 460 Mich.
at 763. An error affects substantial rights when it caused prejudice or “affected the outcome of the
lower court proceedings.” Id.
“A trial court determines the sentencing variables by reference to the record, using the
standard of preponderance of the evidence.” People v Osantowski, 481 Mich. 103, 111; 748 NW2d
799 (2008). However, when “[t]here was record evidence permitting an inference” that a variable
was properly scored, this Court should uphold the trial court’s determination of that variable.
People v McFarlane, 325 Mich. App. 507, 536; 926 NW2d 339 (2018). A trial court may assess
10 points for OV 4 if the victim suffers a “serious psychological injury” that may require
professional treatment. MCL 777.34(1)(a) and (2). The fact that a victim sought treatment may
be considered when scoring OV 4, but actual treatment is not required for the assessment of 10
points. People v Lampe, 327 Mich. App. 104, 114; 933 NW2d 314 (2019); see also MCL 777.34(2).
Moreover, a victim’s statements regarding the impact of the defendant’s actions may properly be
considered as evidence of a victim’s psychological injury when assessing points for OV4. Lampe,
327 Mich. App. at 114.
Although “victims are often obviously, and understandably, frightened when a crime is
being perpetrated,” this fear by itself does not result in a serious psychological injury sufficient to
support a 10-point score for OV 4. People v White, 501 Mich. 160, 164-165; 905 NW2d 228
(2017). For example, "[t]he 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,
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unsafe, or violated." People v Armstrong, 305 Mich. App. 230, 247; 851 NW2d 856 (2014), as
quoted in Lampe, 327 Mich. App. at 114.
In Lampe, this Court determined that the psychological effects of defendant’s conduct on
the victim supported a 10-point score for OV 4 when the victim stated that his personality changed,
and he became “angry, afraid, distrustful, defensive, and hypervigilant” following the assault. Id.
at 114-115. Similarly, this Court has determined that a “victim’s statements about feeling angry,
hurt, violated, and frightened,” People v Williams, 298 Mich. App. 121, 124; 825 NW2d 671 (2012),
or about feeling “confusion, emotional turmoil, anger, guilt, and the inability to trust others,”
People v Armstrong, 305 Mich. App. 230, 247-248; 851 NW2d 856 (2014), also support an
assessment of 10 points for OV 4.
At trial, the victim stated that she felt an inability to trust others, even those closest to her,
as a result of the sexual assault. The victim’s statements regarding the impact of defendant’s
actions in causing her inability to trust others supported a finding that the victim suffered a
psychological injury. See Lampe, 327 Mich. App. at 114-115; Armstrong, 305 Mich. App. at 247-
248; Williams, 298 Mich. App. at 124. Additionally, although defendant admitted that she did not
attend counseling, she stated that she thought about participating in counseling and believed that
she should have sought counseling. Despite the victim’s decision not to seek counseling, the fact
that she considered counseling as a treatment for her personality change in being unable to trust
those around her supports a finding that she suffered a serious psychological injury that could
require professional treatment. See Lampe, 327 Mich. App. at 114; McFarlane, 325 Mich. App. at
536. Therefore, the trial court did not err in finding by a preponderance of the evidence, there was
sufficient evidence in the record to support a 10-point score for OV 4. Accordingly, we assign no
error and defendant is not entitled to relief. See Osantowski, 481 Mich. at 111; Carines, 460 Mich.
at 763; McFarlane, 325 Mich. App. at 536.
Affirmed.
/s/ Amy Ronayne Krause
/s/ Jane E. Markey
/s/ Stephen L. Borrello
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