People of Michigan v. Scott Robert Radley ( 2023 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
July 27, 2023
Plaintiff-Appellee,
v No. 361883
Macomb Circuit Court
SCOTT ROBERT RADLEY, LC No. 2021-000478-FC
Defendant-Appellant.
Before: CAMERON, P.J., and BORRELLO and O’BRIEN, JJ.
PER CURIAM.
Defendant appeals as of right his jury-trial convictions of two counts of assault with intent
to commit great bodily harm less than murder (AWIGBH), MCL 750.84(1)(a);1 carrying a
dangerous weapon with unlawful intent, MCL 750.226; and malicious destruction of personal
property worth $1,000 or more but less than $20,000, MCL 750.377a(1)(b)(i). Defendant was
sentenced to 34 to 120 months’ imprisonment for each of his AWIGBH convictions, 34 to 60
months’ imprisonment for his carrying a dangerous weapon with unlawful intent conviction, and
34 to 60 months’ imprisonment for his malicious destruction of property conviction, with his
sentences to be served concurrently. For the reasons set forth in this opinion, we affirm.
I. BACKGROUND
Late one night, defendant and his friends decided to return to the home of the victims to
get revenge following an earlier disagreement and altercation involving defendant, defendant’s
friends, and the two victims in this case. Defendant, Joseph McMath, Victoria Niner, Alaysia
Morgan, and Alyssa Hoffman drove to the home where the victims, Bradley Keats and Bernard
Shillinger lived. There was testimony that the original plan was to slash the tires of some vehicles
at the house or confront Keats. Defendant and McMath were each armed with a knife. When they
1
Defendant was charged with, and tried on, two counts of assault with intent to commit murder
(AWIM), MCL 750.83; but was acquitted of those charges and convicted of the lesser included
offenses of AWIGBH.
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arrived at the house, defendant and McMath got out of the vehicle. After slashing the tires of
Keats’ vehicles, as well as smashing the windows and committing other damage to the exteriors
of the vehicles that amounted to over $1,700 in damage, defendant and McMath fled.
Keats came out of the house wielding a baseball bat and chased after them. McMath fell,
and Keats caught up to him. A fight between the two ensued. McMath testified that Keats put
him in a headlock. McMath testified that while he was grappling with Keats, neither he nor Keats
had a weapon because McMath had dropped his knife and Keats had dropped his bat. Keats
testified that he dropped the bat before he began wrestling with McMath. According to Keats, he
wrestled with McMath for a few seconds and then felt something like being hit in the back. He
later realized he had been stabbed. Shillinger and his girlfriend, Diane Elrod,2 testified that they
could see the fight from the house and saw someone come up behind Keats or from on top of Keats
while he was on the ground and make a stabbing motion toward Keats. Shillinger ran out of the
house toward the fight. Keats let go of McMath, Shillinger arrived, and defendant and McMath
ran away. According to Shillinger, McMath ran away first and defendant turned around and told
Shillinger, “You can die too.” Shillinger testified that at that point, defendant stabbed him and
then fled.
There was some discrepancy whether Keats ever hit McMath with the bat. McMath
testified that although he did not ever see Keats swing the bat at him, his head starting bleeding
and Keats might have hit him with the bat. There was evidence that McMath initially told police
that he was hit with the bat three times but subsequently admitted that he did not know if he was
hit with the bat after the interviewing officer told him that his injuries did not appear consistent
with being hit by a baseball bat three times. Apparently, McMath had been told by defendant that
Keats hit McMath with the baseball bat. Neither Shillinger nor Elrod saw Keats swing the bat at
McMath.
After defendant and McMath fled from the scene of the stabbing, they were picked up in
the vehicle that Hoffman was driving. Morgan and Niner were also still in the vehicle. Morgan
testified that when defendant got into the vehicle, he said that he thought he killed Keats by
stabbing him three times. It was Morgan’s understanding that defendant was trying to stop Keats
from hurting McMath. Niner similarly testified that defendant got into the vehicle and said, “I
killed him.” According to Niner, defendant reported that he stabbed both victims and that McMath
had fallen and was being hit with a bat by Keats. Hoffman also testified that when defendant got
into the car, he said he had killed Keats. Hoffman recalled defendant specifically explaining that
he knew how to kill someone and had stabbed Keats in the lungs and kidney. Hoffman also
recalled that defendant said that he did not mean to kill Keats, that he thought Keats was going to
kill McMath, and that he was only trying to help McMath.
Defendant and McMath were eventually apprehended by the police. The victims were
taken to the hospital to be treated for their injuries. Keats had stab wounds to his back, the back
of his head, and the front of his chest. He was bleeding profusely. There was testimony that before
Keats was taken to the hospital by ambulance, his chest wound was treated at the scene with a
“chest seal,” which is a special type of bandage used to protect against the possibility of collapsed
2
Elrod referred to Shillinger as her husband but stated that the two were not legally married.
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lungs in cases of penetrating injuries to the chest cavity such has the stab wound Keats had
suffered. At the hospital, his head and back wounds were stapled or stitched closed, and
exploratory surgery was performed on his chest cavity to ensure that he did not have any injuries
to vital organs. It turned out that the penetrating wound in his chest was within approximately half
an inch of his heart and lung, and within approximately an inch and a half of his “main intestine.”
Keats was determined to be in stable but critical condition at some point, and he then was
determined to be in good condition following his surgery. Keats remained at the hospital
overnight. Shillinger had a stab wound in his shoulder. At the hospital, his wound was cleaned
before Shillinger was sent home the same night.
Following a jury trial, defendant was convicted and sentenced as previously noted. This
appeal followed. Further facts necessary to the resolution of the issues on appeal will be discussed
as necessary below.
II. JURY INSTRUCTION AND JUDICIAL BIAS
Defendant contends a curative instruction given by the trial court to strike a question asked
by defense counsel had the effect of denigrating defense counsel in front of the jury in a manner
that deprived defendant of a fair trial.
During cross-examination of Shillinger, he indicated in response to defense counsel’s
questioning that he had been staying at Keats’s house for “[m]aybe a month or two, something like
that.” Defense counsel subsequently asked Shillinger, “So, is there a reason you didn’t update
your address on the sex offender registry you moved?” The prosecution immediately objected and
the jury was excused from the courtroom. After taking a break to allow the parties to research the
issue, taking further testimony from Shillinger outside the presence of the jury about his reporting
obligations, and hearing argument from the parties, the trial court sustained the prosecution’s
objection and ruled that the question would be stricken because it implied that Shillinger was
obligated to do something that he was not required to do and the question therefore was
inappropriate and should not have been asked. The trial court instructed the jury as follows:
The last question that was asked from the defense was completely
inappropriate and it must be stricken. It implied something this witness was not
obligated to do, and it should not have been asked. It should not be discussed in
your deliberations, or in any way be considered in your rendering of a verdict.
On appeal, defendant does not claim that the trial court erred by excluding the evidence,
striking the question, or ruling that defendant’s proposed line of questioning was inadmissible.
Rather, defendant argues that the trial court’s curative instruction to the jury was so strongly
worded that it disparaged defense counsel. Defendant contends that the instruction disparaged
defense counsel by implying that defense counsel had committed some form of ethical breach or
serious misconduct and that the instruction improperly influenced the jury to defendant’s
detriment.
“The question whether judicial misconduct denied defendant a fair trial is a question of
constitutional law that this Court reviews de novo.” People v Stevens, 498 Mich 162, 168; 869
NW2d 233 (2015).
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A trial judge’s conduct deprives a party of a fair trial if the conduct pierces
the veil of judicial impartiality. A judge’s conduct pierces this veil and violates the
constitutional guarantee of a fair trial when, considering the totality of the
circumstances, it is reasonably likely that the judge’s conduct improperly
influenced the jury by creating the appearance of advocacy or partiality against a
party. In evaluating the totality of the circumstances, the reviewing court should
inquire into a variety of factors including, but not limited to, the nature of the trial
judge’s conduct, the tone and demeanor of the judge, the scope of the judicial
conduct in the context of the length and complexity of the trial and issues therein,
the extent to which the judge’s conduct was directed at one side more than the other,
and the presence of any curative instructions, either at the time of an inappropriate
occurrence or at the end of trial. [Id. at 164.]
Beginning with the nature of the trial judge’s conduct, the instruction informed the jurors
that defense counsel’s question about Shillinger’s status as sex offender was improper and that
they should not consider it in their deliberations. In doing so, the trial judge informed the jury that
the question was inappropriate and should not have been asked. “Judicial misconduct may come
in myriad forms, including belittling of counsel, inappropriate questioning of witnesses, providing
improper strategic advice to a particular side, biased commentary in front of the jury, or a variety
of other inappropriate actions.” Id. at 172-173. Here, over the objection of defense counsel, the
trial court essentially adopted the prosecution’s proposed curative instruction. “Judicial rulings,
as well as a judge’s opinions formed during the trial process, are not themselves valid grounds for
alleging bias ‘unless there is a deep-seated favoritism or antagonism such that the exercise of fair
judgment is impossible.’ ” People v Jackson, 292 Mich App 583, 598; 808 NW2d 541 (2011)
(citation omitted). “A single inappropriate act does not necessarily give the appearance of
advocacy or partiality, but a single instance of misconduct may be so egregious that it pierces the
veil of impartiality.” Stevens, 498 Mich at 171. “Comments that are critical of or hostile to counsel
and the parties are generally not sufficient to pierce the veil of impartiality.” Jackson, 292 Mich
App at 598.
The trial court’s curative instruction in this case focused on the propriety of the question
defense counsel had asked. It was not personally directed at defense counsel, and we fail to see
how the instruction belittled or directly disparaged defense counsel. Defendant’s appellate
argument relies entirely on speculation about how the instruction could have potentially been
understood to imply misconduct on the part of defense counsel, but defendant has not provided
any evidence to show that the trial court held a deep-seated antagonism toward defendant or
defense counsel. Id. The nature of the conduct does not weigh in favor of concluding that the
judge pierced the veil of impartiality.
The remaining Stevens factors also do not weigh in favor of concluding that the trial judge
pierced the veil of impartiality. It is difficult, from the textual record, to discern the trial judge’s
“tone and demeanor” when providing the curative instruction. Considering there is a presumption
of judicial impartiality, id., there seems to be no indication the trial judge was overly emotional or
spoke in an unfairly critical tone when offering the instruction. Further, “the scope of the judicial
conduct” was a single curative instruction during a seven-day trial. Stevens, 498 Mich at 164. The
trial court’s instruction was directed at the defense, but only because defense counsel asked an
improper question. Id. There was no immediate curative instruction about the trial judge’s
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instruction because none was requested. Id. However, the trial court’s final instructions included
the following instruction to the jury:
[W]hen I make a comment or given an instruction, I am not trying to influence your
vote or express a personal opinion about the case. If you believe that I have an
opinion about how you should decide this case, you must pay no attention to that
opinion. You are the only judges of the facts, and you should decide this case from
the evidence.
“Because [i]t is well established that jurors are presumed to follow their instructions, a
curative instruction will often ensure a fair trial despite minor or brief inappropriate conduct.”
Stevens, 498 Mich at 177 (quotation marks and citation omitted; alteration in original).
Based on our consideration of the record and the Stevens factors, we conclude that the veil
of judicial impartiality was not pierced in this case because under the totality of the circumstances,
it is not reasonably likely that the curative instruction at issue somehow “improperly influenced
the jury by creating the appearance of advocacy or partiality” against defendant. Id. at 164.
III. SUFFICIENCY OF THE EVIDENCE
Next, defendant challenges the sufficiency of the evidence supporting his AWIGBH
convictions.3
“We review de novo a challenge on appeal to the sufficiency of the evidence.” People v
Henry, 315 Mich App 130, 135; 889 NW2d 1 (2016) (quotation marks and citation omitted). “To
determine whether the prosecutor has presented sufficient evidence to sustain a conviction, we
review the evidence in the light most favorable to the prosecutor and determine whether a rational
trier of fact could find the defendant guilty beyond a reasonable doubt.” People v Smith-Anthony,
494 Mich 669, 676; 837 NW2d 415 (2013) (quotation marks and citation omitted). “The standard
of review is deferential: a reviewing court is required to draw all reasonable inferences and make
credibility choices in support of the jury verdict.” People v Bailey, 310 Mich App 703, 713; 873
NW2d 855 (2015) (quotation marks and citation omitted).
3
Although defendant states in his appellate brief that the “verdict was not supported by the weight
of the evidence,” defendant only cites legal rules related to challenging the sufficiency of the
evidence. Defendant does not cite any legal authority related to asserting an argument that the
verdict was against the great weight of the evidence. Accordingly, we understand defendant’s
argument to be solely one challenging the sufficiency of the evidence. Any attempt to raise a
great-weight argument has been abandoned. See People v Kelly, 231 Mich App 627, 640-641; 588
NW2d 480 (1998) (“An appellant may not merely announce his position and leave it to this Court
to discover and rationalize the basis for his claims, nor may he give only cursory treatment with
little or no citation of supporting authority.”). Defendant does not challenge the sufficiency of the
evidence regarding his other convictions.
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On appeal, defendant argues that his AWIGBH convictions must be reversed because the
evidence at trial established that he acted in lawful defense of McMath to protect McMath’s life.
Our Supreme Court has explained that the common-law defense-of-others doctrine is
similar to “its more popular sibling, self-defense.” People v Leffew, 508 Mich 625, 638; 975 NW2d
896 (2022). “Under the defense-of-others doctrine, [o]ne may use force in defense of another
when he or she reasonably believes the other is in immediate danger of harm and force is necessary
to prevent the harm; deadly force is permissible to repel an attack which reasonably appears
deadly.” Id. (quotation marks and citation omitted). “Traditionally, the ‘defense of others’ concept
applied solely to those persons with whom the defendant had a special relationship, such as a wife
or brother.” People v Kurr, 253 Mich App 317, 321; 654 NW2d 651 (2002); see also Leffew, 508
Mich at 638-639. However, the defense-of-others doctrine has evolved over time to extend to
strangers, drawing no distinction in its application between defense of relatives and defense of
strangers. Leffew, 508 Mich at 638-639; Kurr, 253 Mich App at 321.
The defense of others constitutes an affirmative defense that may be raised to excuse or
justify the commission of otherwise criminal acts, such as the assaultive conduct at issue in this
case. See Leffew, 508 Mich at 638-643 (explaining that defense of others may be raised as an
affirmative defense to excuse both assaultive and nonassaultive conduct); see also Kurr, 253 Mich
App at 321 (“Case law in Michigan also allows a person to use deadly force in defense of
another.”). “ ‘Once a defendant satisfies the initial burden of producing some evidence from which
a jury could conclude that the elements necessary to establish a prima facie defense of [defense of
others] exist, the prosecution bears the burden of disproving the affirmative defense of [defense of
others] beyond a reasonable doubt.’ ” Leffew, 508 Mich at 644, quoting People v Dupree, 486
Mich 693, 712; 788 NW2d 399 (2010) (alterations in original).
Here, defendant argues that his actions were necessary to defend McMath because Keats
was assaulting McMath with a baseball bat. However, there was testimony at trial that Keats had
dropped the baseball bat and was not using it to assault McMath. There was further testimony that
there were no weapons involved while McMath and Keats were wrestling with each other.
Additional testimony was introduced that defendant, who was armed with a knife, came up behind
Keats and stabbed him, after which defendant also stabbed Shillinger.
The defense-of-others affirmative defense is ultimately predicated on the concept that a
person is authorized to use only that degree of force reasonably necessary to stop the attack on the
third person. See Leffew, 508 Mich at 638 (“Under the defense-of-others doctrine, [o]ne may use
force in defense of another when he or she reasonably believes the other is in immediate danger of
harm and force is necessary to prevent the harm; deadly force is permissible to repel an attack
which reasonably appears deadly.”) (quotation marks and citation omitted; alteration in original;
emphasis added); 2 LaFave, Substantive Criminal Law (3d ed), § 10.5(b), pp 223-224 (“As with
self-defense, so too with the defense of another, one is not justified in using force to protect the
other unless he reasonably believes that the other is in immediate danger of unlawful bodily harm
and that force is necessary to prevent that harm; and even when he entertains these reasonable
beliefs, he may not use more force than he reasonably believes necessary to relieve the risk of
harm.”) (emphasis added); cf also People v Riddle, 467 Mich 116, 127; 649 NW2d 30 (2002)
(“[T]he touchstone of any claim of self-defense . . . is necessity.”); People v Ogilvie, 341 Mich
App 28, 40; 989 NW2d 250 (2022) (“[U]nderpinning self-defense doctrine is the longstanding
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principle that a person should use no more force than reasonably appears necessary to repel a
threat.”); People v Guajardo, 300 Mich App 26, 35; 832 NW2d 409 (2013) (“In general, a
defendant does not act in justifiable self-defense when he or she uses excessive force or when the
defendant is the initial aggressor.” ).
Here, the jury could have reasonably concluded from the record evidence that Keats was
not using the baseball bat or any other deadly weapon against McMath and that defendant’s actions
of stabbing the victims with a knife were not reasonably necessary to protect McMath such that
defendant’s acts constituted excessive force that exceeded the scope of permissible acts defendant
could have reasonably taken in defense of McMath. Leffew, 508 Mich at 638; LaFave, § 10.5(b);
Riddle, 467 Mich at 127; Ogilvie, 341 Mich App at 40; Guajardo, 300 Mich App at 35. Defendant
essentially asks this Court on appeal substitute itself for the jury and engage in a revaluation of the
relative strength and weight of the evidence. However, that is contrary to the proper role of
appellate review with respect to a challenge to the sufficiency of the evidence. Bailey, 310 Mich
App at 713.
Juries, not appellate courts, see and hear witnesses and are in a much better
position to decide the weight and credibility to be given to their testimony. Where
sufficient evidence exists, which may be believed by the jury, to sustain a verdict
of guilty beyond a reasonable doubt, the decision of the jury should not be disturbed
by an appellate court. [Id. at 714 (quotation marks and citation omitted).]
Viewing the evidence in a light most favorable to the prosecution as we must, Smith-
Anthony, 494 Mich at 676, defendant has not demonstrated on appeal that the jury’s verdict was
not supported by sufficient evidence. Defendant’s convictions are therefore affirmed.4
IV. SENTENCING
Defendant additionally challenges the trial court’s scoring of two offense variables (OVs)
in determining his recommended minimum sentence guidelines range.
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.
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
4
We note that defendant’s appellate argument does not involve the Self-Defense Act (SDA), MCL
780.971 et seq. “The SDA codified and expanded the circumstances in which a person may use
deadly force in self-defense or in defense of another person without having the duty to retreat.”
Leffew, 508 Mich at 641 (quotation marks and citation omitted). “But aside from limiting one’s
duty to retreat, the statute did not modify or abrogate the common-law defenses of self-defense or
defense of others.” Id. Defendant has not raised an argument on appeal involving the statutory
duty to retreat and instead relies on the common-law defense-of-others doctrine. We further note
that defendant does not otherwise challenge the elements of his AWIGBH convictions; indeed, an
“affirmative defense admits the crime but seeks to excuse or justify its commission,” and “[i]t does
not negate specific elements of the crime.” Dupree, 486 Mich at 704 n 11.
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statutory interpretation, which an appellate court reviews de novo. [People v
Rodriguez, 327 Mich App 573, 576; 935 NW2d 51 (2019) (quotation marks and
citation omitted).]
A. OV 3
Defendant argues that the trial court erroneously assessed 25 points for OV 3 for causing a
life threatening or permanent incapacitating injury to the victim because “[t]his level of injury was
never proven at trial, and it was improper for the lower court to apply it.”
OV 3 is contained in MCL 777.33 and is scored based on a “physical injury to a victim.”
MCL 777.33(1). Under the statute, 25 points are assessed if “[l]ife threatening or permanent
incapacitating injury occurred to a victim.” MCL 777.33(1)(c). Ten points are assessed if
“[b]odily injury requiring medical treatment occurred to a victim.” MCL 777.33(1)(d). “In scoring
OV 3, the focus is not on the defendant’s actions; ‘rather, OV 3 assesses whether a victim’s injuries
were life-threatening.’ ” People v Chaney, 327 Mich App 586, 588; 935 NW2d 66 (2019), quoting
People v Rosa, 322 Mich App 726, 746; 913 NW2d 392 (2018).
In Chaney, after observing that the term “life-threating” is not statutorily defined for
purposes of MCL 777.33, this Court consulted a dictionary to define the term “life-threatening” to
mean “capable of causing death: potentially fatal.” Chaney, 327 Mich App at 589 (quotation marks
and citations omitted). The child-abuse victim in that case, who was three years old, suffered
severe burns to the lower legs and feet from hot bath water while in the defendant’s care. Id. at
588. The victim was hospitalized for “several weeks” to treat the burns. Id. This Court held that
the trial court clearly erred by finding that the victim suffered a “life-threatening” injury for
purposes of MCL 777.33 and assessing 25 points. Chaney, 327 Mich App at 590. We reasoned
as follows:
After reviewing the medical records, we conclude that the trial court clearly
erred by finding that DM suffered a life-threatening injury. The medical records
do not indicate that DM’s injuries were potentially fatal. Nor did Dr. Donoghue
testify to that effect. While DM suffered a serious injury requiring a lengthy
hospitalization, no heroic measures were needed, and there is no suggestion in the
records that DM’s life was ever in danger. Her burn wounds required multiple
procedures, but the medical records show that there were no complications and that
she was in stable condition throughout her hospital stay. If the fact that the DM’s
injuries required significant and ongoing medical treatment by itself established a
life-threatening injury, MCL 777.33(1)(d) (10 points for bodily injury requiring
medical treatment) would be rendered nugatory. Instead, we must give effect to the
ordinary meaning of “life-threatening” by requiring some evidence indicating that
the injuries were, in normal course, potentially fatal. In the absence of evidence
suggesting that DM’s life was placed at risk or more general evidence establishing
that the injury suffered was by nature life-threatening, the trial court’s finding was
clearly erroneous, i.e., not supported by a preponderance of the evidence. [Id. at
590-591 (citation omitted).]
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Here, there was evidence at trial that defendant stabbed Keats three times and that Keats
incurred stab wounds to his head, chest, and back. There was further evidence that Keats was
bleeding profusely and thought he was going to die. Keats was treated at the scene to prevent
against the possibility of his lung collapsing, he was taken to the hospital by ambulance, and his
treatment included exploratory surgery of his chest cavity to ensure that there were no additional
life-threatening wounds to his internal organs. The stab wounds missed his heart and lung by half
an inch and his intestines by less than two inches. According to the testimony of police officer
Alana Jannette, Keats was reported to be in “stable but critical condition” at the hospital.
Additionally, the PSIR indicates that Keats “was listed in stable critical condition and was taken
in for emergency surgery.” Keats was hospitalized overnight.
Furthermore, Keats’s victim impact statement in the PSIR provides in relevant part:
Mr. Keats explained he was stabbed three times. Once in the head, once in the
chest, and once in the side of his back. He received 15 staples on the top of his
head and had stitches inside and outside of his rib cage and back. He had
emergency exploratory surgery to assess the extent of the damage to his rib cage
area. Mr. Keats was in the hospital for 24 hours. He explained the hospital wanted
him to remain there for a week, but he left because he does not have health
insurance. Once he arrived home, he was on bed rest for about a month before he
had to return to work. He told this writer he was in pain for a long time and
sometimes still has pain. However, he has now physically recovered except for the
permanent scars.
“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.” People v McChester, 310 Mich App 354, 358; 873 NW2d 646 (2015). Under the
circumstances present in the instant case, we conclude that the trial court did not clearly err by
finding that Keats suffered a life-threatening injury for purposes of OV 3. See id. (“Clear error is
present when the reviewing court is left with a definite and firm conviction that an error occurred.”)
(quotation marks and citation omitted). We affirm the trial court’s assessment of 25 points for OV
3.
B. OV 4
Finally, defendant argues that the trial court erred by assessing 10 points for OV 4 based
on the occurrence of a psychological injury to a victim requiring treatment.
Under MCL 777.34(1)(a), 10 points are assessed if “[s]erious psychological injury
requiring professional treatment occurred to a victim.” MCL 777.34(2) further provides as
follows: “Score 10 points if the serious psychological injury may require professional treatment.
In making this determination, the fact that treatment has not been sought is not conclusive.” In
People v White, 501 Mich 160, 162; 905 NW2d 228 (2017), our Supreme Court held:
We conclude that (a) points for OV 4 may not be assessed solely on the basis of a
trial court’s conclusion that a “serious psychological injury” would normally occur
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as a result of the crime perpetrated against the victim and (b) evidence of fear while
a crime is being committed, by itself, is insufficient to assess points for OV 4.
Here, Keats’s victim impact statement in the PSIR states in relevant part as follows:
Regarding his mental health, Mr. Keats explained he had and still has
increased anxiety due to this offense. He explained he is on edge in his home and
is easily startled if he hears a noise. He told this writer he feels he has Post
Traumatic Stress Disorder, but he has not sought professional treatment.
The trial court explained in assessing 10 points for OV 4 that it relied on Keats’s impact
statement but recognized that Keats’s “self diagnos[is]” of Post Traumatic Stress Disorder was not
an official diagnosis. The trial court instead gave weight to Keats’s combined statements that he
was on edge in his home, easily startled by noises, and had increased anxiety since the offense.
On appeal, defendant argues that the trial court should have assessed 0 points because Keats
willingly participated in the fight and never sought psychological treatment. Defendant does not
cite any authority for the first argument and has therefore abandoned it. Kelly, 231 Mich App at
640-641. The second argument is contrary to the plain language of the statute; defendant cannot
prevail merely by relying on the fact that Keats has not sought professional treatment at this time
because “the fact that treatment has not been sought is not conclusive.” MCL 777.34(2).
Affirmed.
/s/ Thomas C. Cameron
/s/ Stephen L. Borrello
/s/ Colleen A. O’Brien
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