149490_15_01

PEOPLE v WHITE
Docket No. 149490. Decided December 26, 2017.
Anthony T. White pleaded guilty in the Berrien Circuit Court to charges of armed
robbery, MCL 750.529, and breaking and entering, MCL 750.110, in connection with the
robbery of a gas station during which he held a gun to the cashier’s head. The court, Dennis M.
Wiley, J., sentenced defendant to 108 to 480 months in prison for armed robbery and 23 to 120
months in prison for breaking and entering. The court had assessed defendant 10 points for
Offense Variable (OV) 4, MCL 777.34, to reflect its finding that serious psychological injury
requiring professional treatment occurred to a victim. This finding was based solely on the facts
that defendant had held a gun to the cashier’s head and that she heard a trigger being pulled,
which the court concluded was sufficient to support its scoring of OV 4 despite the lack of
evidence that the cashier had suffered psychological distress as a result. The Court of Appeals
denied defendant’s delayed application for leave to appeal, and defendant sought leave to appeal
in the Supreme Court.
In a unanimous per curiam opinion, the Supreme Court, in lieu of granting leave to
appeal and without holding oral argument, held:
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 as a result of the crime perpetrated against the
victim, and evidence of fear while a crime is being committed, by itself, is insufficient to assess
points for OV 4. Accordingly, the trial court erred by assessing 10 points for OV 4. Because the
subtraction of 10 points lowered defendant’s guidelines range for his guilty plea to armed
robbery from a minimum of 81 to 135 months in prison to a minimum of 51 to 85 months in
prison, the judgment of sentence was vacated and the case was remanded for resentencing. To
the extent that People v Apgar, 264 Mich App 321 (2004), held that a victim’s fear during a
crime was sufficient to assess 10 points for OV 4 without any other showing of psychological
harm, it was overruled.
1. MCL 777.34(1)(a) provides that OV 4 is correctly scored at 10 points when a serious
psychological injury requiring professional treatment occurred to a victim. The trial court here
assessed 10 points on the sole basis of its conclusion that a person would typically suffer a
psychological injury when confronted with the instant crime. However, to support a score of 10
points, MCL 777.34 requires that serious psychological injury occurred to a victim, not that a
Michigan Supreme Court
Lansing, Michigan
Syllabus Chief Justice:
Stephen J. Markman
Justices:
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
Kurtis T. Wilder
Elizabeth T. Clement
This syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
Reporter of Decisions:
Kathryn L. Loomis

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reasonable person in that situation would have suffered a serious psychological injury.
Accordingly, the trial court erred in scoring OV 4.
2. Defendant’s admission during his plea that the victim was afraid that he was going to
shoot her could have supported scoring OV 4 at 10 points under Apgar, which was often cited for
the proposition that a victim’s expression of fearfulness during a crime was sufficient to assess
10 points for OV 4. However, the fact that a victim is afraid at the time of the incident, by itself,
does not give rise to a serious psychological injury requiring professional treatment. Therefore,
to the extent that Apgar held that a victim’s fear during a crime, by itself and without any other
showing of psychological harm, was sufficient to assess 10 points for OV 4, it was overruled,
and defendant’s admission was insufficient to sustain the trial court’s scoring.
Judgment of sentence vacated; case remanded to the circuit court for further proceedings.
Justice CLEMENT took no part in the decision of this case.
©2017 State of Michigan

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FILED December 26, 2017
S T A T E O F M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 149490
ANTHONY TYJUS WHITE,
Defendant-Appellant.
BEFORE THE ENTIRE BENCH (except CLEMENT, J.)
PER CURIAM.
The issue in this case is whether the trial court erred by assessing 10 points for
Offense Variable (OV) 4 (“serious psychological injury” to a victim occurred) when the
only evidence to support this scoring was the victim’s fear while the crime was being
committed. 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
as a result of the crime perpetrated against the victim and (b) evidence of fear while a
Michigan Supreme Court
Lansing, Michigan
OPINION Chief Justice:
Stephen J. Markman
Justices:
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
Kurtis T. Wilder
Elizabeth T. Clement

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2
crime is being committed, by itself, is insufficient to assess points for OV 4.
Accordingly, the trial court erred by assessing 10 points for OV 4. Because the
subtraction of 10 points lowers defendant’s guidelines range for his guilty plea to armed
robbery, MCL 750.529, from a minimum of 81 to 135 months in prison to a minimum of
51 to 85 months in prison, we vacate the sentence of the trial court and remand for
resentencing. People v Francisco, 474 Mich 82; 711 NW2d 44 (2006).1
Defendant and an accomplice entered a gas station in Berrien County with guns
drawn. Defendant held a gun to the cashier’s head and demanded money while his
accomplice searched the store. The cashier gave them money, and they ordered her to lie
down until they left. The victim told police that she thought she heard a trigger being
pulled, but neither of the guns went off. During his plea colloquy, defendant agreed that
the victim “was afraid that [defendant] was going to shoot her.” At sentencing, the trial
court rejected defendant’s challenge to the scoring of OV 4 at 10 points, reasoning:
Clearly, any person who has been held at gunpoint has some
psychological distress, and, clearly, in a situation where they believe their
life may be ending. I would suggest when they hear what they believe to be
a trigger pulled, that that would heighten their psychological distress to
somewhat a greater—much greater degree. While there’s nothing, per se,
indicating this—that there—that she actually suffered psychological
distress, there’s nothing to indicate that she was fine, either. And, the Court
believes it is reasonable to draw a conclusion that as a result of being held
at gunpoint with a trigger being pulled, that she suffered some type of
psychological injury that might require some type of psychological
counseling at some time in the—in the future.
1 Defendant also pleaded guilty to one count of breaking and entering, MCL 750.110, and
the trial court sentenced defendant to 23 to 120 months in prison on that charge.

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3
There was no victim impact statement, preliminary examination, or victim statement in
evidence at sentencing. As calculated by the court, defendant’s minimum sentence
guidelines range was 81 to 135 months, and the trial court sentenced him to 108 to 480
months in prison. The Court of Appeals denied defendant’s delayed application for leave
to appeal.
OV 4 is correctly scored at 10 points when a “serious psychological injury
requiring professional treatment occurred to a victim.” MCL 777.34(1)(a). The trial
court here assessed 10 points on the sole basis of its conclusion that people would
typically suffer a psychological injury when confronted with the instant crime. However,
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,’ ” not that a reasonable person in that situation would have
suffered a “serious psychological injury.” People v Lockett, 295 Mich App 165, 183; 814
NW2d 295 (2012). Accordingly, the trial court erred in scoring OV 4.
However, our review of the trial court’s scoring of OV 4 is not limited to the
reasoning provided by the trial court. Klooster v City of Charlevoix, 488 Mich 289, 310;
795 NW2d 578 (2011). Defendant’s admission during his plea that the victim “was
afraid that [defendant] was going to shoot her” may alternatively support scoring OV 4 at
10 points on the basis of People v Apgar, 264 Mich App 321; 690 NW2d 312 (2004). In
Apgar, the Court of Appeals held that “[b]ecause the victim testified that she was fearful
during the encounter with defendant, we find that the evidence presented was sufficient to
support the trial court’s decision to score OV 4 at ten points.” Id. at 329. Apgar is often
cited for the proposition that a victim’s “expression of fearfulness” during a crime is

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4
sufficient to assess 10 points for OV 4. See, e.g., People v Davenport (After Remand),
286 Mich App 191, 200; 779 NW2d 257 (2009). However, a recent Court of Appeals
decision rejected that reasoning, concluding that “the fact that [the victim] was afraid at
the time of the incident, by itself, does not give rise to a serious psychological injury
requiring professional treatment.” People v Beach, unpublished per curiam opinion of the
Court of Appeals, issued April 18, 2017 (Docket No. 330140), p 6. We agree with the
Beach panel and overrule Apgar to the extent it held that a victim’s fear during a crime,
by itself and without any other showing of psychological harm, is sufficient to assess 10
points for OV 4.2 While crime victims are often obviously, and understandably,
frightened when a crime is being perpetrated, this fear does not necessarily result in a
“serious psychological injury” and, as addressed earlier, a court cannot merely assume
that a victim has suffered a “serious psychological injury” solely because of the
characteristics of the crime. Accordingly, defendant’s admission is insufficient to sustain
the trial court’s scoring.3
On remand, the trial court shall consider defendant’s issue regarding the
assessment of court costs and shall not impose a fine for the defendant’s conviction of
2 See also Davenport, 286 Mich App at 200; People v Earl, 297 Mich App 104, 109; 822
NW2d 271 (2012); People v Williams, 298 Mich App 121, 124; 825 NW2d 671 (2012).
3 Of course, a victim’s fear while a crime is being committed may be highly relevant to
determining whether he or she suffered a “serious psychological injury [that] may require
professional treatment” and thus may be considered together with other facts in
determining how to score OV 4. We merely hold that, absent other evidence of
psychological harm, fear felt during the crime is insufficient to assess points for this
variable.

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armed robbery. Because the statute under which the sentence was imposed, MCL
750.529, does not specifically provide for the imposition of a fine, one may not be
imposed. See People v Cunningham, 496 Mich 145, 157; 852 NW2d 118 (2014); MCL
769.1k(1)(b)(i).
Stephen J. Markman
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
Kurtis T. Wilder
CLEMENT, J., took no part in the decision of this case.

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