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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED August 23, 2016

v No. 327714 Calhoun Circuit Court JAMES SCOTT LAWSON, LC No. 2014-002486-FH

Defendant-Appellant.

Before: O WENS , P.J., and S AWYER and S HAPIRO , JJ.

P ER C URIAM

.
Defendant, James Scott Lawson, was convicted by a jury of seco nd-degree criminal sexual conduct (victim under 13), MCL 750.520c(1)(a) (CSC II); and assault with intent to commit CSC II, MCL 750.520g(2) (victim under 13). Defendant wa s sentenced to 365 days in jail with credit for 419 days served and 60 months’ probation f or his CSC II conviction as well as a concurrent term of 330 days in jail with credit for 419 days served for his assault with intent to commit CSC II. Defendant now appeals as of right. We affirm.

Defendant first argues that the trial court erred by giving su pplemental instructions to the jury and denying defendant’s request for a mistrial when the ju ry indicated that it was unable to reach a verdict. Defendant preserved this issue by requesting a mistrial in the trial court. A trial court’s decision to deny a motion for a mistrial is reviewed fo r an abuse of discretion. People v
Dennis , 464 Mich 567, 572; 628 NW2d 502 (2001). For there to be erro r requiring reversal, “[t]he trial court’s ruling must be ‘so grossly in error as to deprive a defendant of a fair trial or to amount to a miscarriage of justice.’ ” People v Gonzales , 193 Mich App 263, 265; 483 NW2d 458 (1992) (citation omitted). “A mistrial should be granted o nly where the error complained of is so egregious that the prejud icial effect can be removed in n o other way.” Id . at 266.

When a jury indicates that it is unable to reach a verdict, th e trial court may permissibly give supplemental jury instruct ions and direct the jury to cont inue deliberations. See, e.g., People v Hardin , 421 Mich 296, 303-306, 316, 320; 365 NW2d 101 (1984); People v Sullivan

, 392 Mich 324, 327-329, 333-336, 341-342; 220 NW2d 441 (1974). A proper supplemental
instruction facilitates continue d deliberation while avoiding c oercion. Sullivan , 392 Mich at 334. However, “[i]f the charge has the effect of forcing a juror to surrender an honest conviction, it is coercive and constitutes reversible error.” Id . In other words, “[t]he optimum instruction will generate discussion directed towar ds the resolution of the case but will avoid forcing a decision.”-2- Id . To this end, the Sullivan Court adopted the ABA standard jury instruction 5.4 for use wit h deadlocked juries and also held that “[a]ny substantial departu re [from this instruction] shall be grounds for reversible error.” Sullivan , 392 Mich at 327-329, 335, 341-342. The Michigan Model Criminal Jury Instructions incorporated the ABA standard instruction 5.4 in the deadlocked jury instruction found in M Crim JI 3.12. See People v Pollick , 448 Mich 376, 382 n 12; 531 NW2d 159 (1995).

The test for whether a given in struction constitutes a substan tial departure from this instruction, such that it is reve rsible error, is whether the i nstruction has “an undue tendency of
coercion— e.g. , could the instruct ion given cause a jur or to abandon his cons cientious dissent and defer to the majority solely for the sake of reaching agreement ?” Hardin , 421 Mich at 314. The
instruction “must be examined in the factual context in which i t is given” to determine whether
there was a coercive e ffect on the jury. Id . at 315. Additional language will rarely be considered a substantial departure if it “c ontains no pressure, threats, e mbarrassing assertions, or other wording that would cause this Court to feel that it constituted coercion.” Id . The evaluation of an instruction’s potential coercive effect should also consider “whether the court required, or threatened to require, the jury to deliberate for an unreasonab le length of time or for
unreasonable intervals.” Id . at 316. Additionally, an instruc tion is coercive if it direc ts the jury to reach a unanimous verdict “as part of its civic duty” and “c ontains the message that the failure to reach a verdict constitutes a failure of purpose.” Id ., citing People v Goldsmith , 411 Mich 555, 561; 309 NW2d 182 (1981).

The Hardin Court found that a trial court’s additional comments beyond th e language of ABA standard jury instruction 5.4 were not a substantial departure because the “comments were directed toward generating disc ussion and fostering resolution of the case and avoided forcing a
decision.” Hardin , 421 Mich at 320. In Hardin , after the jury indicated that it could not reach a verdict, the trial court gave supplemental instructions to the jury on three separate occasions, with the jury returning to its deliberations during the time be tween each instruction. Id . at 303- 307. After the third instruction, the jury was sent home for the evening. Id . at 306. The jury returned the following morning and reached a verdict at 11:50 a .m. Id

. The trial court’s first instruction “substantially parall el[ed] ABA standard jury instr uction 5.4” but also included
additional comments such as “And I am sure with consideration a nd thought, that you will be able to arrive at a verdict” and “All of the facts have been pr esented to you.” Id . at 317. The
trial court’s second and third in structions included statements such as “I feel you must give further consideration to this before I can accept a verdict,” “ please see if you can’t reach a verdict,” and “Perhaps after a night’s sleep and breakfast in t he morning, you will be able to
come back and reach a verdict.” Id . at 318-319.

The Michigan Supreme Court in Hardin concluded that although the trial court’s statements departed from the language of ABA standard jury inst ruction 5.4, the departure was not “substantial” because the statements were not coercive, did not “require[] or threaten[] to require the jury to deliberate for an unreasonable length of ti me or for unreasonable intervals,” and contained “no undue pressure, threats, embarrassing asserti ons, or other wording that would tend to force a decision or cause a juror to abandon his consci entious dissent and defer to the majority.” Id . at 317-318, 320-321. The Court also found that even if the j ury made
unwarranted inferences from the trial court’s expression of con fidence that the jury could reach a verdict, those inferences were m itigated by the instructions th at followed, which were in-3- compliance with the ABA standard. Id

. at 318. The Court stated that “[t]he overall effect of the
instruction in this case was not to coerce the jury, but indeed seemed to stress the need to engage in full-fledged deliberation” and held that the trial court’s i nstructions did not constitute
reversible error. Id . at 314, 320-321.

Here, the trial court did not abuse its discretion by denying defendant’s request for a mistrial and providing the jury w ith the deadlocked jury instru ction. The trial c ourt received one note from the jury indicating that it was unable to determine a verdict, heard arguments from counsel, decided to send the jury home for the weekend with del iberations to resume on Monday morning, and gave the deadlocked jury instruction to the jury o n Monday morning before the jury resumed its deliberations. The trial court’s supplemental instruction was virtually identical to M Crim JI 3.12 in all respects , with the exception of the fo llowing additional language:

I cannot, of course, give you a ny assistance in finding the fac ts or finding who to believe or what weight to give to testimony. Those kinds of th ings are entirely your duty. But I can clarify the instructions if those are con fusing you and I’m happy to do that.

However, this additional language is merely a reiteration of th e instructions that the trial court previously gave to the jury at the end of trial regarding the j ury’s role. There is no inference of coercion to be drawn from repeat ing a prior jury instruction in the context of providing a deadlocked jury with supplem ental instructions. See Hardin , 421 Mich at 317 (“The supplemental instruction concerning penalty was verbatim of tha t given to the jury prior to
deliberations. We do not infer from that instruction that the jurors ‘should just find the defendant guilty and the court would worry about the penalty.’ ”).

Furthermore, although the trial court in the instant case pref aced its deadlocked jury instruction with a recognition of the difficulty of the case, the eight hours that the jury had already spent deliberating, and the statement that the court wa s “not prepared at this point to find . . . [that] every reasonable effort has been made to reach agr eement,” none of these additional comments were coercive. The trial court did not require or thr eaten to require the jury to deliberate for an unreasonable length of time or for unreasonab le intervals, and its comments contained “no undue pressure, threats, embarrassing assertions, or other wording that would tend to force a decision or cause a juror to abandon his conscientio us dissent and defer to the majority.” Hardin , 421 Mich at 317-318, 320-321. Neither did the trial court im ply that the jury would fail in its purpose if it was unable to reach a unanimous verdict. Goldsmith , 411 Mich at 561. Even if a juror could have understood the trial court’s i nitial comments as slightly coercive, such a perception was cured by the trial court’s subsequent ins truction that “none of you should give up your honest beliefs about the weight or affect [sic] of the evidence only because of what your fellow jurors think or only for the sake of reaching agree ment,” which comes directly from M Crim JI 3.12. See Hardin , 421 Mich at 318; Sullivan , 392 Mich at 335; M Crim JI 3.12. Considering the factual circumst ances of the instant case, the trial court’s additional language did not constitute a substantial departure and was not coercive. Hardin , 421 Mich at 314-315. The trial court’s instructions and comments were proper because the y served to “generate discussion directed towards the resolution of the case” without “forcing a decision.” See Sullivan , 392 Mich at 334. Thus, the trial cour t did not abuse its discretion because its decision to give the-4- deadlocked jury instruction and deny defendant’s request for a mistrial did not deprive defendant of a fair trial. See Dennis , 464 Mich at 572; Gonzales , 193 Mich App at 265-266.

Next, defendant argues that he was improperly assessed 10 poin ts for OV 4 because there was no evidence presented at trial or at sentencing that demons trated that the victim suffered serious psychological injury tha t may require professional trea tment. Defendant preserved this issue by objecting at sentencing to the scoring of OV 4 on the same grounds. See People v
Ackah-Essien , 311 Mich App 13, 35-36; 874 NW2d 172 (2015). “Under the sent encing guidelines, the circuit court’s factual determinations are revi ewed for clear error and must be supported by a preponderance of the evidence. Whether the fact s, 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 interpr etation, which an appellate cour t reviews de novo.” People v Hardy , 494 Mich 430, 438; 835 NW2d 340 (2013) (citation omitted).

It is proper to assess 10 points when the victim’s “serious ps ychological injury may require professional tr eatment.” MCL 777.34(2); People v Lockett , 295 Mich App 165, 182-183; 814 NW2d 295 (2012). It is not necessary for the court to find that the victim actually received professional treatment. People v Davenport (After Remand) , 286 Mich App 191, 200; 779 NW2d 257 (2009). There must be some evidence on the record of psychological inju ry to justify assessing 10 points. Lockett , 295 Mich App at 183. This Court has found a 10-point score t o be sufficiently justified by a victim’s testimony that she was fea rful during a sexual assault. People v Apgar , 264 Mich App 321, 324, 329; 690 NW2 d 312 (2004). This Court has also found that 10 points were properly assessed for OV 4 where “at sentencing, th e prosecutor submitted a receipt for counseling services and he inf ormed the court that, two day s before sentencing, the victim ‘began another series of counselings’ with Catholic Human Servi ces.” Davenport , 286 Mich App at 200.

Here, the evidence on the record of the victim’s psychological injury supported the assessment of 10 points for OV 4. The victim’s mother testifie d at trial that the victim discussed
the sexual assault with her the rapist, and the prosecutor repor ted that she had been informed that the victim continued with her counseling as a result of the sex ual assault. While the statute does not require that the victim sought treatment, the fact that the victim continued with professional psychological treatment as a result of the assault supports ass essing 10 points for OV 4. See Davenport , 286 Mich App at 200. Furthermore, the victim testified at tr ial that she did not get up to tell anyone about the assault immediately after it occurr ed because she felt “nervous” and that she felt “nervous and scared” the next day when she wrote the letter to the victim’s mother describing the incident. The victim’s testimony also supports a finding of psychological injury that supports assessing 10 points for OV 4. See Apgar , 264 Mich App at 329. Therefore, the trial court properly ass essed 10 points for OV 4.

Affirmed.

/s/ Donald S. Owens /s/ David H. Sawyer /s/ Douglas B. Shapiro