People v. Rodriguez, 338914

• Citation: 935 N.W.2d 51,327 Mich.App. 573
• Decision Date: 18 April 2019
• Docket Number: No. 338914,338914
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ricardo RODRIGUEZ, Jr., Defendant-Appellant.
• Court: Court of Appeal of Michigan (US)

327 Mich.App. 573

935 N.W.2d 51

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.Ricardo RODRIGUEZ, Jr., Defendant-Appellant.

No. 338914

Court of Appeals of Michigan.

Submitted March 12, 2019, at Detroit.

Decided April 18, 2019, at 9:00 a.m.

Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, Jessica R. Cooper, Prosecuting Attorney, Thomas R. Grden, Appellate Division Chief, and Matthew A. Fillmore, Assistant Prosecuting Attorney, for the people.

F. Mark Hugger, Ann Arbor, for Ricardo Rodriguez, Jr.

Before: Murray, C.J., and Gadola and Tukel, JJ.

Murray, C.J. Defendant appeals as of right his jury-trial convictions for possession of less than 25 grams of cocaine, MCL 333.7403(2)(a)(v) ; possession of marijuana, MCL 333.7403(2)(d) ; and unarmed robbery, MCL 750.530. Defendant was sentenced as a fourth-offense habitual offender, MCL 769.12, to 2 to 15 years’ imprisonment for the possession-of-less-than-25-grams-of-cocaine conviction; to 249 days, time served,¹ for the possession-of-marijuana conviction; and to 8 to 20 years’ imprisonment for the unarmed-robbery conviction. We affirm defendant’s convictions, vacate his sentence for unarmed robbery, and remand for resentencing.

This case arises out of the unarmed robbery of Adrian Valentin. Valentin was inside Arnulfo Rojas’s truck that was parked in front of Rojas’s apartment. Codefendant Tonya Tique-Diaz approached the truck and attempted to break the truck’s windows with a tire iron. After she was unsuccessful, defendant took the tire iron from Tique-Diaz and broke three of the truck’s windows. Defendant then demanded that Valentin give him everything he had or else defendant would take out his knife and stab Valentin. Valentin threw defendant $200 and his bracelet before defendant left.

Defendant’s appeal challenges his sentences, as well as the trial court’s conclusion that he provided police with consent to search the apartment he shared with Tique-Diaz. We now turn to those challenges.

I. OFFENSE VARIABLES

With respect to sentencing, defendant argues that the trial court erred because Offense Variables (OVs) 2, 7, 9, and 12 should all be assessed zero points. We agree with respect to OVs 7 and 12, but conclude that no errors were made with respect to OVs 2 and 9.

We first recognize the always important standards of review. "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 statutory interpretation, which an appellate court reviews de novo." People v. Hardy , 494 Mich. 430, 438, 835 N.W.2d 340 (2013) (citations omitted).

A. OV 2

Defendant argues that OV 2 should be assessed zero points, instead of one point, because MCL 777.32 requires that a defendant possess or use a potentially lethal weapon, and here, there was no evidence that defendant possessed or used a knife. Defendant is correct that there was no evidence he used or possessed a knife. But there was evidence he possessed and used a tire iron during the robbery, and that clearly suffices for the scoring of one point under OV 2.

" MCL 777.32 scores the ‘lethal potential of the weapon possessed or used.’ " People v. Hutcheson , 308 Mich. App. 10, 16, 865 N.W.2d 44 (2014), quoting MCL 777.32(1). "If ‘[t]he offender possessed or used any other potentially lethal weapon’ ... besides a harmful biological substance or device, a harmful chemical substance or device, an incendiary or explosive device, a fully automatic weapon, a firearm, or a cutting or stabbing weapon, one point should be assessed." Hutcheson , 308 Mich. App. at 16, 865 N.W.2d 44, quoting MCL 777.32(1)(e) (alteration in original). "If ‘[t]he offender possessed or used no weapon,’ zero points should be assessed." Id . at 17, 865 N.W.2d 44, quoting MCL 777.32(1)(f) (alteration in original). This Court has said before that a tire iron is "a potentially dangerous weapon." People v. Rollins , 33 Mich. App. 1, 10, 189 N.W.2d 716 (1971). The trial court did not err by assessing one point under OV 2 based on defendant’s use of a tire iron during the robbery.

B. OV 7

We next turn to defendant’s argument that the trial court erred by assessing 50 points under OV 7 because his conduct toward Valentin during the robbery did not rise to the level of sadism, torture, excessive brutality, or similarly egregious conduct.

MCL 777.37(1)(a) provides that 50 points be assessed when " ‘[a] victim was treated with sadism, torture, excessive brutality, or similarly egregious conduct designed to substantially increase the fear and anxiety a victim suffered during the offense.’ " People v. Rosa , 322 Mich. App. 726, 743, 913 N.W.2d 392 (2018), quoting MCL 777.37(1)(a). " ‘OV 7 is designed to respond to particularly heinous instances in which the criminal acted to increase [a victim’s] fear by a substantial or considerable amount.’ " Id ., quoting People v. Glenn , 295 Mich. App. 529, 536, 814 N.W.2d 686 (2012) (alteration in original), rev’d on other grounds by Hardy , 494 Mich. at 434, 835 N.W.2d 340. Because of the language "during the offense" used in MCL 777.37(1)(a), the focus of OV 7 is "solely on conduct occurring during the [sentencing] offense." People v. Thompson , 314 Mich. App. 703, 711, 887 N.W.2d 650 (2016). "Regardless, even if OV 7 did not contain language that expressly limits the judge’s consideration to conduct that occurred during the sentencing offense, OV 7 certainly does not specifically provide that a sentencing court may look outside the sentencing offense to past criminal conduct in scoring OV 7." Id .

Focusing solely on the conduct that occurred during defendant’s unarmed robbery of Valentin, we must determine whether Valentin "was treated with sadism, torture, excessive brutality, or similarly egregious conduct designed to substantially increase the fear and anxiety [Valentin] suffered during the offense." MCL 777.37(1)(a). Neither party asserts that "sadism," "torture," or "excessive brutality" are at issue, and the facts in no way suggest that those terms would be applicable.² As a result, we must determine only whether Valentin was treated with conduct "similarly egregious" to sadism, torture, or excessive brutality that was "designed to substantially increase the fear and anxiety a victim suffered during the offense." MCL 777.37(1)(a).³

In making this determination, we must consider "whether the defendant engaged in conduct beyond the minimum required to commit the offense" and, if so, "whether the conduct was intended to make a victim’s fear or anxiety greater by a considerable amount." Hardy , 494 Mich. at 443-444, 835 N.W.2d 340. Here, defendant was convicted of unarmed robbery which requires proof beyond a reasonable doubt that defendant committed (1) a felonious taking of property from another (2) by force or violence or assault or putting in fear (3) while unarmed. People v. Johnson , 206 Mich. App. 122, 125-126, 520 N.W.2d 672 (1994). There is no question that defendant engaged in conduct that went beyond the minimum required to commit the offense by using a tire iron during the course of the robbery of Valentin. With that conclusion, we now turn to whether defendant’s conduct was intended to make Valentin’s fear or anxiety greater by a considerable amount, Hardy , 494 Mich. at 444, 835 N.W.2d 340, while keeping in mind the legislative command that this conduct must have been similarly egregious to sadism, torture, or excessive brutality.

The closest decision addressing facts similar to those in the present case is People v. Hornsby , 251 Mich. App. 462, 650 N.W.2d 700 (2002). In Hornsby , the trial court assessed 50 points for OV 7 because it found evidence of "terrorism," a term that was contained in a prior version of MCL 777.37(1)(a), and which was defined as "conduct designed to substantially increase the fear and anxiety a victim suffers during the offense." Hornsby , 251 Mich. App. at 468, 650 N.W.2d 700 (quotation marks and citation omitted).⁴ The Court concluded that the trial court’s decision was not an abuse of discretion because during the armed robbery defendant "did more than simply produce a weapon and demand money"; defendant cocked the weapon and repeatedly threatened the employees during the course of the robbery. Id . at 469, 650 N.W.2d 700. In most other decisions addressing OV 7, the facts underlying the crime, whether falling under the definitions of sadism, torture, or excessive brutality, involved the defendant engaging in extreme and horrific actions. See People v. Hunt , 290 Mich. App. 317, 324-325, 810 N.W.2d 588 (2010), and cases cited therein. More recently, in Rosa , 322 Mich. App. at 744, 913 N.W.2d 392, we upheld the trial court’s assessment of 50 points for OV 7 because defendant’s strangulation and suffocation of, and threats to, the victim constituted excessive brutality.

Despite the somewhat significant factual similarities between this case and Hornsby , Hornsby was decided under a substantially different statutory provision. Although the statute in Hornsby and the current version both contain language regarding "conduct designed to substantially increase the fear and anxiety a victim suffers during the offense," the statute then, unlike the current version, did not contain the requirement that the conduct be "similarly egregious" to conduct that falls within sadism, torture, or excessive brutality. And that, we conclude, is a significant difference. Therefore, Hornsby does not control the outcome of this appeal.

Here, although defendant threatened⁵ Valentin when demanding the money and other belongings, he did no more. Valentin immediately turned over what was demanded, and defendant took no action that could rise to the level of egregious conduct similar to sadism, torture, or excessive brutality...