935 N.W.2d 51
Mich. Ct. App.2019Background
- Defendant Ricardo Rodriguez, Jr. was convicted by a jury of unarmed robbery, possession of <25g cocaine, and possession of marijuana; sentenced as a fourth-offense habitual offender.
- During the incident defendant took a tire iron, smashed truck windows, threatened victim Adrian Valentin with a knife, and demanded money and a bracelet; victim complied.
- Codefendant Tonya Tique‑Diaz initially attempted to break the truck windows with the tire iron before defendant took it and used it.
- Police later obtained consent to search the apartment from defendant and Tique‑Diaz; drugs were recovered.
- On appeal defendant challenged several offense-variable (OV) scores (OVs 2, 7, 9, 12) and the validity of the consent to search; he sought resentencing if scores were erroneous.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| OV 2 (weapon) | One point properly assessed because defendant used a potentially lethal weapon (tire iron). | Should be 0 because there was no evidence he used or possessed a knife (cutting/stabbing weapon). | Affirmed: one point under OV 2 is proper; tire iron qualifies as a potentially lethal weapon. |
| OV 7 (egregious conduct) | 50 points justified because defendant used a weapon and threatened the victim during the robbery. | 50 points improper; conduct did not rise to sadism, torture, excessive brutality, or similarly egregious conduct. | Reversed as to OV 7: conduct (use of tire iron and threats) did not meet the statutory “similarly egregious” threshold for 50 points. |
| OV 9 (number of victims) | 10 points proper because more than one person was placed in danger (Victim Valentin and bystander Rojas). | Only one victim was present; OV 9 should be 0. | Affirmed: 10 points proper because Rojas was in close proximity and thereby placed in danger. |
| OV 12 (contemporaneous felonies) | Court originally assessed 5 points but parties had stipulated to 0; scoring error. | Trial court should follow stipulation and assess 0. | Agreed: OV 12 should be 0; the 5-point entry was an administrative error. Remand for resentencing required due to OV 7 and OV 12 errors changing guidelines range. |
| Consent to search | Search was consensual and valid as to both defendant and Tique‑Diaz; officers’ testimony credible. | Defendant denied consenting; claimed Tique‑Diaz’s consent was coerced by threat to call Child Protective Services. | Affirmed: trial court’s credibility findings supported voluntariness of both consents; no coercion shown. |
Key Cases Cited
- Hardy v. People, 494 Mich. 430 (discusses standard of review for OV scoring and factual findings)
- Hutcheson v. People, 308 Mich. App. 10 (OV 2 lethal-weapon guidance)
- Rollins v. People, 33 Mich. App. 1 (tire iron recognized as potentially lethal)
- Rosa v. People, 322 Mich. App. 726 (OV 7 application where strangulation and threats constituted excessive brutality)
- Glenn v. People, 295 Mich. App. 529 (definitions and framework for sadism/torture/excessive brutality under OV 7)
- Johnson v. People, 206 Mich. App. 122 (elements of unarmed robbery; threat as necessary element)
- Hornsby v. People, 251 Mich. App. 462 (OV 7 assessed where defendant did more than produce weapon and repeatedly threatened victims)
- Francisco v. People, 474 Mich. 82 (sentencing remand required when scoring errors alter guidelines range)
- Mann v. People, 287 Mich. App. 283 (OV 9 concerns number of victims placed in danger)
- Sargent v. People, 481 Mich. 346 (victim definition for OV 9—placed in danger at time of offense)
- McGraw v. People, 484 Mich. 120 (OV scoring limited to conduct during sentencing offense)
- Gratsch v. People, 299 Mich. App. 604 (proximity can make a bystander a victim under OV 9)
- Beydoun v. People, 283 Mich. App. 314 (consent to search must be unequivocal, specific, and voluntary)
- Galloway v. People, 259 Mich. App. 634 (totality of circumstances governs voluntariness of consent)
- Borchard‑Ruhland v. People, 460 Mich. 278 (notice of right to refuse not required for voluntary consent)
- Frohriep v. People, 247 Mich. App. 692 (trial court’s consent findings reviewed for clear error)
- Kazmierczak v. People, 461 Mich. 411 (Fourth Amendment reasonableness principles)
- Dagwan v. People, 269 Mich. App. 338 (warrant exceptions and consent)
- Bolduc (On Remand) v. People, 263 Mich. App. 430 (consent invalid if product of coercion)