COA 375096 PEOPLE OF MI V RICKY MOORE Opinion - Per Curiam - Unpublished 7/13/2026

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
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S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
UNPUBLISHED
July 13, 2026
10:23 AM
v No. 375096
Wayne Circuit Court
RICKY MOORE, LC No. 09-020798-01-FC
Defendant-Appellant.
Before: RICK, P.J., and MURRAY and BORRELLO, JJ.
PER CURIAM.
Defendant appeals by right his resentencing of 25 to 50 years’ imprisonment for his 2010
convictions of two counts of conspiracy to commit armed robbery, MCL 750.529, and assault with
intent to rob while armed, MCL 750.89. We affirm.
I. FACTUAL BACKGROUND
This case arose from defendant’s plans to rob Misbah Hans at an apartment building he
owned in Detroit. On January 26, 2009, defendant recruited Robert Bates and Jonathan Walker to
rob Hans. However, Bates and Walker were unsuccessful because they were unable to get past
the vestibule area of the apartment complex. The next day, defendant and Danny Gaskins returned
to the apartment building. Defendant stayed in his vehicle while Gaskins went inside claiming to
be interested in renting an apartment. While Hans was showing Gaskins an apartment, Gaskins
pulled a gun, shot Hans multiple times, and ran out of the building. Hans died from the gunshot
wounds.
Defendant was charged with two counts of conspiracy to commit armed robbery, assault
with intent to rob while armed, two counts of felony firearm, MCL 750.227b, and first-degree
felony murder, MCL 750.316(1)(b). A jury found defendant guilty of the charged offenses with
the exception of first-degree felony murder. He was sentenced to life with the possibility of parole.
In 2023, the prosecution and defendant jointly moved for relief from judgment, asserting
that defendant was entitled to resentencing under People v Stovall, 510 Mich 301; 987 NW2d 85
(2022). At the resentencing hearing, defendant was sentenced to 25 to 50 years’ imprisonment for

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his convictions of two counts of conspiracy to commit armed robbery and assault with intent to
rob while armed. This appeal followed.
II. SENTENCING
Defendant argues that his within-guidelines sentence was based upon an inaccurate scoring
of the sentencing guidelines. We conclude that OV 1, OV 3, OV 8, and OV 10 were properly
scored. Although we agree that OV 13 was improperly scored, defendant is not entitled to relief
because his guidelines range remained the same.
A. ISSUE PRESERVATION
“To preserve a challenge to the scoring of the sentencing guidelines, the challenge must be
raised at sentencing, in a proper motion for resentencing, or in a proper motion to remand filed in
this Court.” People v Ventour, 349 Mich App 417, 433; 27 NW3d 660 (2023). Defendant raised
an objection to the scoring of OV 1 and OV 8 directly before the trial court, preserving his
arguments as to those offense variables. Id. However, because defendant did not challenge the
scoring of OV 3, OV 10, or OV 13 at resentencing, his arguments regarding those are unpreserved.
Id.
B. STANDARD OF REVIEW
“Under the sentencing guidelines, a trial court’s findings of fact are reviewed for clear error
and must be supported by a preponderance of the evidence.” People v Thompson, 314 Mich App
703, 708; 887 NW2d 650 (2016). “We review de novo whether the facts as found were adequate
to satisfy the statutory scoring conditions.” People v Carlson, 332 Mich App 663, 666; 958 NW2d
278 (2020). “Clear error is present when the reviewing court is left with a definite and firm
conviction that an error occurred.” People v Fawaz, 299 Mich App 55, 60; 829 NW2d 259 (2012)
(quotation marks and citation omitted). “When calculating the sentencing guidelines, a court may
consider all record evidence, including the contents of a [presentence investigation report], plea
admissions, and testimony presented at a preliminary examination.” People v McChester, 310
Mich App 354, 358; 873 NW2d 646 (2015).
Defendant’s unpreserved arguments regarding the scoring of OV 3, OV 10, and OV 13 are
reviewed for plain error affecting his substantial rights. Ventour, 349 Mich App at 433. “To avoid
forfeiture under the plain error rule, three requirements must be met: 1) error must have occurred,
2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights.”
People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). An error affects substantial rights
when it “affected the outcome of the lower court proceedings.” Id. “Reversal is warranted only
when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when
an error seriously affected the fairness, integrity or public reputation of judicial proceedings
independent of the defendant’s innocence.” Id. at 763-764 (quotation marks, brackets, and citation
omitted).

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C. ANALYSIS
Defendant first makes an overreaching argument that the trial court relied on acquitted
conduct in scoring the offense variables. “[R]eliance on acquitted conduct at sentencing is barred
by the Fourteenth Amendment.” People v Beck, 504 Mich 605, 629; 939 NW2d 213 (2019).
“Once acquitted of a given crime, it violates due process to sentence the defendant as if he
committed that very same crime.” Id. at 609. There is an important distinction “between acquitted
conduct—conduct a jury has determined the prosecutor failed to prove beyond a reasonable
doubt—and uncharged conduct—conduct about which the jury has made no finding.” People v
Boukhatmi, 351 Mich App 181, 191; 34 NW3d 914 (2024). “Acquitted conduct shows up at
sentencing in the company of the due-process protection of the presumption of innocence;
uncharged conduct does not . . . .” Beck, 504 Mich at 621.
When a jury has made no findings (as with uncharged conduct, for example), no
constitutional impediment prevents a sentencing court from punishing the
defendant as if he engaged in that conduct using a preponderance-of-the-evidence
standard. But when a jury has specifically determined that the prosecution has not
proven beyond a reasonable doubt that a defendant engaged in certain conduct, the
defendant continues to be presumed innocent. [Id. at 626.]
To identify which facts and circumstances are prohibited from consideration at sentencing,
this Court has used an approach focused “on what the parties actually disputed at trial.” People v
Brown, 339 Mich App 411, 423; 984 NW2d 486 (2021). This approach involves “examining the
record to determine the ground or grounds upon which a rational jury could have acquitted the
defendant.” Id. “Under Brown’s rational-jury standard, we look at the conduct actually disputed
at trial to determine the basis of the jury’s acquittal and whether the evidence the trial court
considered at sentencing was consistent with that acquittal.” Boukhatmi, 351 Mich App at 192.
“Moreover, if a specific fact or circumstance was relevant to both the acquitted charge and the
convicted charge—i.e., if there was an overlap of relevant conduct—then the trial court could
consider that fact or circumstance when sentencing on the convicted charge.” Brown, 339 Mich
App at 425.
1. OV 1 AND 3
Under MCL 777.31(1)(a), 25 points are assessed for OV 1 if a “firearm was discharged at
or toward a human being.” Under MCL 777.33(1)(a), 100 points are assessed for OV 3 if a victim
is killed. The instructions for OV 1 provide that “[i]n multiple offender cases, if 1 offender is
assessed points for the presence or use of a weapon, all offenders shall be assessed the same
number of points.” MCL 777.31(2)(b). Similarly, the instructions for OV 3 provide that “[i]n
multiple offender cases, if 1 offender is assessed points for death or physical injury, all offenders
must be assessed the same number of points.” MCL 777.33(2)(a). Defendant was assessed 25
points for OV 1 and 100 points for OV 3.
Though a trial court may not rely on acquitted conduct when imposing a sentence, “Beck
does not prohibit the trial court from adhering to the clear statutory instructions for assessing points
under OV 1 . . . .” Ventour, 349 Mich App at 435. Defendant’s acquittal of first-degree felony
murder has no bearing on the trial court’s finding that a co-offender discharged a firearm toward

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a human being. There was evidence presented at trial that Gaskins shot Hans three times with a
firearm. By its plain terms, OV 1 applies regardless of whether defendant or Gaskins discharged
the firearm, and it does not require that the defendant actually discharge a firearm or be convicted
of discharging a firearm toward a human being. Id.
Similarly, defendant’s acquittal of first-degree felony murder had no bearing on the trial
court’s finding that a victim was killed by another offender. Hans died after suffering from the
gunshot wounds. Like OV 1, OV 3 applies regardless of whether defendant or Gaskins killed the
victim, and it did not require that defendant commit murder or be convicted of murder. Moreover,
the instructions for OV 3 directed the trial court to “[s]core 100 points if death results from the
commission of a crime and homicide is not the sentencing offense.” MCL 777.33(2)(b). As
defendant was acquitted of first-degree felony murder, homicide was not the sentencing offense.
Because death was a result of defendant’s commission of other crimes, including conspiracy to
commit armed robbery and assault with intent to commit armed robbery, OV 3 was properly scored
at 100 points.
Under Beck, defendant’s acquittal of first-degree felony murder prohibited the trial court
from enhancing defendant’s sentence for his other convictions on the basis of a finding that
defendant personally committed first-degree felony murder or aided or abetted a co-offender’s
commission of first-degree felony murder. Ventour, 349 Mich App at 435-436. The trial court
did not score OV 1 and OV 3 on the basis of any such finding. Rather, consistent with the statutory
instructions for OV 1 and OV 3, the court assessed points for OV 1 and OV 3 because defendant
was a codefendant in a multiple-offender case in which another offender discharged a weapon at
a victim resulting in the victim’s death, and the other offender was assessed points for discharging
a weapon and the victim’s death. Under these circumstances, the trial court’s scoring of OV 1 and
OV 3 was not inconsistent with defendant’s acquittal of felony murder and does not violate the
Fourteenth Amendment as interpreted by Beck. The trial court’s 25-point score for OV 1 was not
clearly erroneous and 100-point score for OV 3 was not plain error.
2. OV 8
Defendant next argues that OV 8 was improperly scored because there was no evidence of
asportation.
Under MCL 777.38(1)(a), 15 points are assessed for OV 8 if a “victim was asported to
another place of greater danger or to a situation of greater danger or was held captive beyond the
time necessary to commit the offense.” “A plain reading of asportation is this: If a victim is carried
away or removed ‘to another place of greater danger or to a situation of greater danger,’ MCL
777.38(1)(a), the statutory language is satisfied.” People v Barrera, 500 Mich 14, 21; 892 NW2d
789 (2017). Asportation may be present where the victim is removed to a location where an
offense “was less likely to be discovered,” rendering a “location a ‘place of greater danger’ or ‘a
situation of greater danger.’ ” Barrera, 500 Mich at 22. The movement may be incidental to the
offense or meaningfully deliberate. Id. “Asportation does not require force; asportation for the
purpose of OV 8 may occur even when the victim voluntarily accompanied the defendant to a
place or situation of greater danger.” People v Dillard, 303 Mich App 372, 379; 845 NW2d 518
(2013), overruled on other grounds by Barrera, 500 Mich at 17.

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Along with two counts of felony-firearm and two counts of conspiracy to commit armed
robbery, defendant was convicted of assault with intent to rob while armed under a theory of aiding
and abetting. After the unsuccessful plan to rob Hans on January 26, 2009, defendant recruited
Gaskins to help him rob Hans. This time, defendant arranged for Hans to show Gaskins an
apartment, so that Gaskins could gain entry into the building. When Gaskins arrived at the
building, he followed defendant’s plan, acting interested in renting the apartment to access the
building and rob Hans. Though not by force, Hans moved with Gaskins from the entryway of the
building to the vacant apartment where the intended robbery was planned to occur. This movement
qualifies as asportation to a place of greater danger for purposes of OV 8 because Hans went with
Gaskins to a more remote area of the building, placing Hans in greater danger. And, as with
defendant’s arguments on OV 1 and OV 3, the trial court did not score OV 8 on the basis of any
acquitted conduct. The trial court properly scored OV 8 at 15 points.
3. OV 10
Defendant also challenges the trial court’s assessment of 15 points for OV 10.
OV 10 is scored for the “exploitation of a vulnerable victim.” MCL 777.40(1). A trial
court must assess 15 points for OV 10 if it finds that “[p]redatory conduct was involved” in the
sentencing offense. MCL 777.40(1)(a). “Predatory conduct” is defined as “preoffense conduct
directed at a victim . . . for the primary purpose of victimization.” MCL 777.40(3)(a). Preoffense
conduct includes behavior that is “ ‘predatory’ in nature, e.g., lying in wait and stalking.” People
v Huston, 489 Mich 451, 462; 802 NW2d 261 (2011).
[T]o find that a defendant engaged in predatory conduct, a trial court must conclude
that (1) the defendant engaged in preoffense conduct, (2) the defendant directed
that conduct toward one or more specific victims who suffered from a readily
apparent susceptibility to injury, physical restraint, persuasion, or temptation, and
(3) the defendant’s primary purpose in engaging in the preoffense conduct was
victimization. [People v Baskerville, 333 Mich App 276, 296; 963 NW2d 620
(2020) (quotation marks and citation omitted).]
Preoffense conduct that “created or enhanced” the vulnerability of a victim is predatory. People v
Barnes, 332 Mich App 494, 503; 957 NW2d 62 (2020) (quotation marks and citation omitted).
Defendant characterizes his involvement in the crimes as merely the driver who did not
follow or stalk the victim. However, the evidence demonstrates a more significant degree of
involvement in conduct directly targeted at Hans. For example, defendant recruited Bates, Walker,
and Gaskins to rob the landlord of the apartment building, Hans. Defendant picked up Bates and
Walker on January 26, 2009, and brought them to the building to rob Hans. Defendant informed
Bates and Walker that Hans would be at the building because Hans’s truck was there. After that
was unsuccessful, the next day, defendant picked up Gaskins and brought him to the building. By
calling Hans on Gaskins’s phone, defendant arranged a meeting for Gaskins to feign interest in
renting an apartment to have the opportunity to rob Hans. Defendant specifically targeted Hans,
believing that he had large sums of cash on him. Defendant knew that Hans was interested in
renting out the apartments in the building he owned. With that knowledge, he formulated and took
steps to implement a plan to steal Hans’s money. Thus, each of the requirements for predatory

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conduct were met. Baskerville, 333 Mich App at 296. The trial court did not commit plain error
in assessing 15 points for OV 10.
4. OV 13
Defendant argues that the trial court improperly scored OV 13 at 25 points for a pattern of
continuing criminal conduct when he had no prior record of crimes against a person and
defendant’s convictions arose from a single act.
OV 13 addresses a “continuing pattern of criminal behavior.” MCL 777.43(1). The trial
court must assess 25 points for OV 13 if the “offense was part of a pattern of felonious criminal
activity involving 3 or more crimes against a person.” MCL 777.43(1)(c). To determine the
appropriate points to be assessed under OV 13, “all crimes within a 5-year period, including the
sentencing offense, shall be counted regardless of whether the offense resulted in a conviction.”
MCL 777.43(2)(a). A pattern of criminal activity may be based on multiple offenses arising from
the same event. People v Harmon, 248 Mich App 522, 532; 640 NW2d 314 (2001). However, “a
single felonious act cannot constitute a pattern” under MCL 777.43(1). People v Carll, 322 Mich
App 690, 704; 915 NW2d 387 (2018).
“[A] felony designated as a ‘crime against public safety’ may not be used to establish a
‘pattern of felonious criminal activity involving 3 or more crimes against a person,’ MCL
777.43(1)(c), for purposes of scoring OV 13.” People v Bonilla-Machado, 489 Mich 412, 416;
803 NW2d 217 (2011). A “[c]onspiracy does not constitute a crime against a person or property.”
People v Goodman, 497 Mich 883, 883 (2014). Because defendant’s conspiracy convictions were
crimes against public safety, the trial court was not permitted to consider them for purposes of OV
13.
Defendant had previously been convicted of possession with intent to deliver less than 50
grams of cocaine, heroin, or another narcotic, MCL 333.7401(2)(a)(iv), possession with intent to
deliver less than 5 kilograms of marijuana, MCL 333.7401(2)(d)(iii), felony-firearm, and
malicious destruction of fire or police property, MCL 750.377b. None of defendant’s history
qualified as conduct that could establish “a pattern of felonious criminal activity involving 3 or
more crimes against a person.” MCL 777.43(1)(c). The only remaining conviction for purposes
of scoring OV 13 was the assault with intent to rob while armed, but this offense alone did not
establish a pattern of criminal activity. Thus, the trial court erred when it assessed 25 points for
OV 13.
Nevertheless, defendant is not entitled to relief. The error did not affect the outcome of the
lower court proceedings. Carines, 460 Mich at 763. Even with a reduction of 25 points,
defendant’s total OV score is 180 points, meaning he remains in OV Level VI. See MCL 777.62.
Because defendant’s sentencing guidelines range did not change, defendant is not entitled to
resentencing. People v Francisco, 474 Mich 82, 89 n 8; 711 NW2d 44 (2006).
Affirmed.
/s/ Michelle M. Rick
/s/ Christopher M. Murray
/s/ Stephen L. Borrello

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