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UNPUBLISHED

March 18, 2021

v No. 351225

Alger Circuit Court

RUBEN JOSEPH RODRIGUEZ, LC No. 2012-001998-FC

Defendant-Appellant.

Before: MARKEY, P.J., and SHAPIRO and GADOLA, JJ.

PER CURIAM.

In an earlier appeal, this Court affirmed defendant’s convictions but remanded the case for 

the trial court to determine whether a preponderance of the evidence supported the 15-point 

assessment for offense variable (OV) 8 and to articulate its reasons for assessing 15 points for OV 

10. People v Rodriguez, unpublished per curiam opinion of the Court of Appeals, issued October 

21, 2014 (Docket No. 315216), pp 1, 4-6. On remand, the trial court found that the 15-point scores 

for OVs 8 and 10 were appropriate, citing evidence that supported the assessments. Defendant 

appeals by right. We affirm. 

On January 18, 2013, a jury found defendant guilty of first-degree home invasion, MCL 

750.110a(2), conspiracy to commit first-degree home invasion, MCL 750.110a(2) and MCL 

750.157a, unlawful imprisonment, MCL 750.349b, conspiracy to commit unlawful imprisonment, 

MCL 750.349b and MCL 750.157a, armed robbery, MCL 750.529, conspiracy to commit armed 

robbery, MCL 750.529 and MCL 750.157a, felonious assault, MCL 750.82, conspiracy to commit 

felonious assault, MCL 750.82 and MCL 751.157a, intentional discharge of a firearm at a dwelling 

or occupied structure, MCL 750.234b, felon in possession of a firearm, MCL 750.224f, and five 

counts of possession of a firearm during the commission of a felony (felony-firearm), MCL 

750.227b. 

Defendant was sentenced back in February 2013 as a second-offense habitual offender, 

MCL 769.10, to 10 to 30 years’ imprisonment for the home invasion and related conspiracy 

convictions, 7 to 221⁄2 years’ imprisonment for the unlawful imprisonment and related conspiracy 

convictions, 16 to 40 years’ imprisonment for the armed robbery and related conspiracy 
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convictions, 18 months to 6 years’ imprisonment for the felonious assault and related conspiracy 

convictions, 18 months to 6 years’ imprisonment for the firearm-discharge conviction, two to 

seven and a half years’ imprisonment for the felon-in-possession conviction, and two years’

imprisonment for each of the felony-firearm convictions.

Defendant filed an appeal by right, challenging his convictions and sentences. As 

indicated, defendant’s convictions were affirmed, but the panel remanded the case for the trial 

court to make findings with respect to OVs 8 and 10. On remand, the trial court determined that

the 15-point assessments for OV 8 and OV 10 were proper and explained its reasoning. This 

appeal eventually ensued. 

Defendant argues on appeal that the trial court erred by assessing 15 points for OVs 8 and

10. We disagree. Under the sentencing guidelines, the trial court’s findings of fact are reviewed 

for clear error and must be supported by a preponderance of the evidence. People v Hardy, 494 

Mich 430, 438; 835 NW2d 340 (2013); People v Rhodes (On Remand), 305 Mich App 85, 88; 849 

NW2d 417 (2014). Clear error is present when the appellate court is left with a firm and definite 

conviction that an error occurred. People v Fawaz, 299 Mich App 55, 60; 829 NW2d 259 (2012). 

This Court reviews de novo “[w]hether the facts, as found, are adequate to satisfy the scoring 

conditions prescribed by statute . . . .” Hardy, 494 Mich at 438; see also Rhodes, 305 Mich App 

at 88. In scoring OVs, 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 Johnson, 298 Mich App 128, 131; 826 NW2d 170 (2012). “[D]ue process 

bars sentencing courts from finding by a preponderance of the evidence that a defendant engaged 

in conduct of which he was acquitted.” People v Beck, 504 Mich 605, 629; 939 NW2d 213 (2019). 

MCL 777.38(1)(a) provides that 15 points must be 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 sentencing court must “[c]ount each person 

who was placed in danger of injury or loss of life as a victim.” MCL 777.38(2)(a). “A victim is 

asported to a place or situation involving greater danger when moved away from the presence or 

observation of others.” People v Chelmicki, 305 Mich App 58, 70-71; 850 NW2d 612 (2014). 

Places of greater danger include locations where others are less likely to see the defendant 

committing crimes. People v Steele, 283 Mich App 472, 491; 769 NW2d 256 (2009).

Daniel Frandson’s testimony indicated that defendant and two of his accomplices forced 

their way into Frandson’s home and assaulted him repeatedly. During the incident, Frandson 

looked out a window, saw a utility worker outside, and attempted to communicate to the worker 

that Frandson was in danger. One of defendant’s accomplices noticed the utility worker and alerted

defendant. Defendant then pressed a gun against Frandson’s forehead and told him to “move, get 

down that f***ing hallway.” Defendant and an accomplice then forcibly moved Frandson down 

the hallway. This evidence supported the finding that Frandson was asported to a place of greater 

danger, i.e., down the hallway and away from the window and the observation of others. The trial 

court relied on the evidence concerning the utility worker and the asportation caused by his 

presence. The trial court did not clearly err in its findings on OV 8. And the assessment of 15 

points for OV 8 was proper.
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OV 10 pertains to the exploitation of a vulnerable victim. MCL 777.40. An assessment of 

15 points is required if “[p]redatory conduct was involved.” MCL 777.40(1)(a). “ ‘Predatory 

conduct’ means preoffense conduct directed at a victim, or a law enforcement officer posing as a 

potential victim, for the primary purpose of victimization.” MCL 777.40(3)(a). Construing MCL 

777.40, our Supreme Court in People v Huston, 489 Mich 451, 462-463; 802 NW2d 261 (2011), 

stated:

[T]o give meaning to the entirety of MCL 777.40(1), and out of recognition 

that 15 points for “predatory conduct” constitutes the highest number of points 

available under OV 10 and that “preoffense conduct” is being used to define 

“predatory conduct,” we conclude that the latter term does not encompass any 

“preoffense conduct,” but rather only those forms of “preoffense conduct” that are 

commonly understood as being “predatory” in nature, e.g., lying in wait and 

stalking, as opposed to purely opportunistic criminal conduct or preoffense conduct 

involving nothing more than run-of-the-mill planning to effect a crime or 

subsequent escape without detection. This is the only interpretation that gives 

meaning to all the paragraphs of MCL 777.40(1), while respecting the obviously 

hierarchal character of those provisions. In short, “preoffense conduct” must be 

read in context. . . . .

In the instant case, although defendant may not have been lying in wait for 

a specific victim, he was unquestionably lying in wait for a victim. Therefore, his 

preoffense conduct was directed at “a victim.” MCL 777.40(3)(a). In this regard, it 

is helpful to consider why defendant was lying in wait, armed and hidden from 

view. And the answer to this question is quite obvious—he was doing this in order 

to place himself in a better position to be able to successfully rob someone in the 

parking lot. That is, defendant’s preoffense conduct of predatorily lying in wait, 

armed, and hidden from view was directed at “a victim.” Although defendant may 

not have known who his victim was going to be when he first undertook these 

actions, that does not undermine the fact that he was lying in wait for “a victim,”

and thus that his preoffense conduct was directed toward such “a victim.” 

[Quotation marks and citations omitted.]

The testimony of one of defendant’s accomplices, George Carmona, reflected that 

defendant, Carmona, and another accomplice were armed, wearing fatigues, and lying in wait in 

the woods outside Frandson’s house until his roommates left the home. After Frandson’s 

roommates left, defendant and his accomplices ran to Frandson’s house and ambushed him. It had 

been the plan all along to sneak up on Frandson’s house. The evidence established that defendant 

engaged in preoffense conduct that included lying in wait while armed. Frandson was vulnerable 

after his roommates left because he was alone and outnumbered in a rural, isolated location. Cf. 

Huston, 489 Mich at 467 (“We conclude that a person walking alone at night in a parking lot while 

two armed people hidden from that person’s view lie in wait to rob that person is a ‘vulnerable’

victim.”). The trial court’s findings were not clearly erroneous, and the court properly assessed 15 

points for predatory conduct under OV 10.

Finally, defendant argues that his appellate counsel in the prior appeal was ineffective for 

failing to raise an argument challenging the trial court’s scoring of OV 7. This argument exceeds 
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the scope of the remand this Court ordered in the prior opinion in this case. When “an appellate 

court remands for some limited purpose following an appeal as of right in a criminal case, a second 

appeal as of right, limited to the scope of the remand, lies from the decision on remand.” People 

v Kincade, 206 Mich App 477, 481; 522 NW2d 880 (1994); see also People v Jones, 394 Mich 

434, 435-436; 231 NW2d 649 (1975) (“the scope of [a] second appeal is limited by the scope of 

the remand[]”). Nevertheless, on examination of the issue, we conclude that it is entirely lacking 

in merit. The trial court determined that 50 points was the proper score for OV 7 because defendant 

treated Frandson with egregious conduct that was designed to substantially increase the fear and 

anxiety Frandson suffered during the offense. MCL 777.37(1)(a). There was an abundance of

evidence supporting this score. During the criminal episode, Frandson had a gun pointed at him, 

was repeatedly threatened with death, was struck in the face with the butt of a gun, had his mouth 

taped shut, was tied up and taped to a chair, had his head slammed against the corner of a wall 

after he was screaming and flailing in the chair, was slapped, and was generally physically beaten 

throughout the ordeal. Because the assessment of 50 points for OV 7 was proper, appellate 

counsel’s performance in not raising any argument in regard to the scoring of OV 7 was not 

deficient. See People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010) (“Failing to 

advance a meritless argument or raise a futile objection does not constitute ineffective assistance 

of counsel.”).

We affirm.

/s/ Jane E. Markey

/s/ Michael F. Gadola