Background
Ricky Moore was originally convicted of two counts of conspiracy to commit armed robbery, assault with intent to rob while armed, two counts of felony firearm, and first-degree felony murder for his role in a 2009 robbery plot. The victim, Misbah Hans, a Detroit apartment building owner, was shot and killed by co-offender Danny Gaskins during the robbery attempt. Moore was acquitted of first-degree felony murder.
Moore was originally sentenced to life with the possibility of parole. In 2023, Moore and the prosecution jointly moved for resentencing relief under People v. Stovall. At resentencing, the trial court imposed a 25-to-50-year sentence for the conspiracy and assault convictions.
Moore appealed, challenging the trial court’s scoring of offense variables under Michigan’s sentencing guidelines, particularly arguing that the scoring improperly relied on acquitted conduct (his acquittal of felony murder) and conduct involving co-offender Gaskins.
The Court’s Holding
The Michigan Court of Appeals affirmed the resentencing. The court held that in multiple-offender cases, sentencing guidelines permit scoring for co-offender conduct—such as a co-offender’s discharge of a firearm (OV 1) or a victim’s death (OV 3)—regardless of whether the defendant personally committed those acts or was acquitted of related charges. The court distinguished between acquitted conduct (which Beck doctrine prohibits) and co-offender conduct in multiple-offender cases (which statutory guidelines explicitly contemplate). Because the trial court scored OV 1 and OV 3 based on Gaskins’s actions and Hans’s death—not on Moore’s personal commission of murder or aiding and abetting murder—the scoring did not violate due process.
The court also affirmed the 15-point score for OV 8 (asportation), finding that Hans was moved from the building’s entryway to a remote apartment—a place of greater danger—even though the movement was voluntary. For OV 10 (predatory conduct), the court found all three requirements met: Moore engaged in preoffense conduct (recruiting co-offenders, calling Hans, arranging the meeting), directed it at a specific, vulnerable victim, and did so with the primary purpose of victimization.
The court found OV 13 (pattern of criminal conduct) was improperly scored at 25 points because Moore had no prior crimes against a person, conspiracies do not constitute crimes against a person, and a single criminal act cannot establish a pattern. However, the error was harmless because even with a 25-point reduction, Moore’s offense variable level remained unchanged, leaving his sentencing guidelines range unaffected.
Key Takeaways
- In multiple-offender cases, Michigan sentencing guidelines allow scoring for co-offender conduct (weapon use, victim death) independent of whether the defendant personally committed the acts or was acquitted of related charges, provided statutory instructions are followed.
- The Beck acquitted-conduct doctrine does not prohibit a trial court from following statutory sentencing guidelines instructions regarding co-offender conduct in multiple-offender cases.
- Asportation for OV 8 purposes can occur when a victim is moved to a place of greater danger even if the victim voluntarily accompanied the offender.
- Predatory conduct requires preoffense conduct directed at a specific victim with apparent vulnerability, with the primary purpose of victimization—including conduct that recruits others and specifically targets a victim.
- Conspiracy convictions are crimes against public safety, not crimes against a person, and cannot support a pattern of criminal activity for OV 13 scoring purposes.
Why It Matters
This decision clarifies a critical distinction in Michigan sentencing law: while the constitutional bar on acquitted conduct remains firmly in place, trial courts retain authority to score offense variables based on co-offender conduct in multiple-offender cases, provided they apply statutory guidelines rather than make independent factual findings about acquitted conduct. The decision protects defendants from unconstitutional sentence enhancement while respecting the legislature’s design of the sentencing guidelines framework.
For practitioners, the ruling confirms that predatory conduct extends beyond stalking or lying in wait to include deliberate recruitment and targeting of vulnerable victims, and that OV 13 errors do not warrant resentencing when the offense variable level (and thus the guidelines range) remains unchanged. The decision also reiterates that conspiracy classifications matter for pattern-of-criminal-activity analysis.