              If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                   revision until final publication in the Michigan Appeals Reports.




                           STATE OF MICHIGAN

                            COURT OF APPEALS


    PEOPLE OF THE STATE OF MICHIGAN,                                 UNPUBLISHED
                                                                     April 16, 2020
                 Plaintiff-Appellee,

    v                                                                No. 343789
                                                                     Tuscola Circuit Court
    BRANDON EARL SMALLWOOD,                                          LC No. 17-014011-FC

                 Defendant-Appellant.


Before: SAWYER, P.J., and LETICA and REDFORD, JJ.

PER CURIAM.

         Defendant, Brandon Earl Smallwood, pleaded nolo contendere to armed robbery, MCL
750.529, first-degree home invasion, MCL 750.110a(2), and unlawful imprisonment, MCL
750.349b. Defendant was sentenced as a second-offense habitual offender, MCL 769.10, to serve
20 to 60 years’ imprisonment for armed robbery, 20 to 30 years’ imprisonment for first-degree
home invasion, and 15 to 22½ years’ imprisonment for unlawful imprisonment. Defendant appeals
as on leave granted,1 challenging the scoring of offense variables (OVs) 1, 2, and 8. We affirm
the trial court’s scoring of OV 8. However, because we conclude that the trial court failed to make
the requisite factual determinations in scoring OVs 1 and 2, and because the reduction of points
scored for these offense variables results in an alteration of the sentencing guidelines range, we
remand to the trial court for resentencing.

                                            I. FACTS

       On January 24, 2017, defendant and his codefendant, Lance Tyler Swinehart, broke into
Michael Dyer’s home. Dyer, who was sleeping on his couch, woke up to find defendant and
Swinehart standing over him and pointing what appeared to be semiautomatic handguns at him.
Defendant and Swinehart tied Dyer’s hands and feet with duct tape before retrieving marijuana
from Dyer’s bedroom. Defendant and Swinehart also took Dyer’s prescription Vicodin and $180
from his wallet. They left after advising Dyer that if they saw him trying to look through the


1
    People v Smallwood, 503 Mich 953 (2019).


                                                -1-
window, they would “unload on him.” Dyer waited until he heard the sound of the vehicle leaving
and then crawled to the kitchen to cut off the tape. Dyer told police officers that the men who
robbed him had what appeared to be a 9-millimeter handgun.

        Swinehart told the police officers that when he and defendant arrived at Dyer’s house,
defendant pulled two BB pistols out of his jacket and gave one to Swinehart. When they finished
robbing Dyer, defendant threw the BB guns out the window of the car. During a search of
defendant’s mother’s residence, the police officers found a BB gun “clip,” a ziplock bag with 174
grams of suspected marijuana, a “Muscle Milk Container” with 53 grams of suspected marijuana,
a plastic container with 216 grams of suspected marijuana, bandanas, and an “air soft/BB rifle.”
When he was interviewed by the police, defendant’s brother, Eric Dill, told the police officers that
they did have BB guns in the house but defendant took them about three days before he was
arrested and he had not seen them since.

                                            II. ANALYSIS

                                    A. STANDARD 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.” People v Hardy, 494
Mich 430, 438; 835 NW2d 340 (2013). “Clear error exists when the reviewing court is left with a
definite and firm conviction that a mistake was made.” People v McDade, 301 Mich App 343,
356; 836 NW2d 266 (2013). “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.” Hardy, 494 Mich at 438.

                                         B. OV 1 AND OV 2

         We conclude that the trial court erred in scoring OV 1 and OV 2 by failing to make a factual
determination regarding whether defendant possessed or used a firearm during the commission of
the sentencing offense. Because the reduction of the 16 points assessed for these offense variables
results in an alteration of the guidelines range, resentencing is required.

         “[OV 1] is aggravated use of a weapon.” MCL 777.31(1). Under MCL 777.31(1)(c), when
“[a] firearm was pointed at or toward a victim or the victim had a reasonable apprehension of an
immediate battery when threatened with a knife or other cutting or stabbing weapon,” 15 points
are scored for OV 1.2 “[OV 2] is lethal potential of the weapon possessed or used.” MCL
777.32(1). Under MCL 777.32(1)(e), when “[t]he offender possessed or used any other potentially
lethal weapon,” one point is scored for OV 2.




2
  Alternatively, five points are scored if “[a] weapon was displayed or implied,” MCL
777.31(1)(e); however, five points may not be scored for OV 1 when armed robbery is the
sentencing offense, MCL 777.31(2)(e).

                                                   -2-
        MCL 777.31 does not define “firearm.” However, MCL 8.3t provides: “The word
‘firearm’, except as otherwise specifically defined in statute, includes any weapon which will, is
designed to, or may readily be converted to expel a projectile by action of an explosive.”

       In ruling that 15 points were properly scored for OV 1, the trial court stated:

       [T]here’s a reference on Page 2 of the Presentence Investigation Report under
       Agent’s Description of the Offense, fourth paragraph, where the victim’s indicating
       what occurred. The last sentence indicates he “. . . woke up to find two individuals
       standing over him pointing . . . semi auto type handguns at him.”

              And then Page 5 also under the agent’s description, first paragraph, quote,
       “Dyer stated he thought the gun was a 9mm handgun that was black or silver but
       could not tell if it was a real gun. He did not notice anything that would indicate it
       was not a real gun.”

               I mean I guess the way I look at this is whether or not the gun was an actual
       firearm, it certainly was being utilized as a firearm, and it’s the same principle in
       the statute for armed robbery. Because it was possibly a BB gun doesn’t make it
       not an armed robbery.

               So as far as I’m concerned, the purpose and the use of the weapon was to
       intimidate and/or put the victim in reasonable apprehension of a battery. And for
       all intents and purposes, the victim did not know that it was not a real gun, so
       whatever the victim went through, he was going through that as if it was a real gun.
       So the Court finds that [OV 1] is properly scored at 15 and denies the objection.

         The trial court concluded that whether the weapon used by defendant was real did not make
a difference for purposes of scoring OV 1, and that the victim suffered a reasonable apprehension
of battery, which is “the same principle in the statute for armed robbery.” However, under MCL
777.31(1)(c), a “firearm,” specifically, has to be pointed at or toward a victim. In this case, there
are conflicting assertions by defendant and the victim about what kind of a weapon was used in
this case. The PSIR states that Swinehart indicated that he saw defendant throwing the BB guns
that they had used out of the window of the car after they had robbed Dyer. Additionally, police
officers, acting on a tip, among several grams of marijuana and other items, found a BB gun “clip”
at the residence where the police officers were told they would find all the evidence. On the other
hand, Dyer told the police officers that he “thought” the gun that was used to rob him was a black
or silver 9-millimeter handgun.

       The trial court, in scoring OV 1, did not make a finding concerning the weapon that was
used in commission of the offense. The trial court analogized the elements of armed robbery in
support of its conclusion, instead of applying the specific statutory language of MCL 777.31(1)(c)
and MCL 8.3t and making a factual finding regarding whether defendant used a BB gun or a 9-
millimeter handgun in the commission of the sentencing offense, armed robbery. Similarly,
because the trial court did not make a factual finding concerning what kind of weapon defendant
used, we cannot make a determination regarding whether defendant possessed or used a
“potentially lethal weapon” for purposes of OV 2.

                                                -3-
        A reduction of the 16 points assessed for OVs 1 and 2 results in an alteration of defendant’s
minimum sentencing guidelines range. See MCL 777.62. Therefore, because any error in scoring
OV 1 and OV 2 would affect the applicable guidelines range, defendant is entitled to resentencing
on this basis. See People v Francisco, 474 Mich 82, 89 n 8; 711 NW2d 44 (2006); People v Davis,
468 Mich 77, 83; 658 NW2d 800 (2003).

                                              C. OV 8

       We conclude that the trial court properly assessed 15 points for OV 8.

       “[OV 8] is victim asportation or captivity.” MCL 777.38(1). Under MCL 777.38(1)(a),
when “[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,” 15 points are scored for OV
8 (emphasis added).

         In this case, defendant and Swinehart tied Dyer’s wrists and ankles while holding a gun to
the back of his head, and they instructed him not to move. After defendant and Swinehart stole
Dyer’s marijuana from his bedroom, they told Dyer that if they saw him looking out the window,
they would “unload on him.” Dyer stated that he “waited for the sound of the vehicle to leave
before crawling over to the kitchen and cutting off the tape.” This record evidence was sufficient
for the trial court to find, by a preponderance of the evidence, that Dyer was held “captive beyond
the time necessary to commit the offense,” MCL 777.38(1)(a).

       We affirm the trial court’s assessment of 15 points for OV 8. However, because the trial
court did not make the requisite factual findings in scoring OVs 1 and 2, we remand for
resentencing. We do not retain jurisdiction.



                                                              /s/ David H. Sawyer
                                                              /s/ Anica Letica
                                                              /s/ James Robert Redford




                                                -4-
