People v. Barker
282 N.W.2d 266
Mich. Ct. App.
1979
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*1 1979] Barker BARKER PEOPLE v SLAYTON PEOPLE 12, 1978, at Detroit. December Nos. 78-839.Submitted Docket May 21, appeal applied Leave to for. Decided 1979. Jr., charged Slayton, were each A. James H. Barker and Claude first-degree conduct. criminal sexual with and third-degree and was convicted of Barker kidnapping, conduct, Slayton was of convicted sexual Kirwan, appealed Court, Slayton as Wayne R. J. Circuit John appeals granted. appealed right, and leave hearing and decision. Held: were consolidated for merely which is rule movement of 1. The underlying is insuffi- of an offense incidental to the commission kidnapping applies satisfy asportation to element of cient to equal charged underlying to is case in offense which kidnapping. asportation must be shown to be nonincidental 2. Where charged asportation is for the another Therefore, jury. from the which removed instruction asportation incidental to there was not of whether charged the other was erroneous. offense Reversed remanded. rule, Danhof, C.J., He would hold that dissented. merely to the commission the victim asporta- satisfy another is insufficient to the element tion, equal applicable is not to a case where the other offense kidnapping. He would affirm. Kidnapping — Asportation — — 1. Other Offense Incidental Movement.

The rule that of a victim insufficient commission of lesser offense is [1, [2] 75 Am Jur 1 Am Jur 2d, 2d, References Trial Abduction §§ for Points in Headnotes 322. Kidnapping 18.§ in a case Kidnapping Jury Asportation — — — 2. Instructions Other *2 — Offense Incidental Movement. question alleged kidnap of whether the of a charged was incidental to another is a fact necessary for the case in a which it is to show move- charged ment not incidental to the other offense in order to therefore, conviction; instruction, kidnapping sustain a charged in a case in which the defendant with was conduct, first-degree and criminal sexual was erroneous where the instruction removed from the whether the movement of the victim was incidental to the commission

of the sexual offense. by Danhof, Kidnapping Asportation — — — 3. Other Offense Incidental (cid:127) Movement.

The rule that of a victim which is incidental to commission of lesser offense insufficient to apply does not a case where the Frank General, J. Kelley, Attorney Robert A. Derengoski, General, Solicitor L. Cahalan, William Prosecuting Wilson, Attorney, Edward R. Principal Monk, Attorney, Appeals, Robert T. Assistant Prosecuting Attorney, people.

Bell Hudson, & P.C. (by Lester D. Hudson and Ronald A. Molter), for appeal. defendants on C.J.,

Before: Danhof, and R. M. Maher D. C. JJ. Riley,

D. C. J. Riley, charged Defendants were each with one 750.349; count of kidnapping, MCL MSA 28.581, and one of first-degree count criminal sex- 28.788(2)(1). conduct, ual 750.520b(l); MCL MSA People v Barker punishable imprison- crime is term of by any Each up complainant charged ment to life. The automobile, her into defendants forced their unconscious, her drive 15 to 18 knocked some country raped miles into the and there her. Defendant Barker was convicted by third-degree sexual con- duct, 750.520d; 28.788(4), MCL MSA and was sen- to two concurrent prison tenced terms Slayton months. Defendant was convicted of kid- napping, acquitted of any criminal sexual conduct, proba- and was sentenced to five years tion, six months of which were to be spent prison. Slayton appeals right.

Defendant as of Defen- granted was delayed appeal. dant Barker These appeals have been consolidated for review Court.

Defendants raise a of for our number issues consideration. One merits discussion —their claim that the in instructing trial court erred the asportation kidnapping. on the element of The trial judge instructed the as follows: * * *

"During confinement, the course of the defen- dants must forcibly have moved the victim or cause[d] place her to be moved from one to another for the purpose you of abduction. If the evidence convinces beyond a reasonable doubt there was movement purpose and it was either for the of abduction of the her, rape victim or to this is for the element sufficient of this crime.”

This is the standard instruction asportation an un- where there is a of possibility derlying punishable imprisonment. crime life by 19:1:02; 19:1:01, fn claim CJI see id. 1. Defendants the the instruction is erroneous because allowed 90 [May- 151 asportation finding find by to rape. agree. incidental We Adams, 222, 236; In Court held that to the commission "merely of’ an lesser offense insufficient kidnapping. asportation element satisfy De- holding to situations apply fendants would kidnap- ping. acknowledge split

We in the authority Adams Appeals Court of on the issue of whether involving coequal offenses. situations People Hardesty, rape held that movement of a rape to commission of the was sufficient asportation element satisfy for the Adams panel perceived the rationale prevent gross

rule to "to distortion be lesser crimes into a much more serious crime excess by quoting Id. at 378, prosecutorial zeal”. Miles, supra, quoting People 232, at 527, 913,

NY2d NYS2d 245 NE2d Since, crimes, at time of the both rape punishable were life imprisonment, panel reasoned the ratio- nale for the inapplicable. rule was Worden, hand,

On other 248 NW2d 597 the Court held that movement of an armed victim inci- robbery dental robbery commission was insuffi- kidnap- cient *4 Ross, People ping. 287; See App also v 73 Mich Taft, People v (1977), App 70 Mich 247 NW2d 319 The majority reasoned: " * * * While it is true the Adams Court was People

concerned with capital simple the conversion of a crime into a logic opinion of the goes further and prohibiting is directed to single conversion of a offense into two offenses. Thus it matters not whether single the simple offense is a minor misdemeanor such as capital assault or a felony such as armed rob- bery.” App 71 Mich at 513-514. bolstered,

This position was by saying: " * * * If Adams did not extend to situations involv- ing coequal offenses, reversal and remand for failure to properly instruct on would not have been ordered by Ford, this Court in 47 Mich (1973), 209 NW2d 507 involving rape kidnap- ping, People Leszcznyski, 212 NW2d (1973), involving kidnapping and robbery, armed Behm, People v App 119; 52 Mich 216 NW2d 631 involving kidnapping and robbery, People armed v Cul- pepper, 52 App 121; involv- ing kidnapping and armed robbery. The fact that Court did reverse and remand in each of these cases evinces applicability of Adams in the instant situa- (Footnote omitted.)1 tion.” Id. at 514.

Although in Court made steady reference to the "underlying crime”, lesser quoted (now also approvingly Judge from Jus- tice) Court of Appeals opinion Levin’s where he said: " 'It is assault, obvious that virtually any any battery, any rape, any or robbery involves some "intentional confinement” person of the of the victim. To read the kidnapping statute literally is to convert a misde- meanor, example, assault and battery, into a 1However, subsequent case, Harris, App 161; 80 Mich 262 NW2d 912 "appears the same author wrote that Adams state that degree, viz:—a capital offense, inapplicable.” Adams is at 169. No point reference opposite interpretation was made at that Worden, Adams in 248 NW2d 597 *5 kidnapping statute the reading A literal offense. charges the prosecutor aggravate permit a would assailant, robber, by charging the rapist or against any must kidnapping statute which of the literal violation inevitably accompany ” 389 of those offenses.’ each Adams, People v quoting Mich at 546, (Emphasis supplied.) 560; 192 opinion Adams that thrust of are of the We prevention solely of the is not limited those more seri- of lesser offenses into distortion being prevent ous, one crime from but further rape), (e.g., into two transformed holding and that those decisions represent reasoned the better to approach. offenses perceived by argued danger may It be that prosecutorial zeal, not Adams, is that of excessive capital prevalent in- are as volved, where two offenses as the result be two con- inasmuch would upof life of one.2 current sentences instead multiple certainly sen- true that While is Michigan concurrently,3 it is also in run tences true into capital single offense conversion of by charging offenses two per- only in of the victim results not movement haps up life, an additional concurrent sentence also two chances for conviction instead only possible entirely It one. 2"Indeed, charge Michigan under law there is little reason to robbery or where the movement is incidental to an armed punishable by rape a and both of those offenses are life sentences because sentences, concurrently. Michigan exceptions, run with few all punishable by only less It is where other sentence likely than whether movement life there is to be issue separate constituted the commission of that offense kidnapping.” fn crime of omitted.) (Cross-reference otherwise, providing all In the absence of a statute sentences Practice, Michigan concurrently. Michigan Criminal run 8A Law & Law, 714, p 390. § by Danhof, charge underlying

acquit on the reason, For the latter. but convict on zeal” is prosecutorial equally danger of "excessive present. therefore, find, improp- the lower court

We element the asportation instructed the erly evi- is substantial kidnapping. Although there *6 finding of nonincidental support jury dence to Worden, supra, at 515-516, movement, People v see therein, erroneous cited the trial court’s and cases our requires jury removal of the from 238-239, supra, at As stated reversal. necessary to sus- when nonincidental movement conviction, is a tain a alleged fact for the whether jury say "It is not for the Court was incidental. found, if the issue had been would have so submitted to it.” other al- examined defendants’ three

We have find them to be leged grounds for reversal without merit. and remanded for new trial.

Reversed J., Maher, R. M. concurred. (dissenting).

Danhof, The majority C.J. I dissent. ques- has in this case. misperceived the issue asporta- tion is not what is the definition of best tion, into a much a court read but how should than legislative go I no further enactment. would Court, remaking gone has "kidnapping” statute. Hardesty,1 v I would follow

Accordingly, position do not 1 I would note the cases cited to the Worden bolster support. really proposition they Ford, each In stand for the were cited to cited, 420; App 47 209 507 case Mich People People App Leszczynski, 255 212 NW2d Behm, 631 this Court Mich judge remanded for failed to instruct retrial because the trial Mich by Danhof, Hardesty 241 NW2d substantially incorporated has been into the Stan- dard Jury Criminal Instructions. CJI Compare 19:1:01 with 19:1:02. The Supreme urged Court has all members of the bench and bar to use the standard instructions. Adm Order No Mich lxxii asportation. coequal the element of While each case involved offenses, reflect, reflect, rightly asporta- the decisions always kidnapping, tion is an element of unless some nonmovement supplies necessary element such as secret confinement alternative asportation. e.g., People Leszczynski, supra, They See at 557. do asportation always not further hold means nonincidental movement. upon Each case directed retrial the should be instructed on the required” "as or "as mandated” Adams. On instructed, retrial of those cases the should been have as Adams mandates, kidnapping, that movement is an essential element of underlying coequal movement incidental to an offense is sufficient. Moreover, longer I would note it is no clear that Worden even enjoys support by Judge of its author. Worden was authored subsequent Harris, In case 80 Allen. (1977), Judge "appears NW2d 912 Allen wrote that Adams to state degree,

that where the viz:—a inapplicable.” Adams is Id. 169. No reference was made at point opposite interpretation of Adams in Worden.