People v. Brown

Decision Date07 April 1981
Docket NumberDocket No. 46103
Citation306 N.W.2d 392,105 Mich.App. 58
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Freddy Lee BROWN, Defendant-Appellant.
CourtCourt of Appeal of Michigan — District of US

James R. Neuhard, State Appellate Defender, P. E. Bennett, Asst. State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James Norlander, Pros. Atty., John H. MacFarlane, Asst. Pros. Atty., for plaintiff-appellee.

Before R. B. BURNS, P. J., and MacKENZIE and KALLMAN, * JJ.

MacKENZIE, Judge.

On March 30, 1979, defendant was convicted by a jury of two counts of first-degree criminal sexual conduct (CSC), M.C.L. § 750.520b; M.S.A. § 28.788(2), and one count of kidnapping, M.C.L. § 750.349; M.S.A. § 28.581. He received three concurrent terms of 20 to 40 years and appeals as of right.

Complainant testified at trial that at approximately 2:30 a. m. on September 29, 1978, while on her way home from work at a bar, after picking up her son at the babysitter's house, a car pulled along the side of her car. The driver honked his horn, flashed his lights, showed complainant what she thought was a police badge, and said, "Police, pull over". Complainant testified that both cars pulled over and that the man, whom she later identified as defendant, approached the open window of her car and asked her to produce some identification. Complainant stated that the man suddenly pulled a handgun, grabbed her keys from the ignition, and ordered complainant and her son out of the car.

According to complainant, defendant, still holding the gun on her and her son, backed them toward the rear of his car and opened the trunk. She stated that when she screamed and begged defendant not to put them in the trunk, defendant grabbed her around the neck, put his fingers down her throat, and threw her in the trunk on top of her son.

Complainant stated that defendant locked the trunk and had driven for about 25 minutes when she felt the car stop and heard the motor being turned off. She heard defendant get out, approach the trunk, and state that no harm would befall her if she did what he requested; he then told her to close her eyes and he opened the trunk and put something over her eyes.

Complainant testified that defendant led her and her son into a house where he tied one of her socks around her eyes. She said she could not see through the blindfold. Complainant stated that she was sitting on a couch and defendant "shoved his penis into my face and said I got something here for you". Complainant said she pleaded with defendant not to make her "do this in front of my son". Defendant then told her to kneel on the floor with her arms on the couch and then penetrated her vagina with his penis. According to complainant, defendant forced her to lie on a blanket on the floor, got on top of her, and again inserted his penis into her vagina. Complainant testified that she was shaking after the second time, told defendant she was cold, and asked him if she could put her clothes on. Complainant said defendant replied "No, I'm not done with you yet", and took her to another room where there was a heater. She said he put the blanket down and penetrated her vagina with his penis two more times. After promising defendant that she would not tell anyone about the incident, complainant persuaded defendant to allow her to put her clothes on and to drive complainant and her son home.

She testified that at no time after initially being forced into the trunk at gunpoint did she see the gun because she was blindfolded or had her eyes closed. However, complainant testified that she submitted to the sexual acts only because defendant said he would kill her otherwise and she believed her life, as well as her son's life, was in danger.

Defendant initially argues that the trial court's instructions erroneously failed to inform the jurors that if they found that the element of asportation transporting the victim in a kidnapping case was merely incidental to the crime of CSC, they should find defendant not guilty of kidnapping. Failure to request such an instruction or to object to its omission does not preclude review as it pertains to an essential element of the crime of kidnapping. People v. Adams, 389 Mich. 222, 205 N.W.2d 415 (1973). The trial court instructed as follows on the elements of kidnapping:

"First, the victim * * * must have been forcibly confined or imprisoned. Second, the victim must have been so confined or imprisoned against her will without lawful authority. Third, during the course of such confinement, the Defendant must have forcibly moved the victim, or caused her to be moved from one place to another for the purpose of abduction and kidnapping. If the evidence convinces you beyond a reasonable doubt that there was a movement and that it was either for the purpose of abduction of the victim, or to commit sexual penetration, this is sufficient for this element of the crime. Fourth, at the time of such confinement the Defendant must have intended to so kidnap or confine the victim. Fifth, at the time of such confinement, the Defendant must have been acting willfully and maliciously. Willfully and maliciously means that the Defendant intentionally confined the victim, knowing such confinement to be wrong and that he did so without legal justification or excuse".

We agree that People v. Adams, supra, held that to establish asportation sufficient for kidnapping, the movement must not be merely incidental to an underlying lesser crime. 389 Mich. 222, 236, 238, 205 N.W.2d 415. Also, the Supreme Court in Adams determined this was a fact question for the jury. This Court has held the jury must be instructed if they are to find defendant guilty of kidnapping, they must first find, in addition to the other elements, that the movement was not merely incidental to the commission of the "underlying" offense. People v. White, 89 Mich.App. 726, 729, 282 N.W.2d 200 (1979), People v. Barker, 90 Mich.App. 151, 154-155, 282 N.W.2d 266 (1979), People v. Lynn, 91 Mich.App. 117, 123-125, 283 N.W.2d 664 (1979), lv. gtd. 407 Mich. 902 (1979). Thus, it was error for the trial court to instruct that it was sufficient if the jury found the evidence showed the asportation was "either for the purpose of abduction of the victim, or to commit sexual penetration".

In reaching this conclusion, we are aware of the split in this Court on the applicability of Adams to coequal offenses, such as CSC charged herein. Compare People v. Hardesty, 67 Mich.App. 376, 378, 241 N.W.2d 214 (1976), lv. den. 397 Mich. 875 (1976), with People v. Worden, 71 Mich.App. 507, 248 N.W.2d 597 (1976). This issue is presently before the Michigan Supreme Court in People v. Lynn, supra. We agree with the Worden analysis that the impact of Adams was to prevent conversion of a single offense into two separate offenses and, therefore, hold that Adams applies to coequal offenses. Accord, People v. Lynn, People v. White, and People v. Barker, supra. Thus, due to the court's failure to instruct the jury as required by Adams, defendant's kidnapping conviction must be reversed.

Defendant may not, however, be retried on both the kidnapping charge and first-degree CSC during the felony of kidnapping because conviction on both counts is barred by the double jeopardy clause 1 on the facts at bar. In proving the charged CSC, it was necessary for the prosecutor to prove the elements of kidnapping in order to elevate the CSC charge to the first degree.

In Brown v. Ohio, 432 U.S. 161, 166, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), the United States Supreme Court reversed the defendant's conviction for auto theft following his guilty plea to the misdemeanor of joyriding based on the same incident, holding that:

"The established test for determining whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment was stated in Blockburger v. United States, 284 U.S. 299, 304 (52 S.Ct. 180, 182, 76 L.Ed. 306) (1932):

'The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not....'

"This test emphasizes the elements of the two crimes. 'If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes....' Iannelli v. United States, 420 U.S. 770, 785 n.17 (95 S.Ct. 1284, 1294 n.17, 43 L.Ed.2d 616) (1975)".

Applying the Blockburger test in Brown, the Court concluded that the lesser offense, joyriding, required no proof beyond that required for conviction of auto theft, and that, therefore, the subsequent auto theft conviction violated defendant's right against twice being placed in jeopardy for the same offense.

A case more similar factually with the instant case is Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977), where the Court reversed defendant's conviction of armed robbery in a trial held after his conviction of felony murder based on that same robbery:

"When, as here, conviction of a greater crime, murder, cannot be had without conviction of the lesser crime, robbery with firearms, the Double Jeopardy Clause bars prosecution for the lesser crime after conviction of the greater one. In re Nielsen, 131 U.S. 176 (9 S.Ct. 672, 33 L.Ed. 118) (1889); cf. Brown v. Ohio, 432 U.S. 161 (97 S.Ct. 2221, 53 L.Ed.2d 187) (1977). '(A) person (who) has been tried and convicted for a crime which has various incidents included in it, ... cannot be a second time tried for one of those incidents without being twice put in jeopardy for the same offence.' In re Nielsen, supra, (131 U.S.) at 188 (9 S.Ct. at 676). See also Waller v....

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6 cases
  • People v. Robideau
    • United States
    • Michigan Supreme Court
    • September 18, 1984
    ...of both penetration under circumstances involving any other felony and the underlying "other felony" of kidnapping. 105 Mich.App. 58, 306 N.W.2d 392 (1981). We granted leave to appeal. 412 Mich. 864 (1981). Randall Dale Griffin was convicted of first-degree criminal sexual conduct and kidna......
  • State v. Boozer
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    ...circumstances we believe the legislative intention was that each assault should be deemed an additional offense. In People v. Brown, 105 Mich.App. 58, 306 N.W.2d 392 (1981), the Court of Appeals of Michigan upheld a conviction of two counts of criminal sexual conduct based on two acts of va......
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    • Court of Appeal of Michigan — District of US
    • August 29, 1988
    ...during the same criminal transaction. The relationship with these two cases is referenced by this Court in People v. Brown, 105 Mich.App. 58, 69, 306 N.W.2d 392 (1981), aff'd 419 Mich. 458, 355 N.W.2d 592 In Brown, the armed defendant kidnapped the complainant and sexually penetrated her fo......
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    • Court of Appeal of Michigan — District of US
    • September 22, 1982
    ...372, 269 N.W.2d 467 (1978); People v. Peete, 102 Mich.App. 34, 301 N.W.2d 53 (1980), lv. den. 411 Mich. 962 (1981); People v. Brown, 105 Mich.App. 58, 306 N.W.2d 392 (1981); People v. Bouknight, 106 Mich.App. 798, 308 N.W.2d 703 (1981); People v. Clement Anderson, 111 Mich.App. 671, 314 N.W......
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