People v. Barker

• Citation: 307 N.W.2d 61,411 Mich. 291
• Decision Date: 19 June 1981
• Docket Number: Nos. 3,63503,4,Docket Nos. 63359,s. 3
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. James Hayden BARKER and Claude Amos Slayton, Jr., Defendants-Appellees. PEOPLE of the State of Michigan, Plaintiff-Appellant, v. James Allan LYNN, Defendant-Appellee. Calendar411 Mich. 291, 307 N.W.2d 61
• Court: Supreme Court of Michigan

Page 61

307 N.W.2d 61

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. James Hayden BARKER and Claude Amos Slayton, Jr.,

Defendants-Appellees.

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. James Allan LYNN, Defendant-Appellee.

Docket Nos. 63359, 63503.

Calendar Nos. 3, 4.

411 Mich. 291, 307 N.W.2d 61

Supreme Court of Michigan.

June 19, 1981.

William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Principal Atty., Appeals, A. George Best, II, Asst. Pros. Atty., Detroit, for plaintiff-appellant.

Bell & Hudson, P. C. by Lester D. Hudson, Detroit, for defendant-appellee, Slayton.

FITZGERALD, Justice.

We granted leave to appeal in these cases to decide whether, in a prosecution for kidnapping and first-degree criminal sexual conduct, the trial court erred reversibly in instructing that the asportation element of kidnapping would be satisfied if the jury found the movement of the victim to be incidental to the commission of the underlying coequal ¹ offense of first-degree criminal sexual conduct. 407 Mich. 902 (1979).

We hold that the trial courts erred in instructing the jurors that asportation of the victims that is incidental to the commission of the sexual offense is sufficient to satisfy the asportation element of the kidnapping charge. We adopt the pertinent statement of facts in the Court of Appeals opinions.

I. PEOPLE v. BARKER

"Defendants were each charged with one count of kidnapping, M.C.L. § 750.349; M.S.A. § 28.581, and one count of first-degree criminal sexual conduct, M.C.L. § 750.520b(1); M.S.A. § 28.788(2)(1). Each crime is punishable by any term of imprisonment up to life. The complainant charged that defendants forced her into their automobile, knocked her unconscious, drove some 15 to 18 miles into the country and there raped her.

"Defendant Barker was convicted by a jury of kidnapping and third-degree criminal sexual conduct, M.C.L. § 750.520d; M.S.A. § 28.788(4), and was sentenced to two concurrent prison terms of 18 months. Defendant Slayton was convicted of kidnapping, but acquitted of any criminal sexual conduct, and was sentenced to five years of probation, six months of which were to be spent in prison." People v. Barker, 90 Mich.App. 151, 282 N.W.2d 266 (1979).

Defendant Slayton appealed as of right. Defendant Barker was granted a delayed appeal. Their appeals were consolidated for review by the Court of Appeals.

On appeal, the Court of Appeals reversed the kidnapping convictions of both defendants, holding that the trial court committed reversible error by instructing the jury that they could satisfy the required asportation element of kidnapping by finding the existence of movement that is merely incidental to the offense of criminal sexual conduct.

The Court opined that the rule set forth in People v. Adams, 389 Mich. 222, 236, 205 N.W.2d 415 (1973), ² is not limited solely to the prevention of the distortion of lesser offenses into those more serious, but to further prevent one crime from being transformed into two (e. g., kidnapping and rape), and that those decisions holding Adams applicable to coequal offenses represent the better reasoned approach.

II. PEOPLE v. LYNN

"On June 22, 1977, defendant was found guilty of one count of kidnapping, M.C.L. § 750.349; M.S.A. § 28.581, and one count of first-degree criminal sexual conduct, M.C.L. § 750.520b; M.S.A. § 28.788(2). On July 7, 1977, he was sentenced to concurrent terms of life imprisonment. Defendant now appeals as of right.

"At trial, Tammy Trombley, the 101/2-year-old complainant, testified that on the night of February 24, 1977, she was home with her 13-year-old brother. At approximately 8:30 p. m., a man, later identified as defendant, came to their apartment and asked to use the phone. After obtaining admittance to the premises he brandished a knife and took some money from the complainant's brother. The complainant's preliminary examination testimony, which was read at trial, also established that the defendant had also taken a ring from the apartment.

"The complainant testified that after the robbery defendant carried her to a nearby apartment. At this time he forced her to engage in fellatio and unsuccessfully attempted to engage in sexual intercourse with her." People v. Lynn, 91 Mich.App. 117, 283 N.W.2d 664 (1979).

The Court of Appeals reversed defendant's conviction of kidnapping and remanded for a new trial because the trial court erroneously charged the jury that the asportation needed to establish the kidnapping charge could be incidental to the commission of first-degree criminal sexual conduct.

III

We note disagreement among Court of Appeals panels on the issue of whether the asportation element required for kidnapping may be incidental to another offense when the punishment for that offense is equal to that for kidnapping. ³

In People v. Adams, 389 Mich. 222, 205 N.W.2d 415 (1973), we upheld the constitutionality of the Michigan kidnapping statute, M.C.L. § 750.349; M.S.A. § 28.581. The problem we confronted was expressed in Judge Levin's analysis in People v. Otis Adams, 34 Mich.App. 546, 560-561, 192 N.W.2d 19 (1971):

"It is obvious that virtually any assault, any battery, any rape, or any robbery involves some 'intentional confinement' of the person of the victim. To read the kidnapping statute literally is to convert a misdemeanor, for example, assault and battery, into a capital offense. A literal reading of the kidnapping statute would permit a prosecutor to aggravate the charges against any assailant, robber, or rapist by charging the literal violation of the kidnapping statute which must inevitably accompany each of those offenses.

"Just as it is obvious that the Legislature did not intend the kidnapping statute to expose virtually every other crime against the person to capital sanctions, so too it is obvious that the language of the statute provides no standards for determining who shall be punished for its violation."

The solution to cure the over-breadth of the statute was to interpolate the requirement of asportation. As to this requirement, we held:

"(T)he movement element must not be merely incidental to the commission of a lesser underlying crime, i. e., it must be incidental to the commission of the kidnapping." 389 Mich. 222, 236, 205 N.W.2d 415.

Our decision in Adams served to prevent the escalation of charges from a lesser offense to a greater capital offense by requiring the jury to find asportation or its equivalent in order to find the accused guilty of the separate crime of kidnapping. A similar concern exists when the underlying crime is coequal as to its punishment. ⁴

Adams established the rule that movement, to be sufficient to meet the asportation requirement for kidnapping, must not be "merely incidental" to an underlying lesser offense, "it must be incidental to the commission of the kidnapping".

When it is necessary to find asportation in order to find guilt of kidnapping, it must be shown to be movement having significance independent of any accompanying offense. A course of movement incidental to both a kidnapping and another offense could be of such quality and character as to supply the asportation element of kidnapping.

In Adams we recognized that finding movement sufficient to satisfy the asportation element is a complex determination. To aid the factfinder in making this determination we set forth factors to be considered. ⁵ In cases where a defendant has chosen to be tried by a jury, the following declaration expressed in Adams applies:

" 'Jurors are the sole judges of the facts and neither the trial court nor this court can interfere with their exercise of that right.' People v. Miller, 301 Mich. 93, 100 (3 N.W.2d 23) (1942). And in People v. Putnam, 323 Mich. 374, 379 (35 N.W.2d 279) (1948), Justice Boyles stated, 'It is not the province of the Court to usurp the proper functions of the jury in determining issues of fact. It is not for the Court to say that the jury would have so found, if the issue had been submitted to it.' " 389 Mich. 222, 238-239, 205 N.W.2d 415.

The jury instructions given in these cases allowed the jury to infer the required asportation element for kidnapping from movement which is merely incidental to the underlying crime. Essentially, the instructions directed that if the jury found there was movement either for the purpose of kidnapping of the victim or to commit the crime of criminal sexual conduct, this would be sufficient for the asportation element of kidnapping. This instruction did not inform the jury that asportation for the purpose of kidnapping was essential, and served to usurp from their province the necessity of finding that crucial element.

We hold that it was reversible error for the trial courts in these cases to instruct the jury that the asportation element of kidnapping would be satisfied if the jury found the movement of the victim to be incidental to the commission of the underlying coequal offense of first-degree criminal sexual conduct. In all cases where the charge is kidnapping, except as noted in Adams, in order to find defendant guilty, the factfinder must be satisfied that there was movement sufficient to satisfy the asportation requirement or its equivalent. Where applicable, the asportation element is crucial, regardless of the length of punishment mandated by the Legislature. To hold otherwise would be to assert that the over-breadth problem we confronted in Adams is immaterial in cases where another serious crime is committed.

Our holding does not preclude the possibility of the concurrent commission of first degree criminal sexual conduct and kidnapping. A properly instructed jury could find under the facts of a particular case, for example, that movement of the rape victim was sufficient to satisfy the requisite asportation element for a kidnapping conviction.

We affirm the Court of Appeals in both of these cases. ⁶

COLEMAN, C. J., and MOODY and WILL...