People v. Barrera

• Citation: 892 N.W.2d 789,500 Mich. 14
• Decision Date: 04 April 2017
• Docket Number: No. 151282,151282
• Parties: PEOPLE of the State of Michigan, Plaintiff–Appellee, v. John Joseph BARRERA, Defendant–Appellant.
• Court: Michigan Supreme Court

500 Mich. 14
892 N.W.2d 789

PEOPLE of the State of Michigan, Plaintiff–Appellee,
v.
John Joseph BARRERA, Defendant–Appellant.

No. 151282

Supreme Court of Michigan.

Decided April 4, 2017

OPINION

Per Curiam.

In this case, we address the proper reading of MCL 777.38, which is Offense

892 N.W.2d 791

Variable (OV) 8. OV 8 states that 15 points are to be assessed 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." MCL 777.38(1)(a). The statute does not define "asported."

In order to define "asportation" as used in MCL 777.38, the Court of Appeals in People v. Spanke , 254 Mich.App. 642, 647, 658 N.W.2d 504 (2003), borrowed from one of its previous opinions, which in turn relied on prior decisions of this Court interpreting the meaning of "asportation" in the context of the term's use as a judicially required element of the crime of kidnapping by forcible confinement or imprisonment. People v. Green , 228 Mich.App. 684, 696–697, 580 N.W.2d 444 (1998), citing People v. Barker , 411 Mich. 291, 299–302, 307 N.W.2d 61 (1981) ; see also People v. Adams , 389 Mich. 222, 236, 205 N.W.2d 415 (1973). Relying on this authority, the Spanke Court concluded that asportation—as an element of kidnapping—required that "there must be some movement of the victim taken in furtherance of the kidnapping that is not merely incidental to the commission of another underlying lesser or coequal crime." Spanke , 254 Mich.App. at 647, 658 N.W.2d 504. Subsequently, this Court and the Court of Appeals have sometimes interpreted this quoted language from Spanke as effectively creating an "incidental movement" exception to OV 8, such that asportation does not occur if the movement is incidental to commission of the offense for which OV 8 is being scored. See, e.g., People v. Thompson , 488 Mich. 888, 788 N.W.2d 677 (2010) ; People v. Dillard , 303 Mich.App. 372, 379, 845 N.W.2d 518 (2013) ; People v. McCreary , unpublished per curiam opinion of the Court of Appeals, issued November 8, 2016 (Docket No. 328373), p 4, 2016 WL 6638841 (asserting that asportation cannot be incidental to committing the underlying offense; instead, it "must facilitate the crime for which the defendant was convicted").

To the extent that Thompson and Spanke have been interpreted to have created an incidental-movement exception to OV 8, we hold that they were wrongly decided and we therefore overrule them. We further conclude that "asported" as used in OV 8 should be defined according to its plain meaning, rather than by reference to our kidnapping jurisprudence. Under the plain meaning of the term "asportation," movement of a victim that is incidental to the commission of a crime nonetheless qualifies as asportation. Accordingly, the trial court in this case correctly scored OV 8 at 15 points.¹

I. FACTS AND PROCEDURAL HISTORY

Defendant was charged with two counts of first-degree criminal sexual conduct (CSC–I), MCL 750.520b, and two counts of second-degree criminal sexual conduct (CSC–II), MCL 750.520c, related to sexual assaults he perpetrated on his wife's granddaughter. Defendant entered into a plea deal under which he pleaded no contest as a fourth-offense habitual offender to the two CSC–II counts and to two added counts of third-degree criminal sexual conduct (CSC–III), MCL 750.520d.

At sentencing, defendant's trial counsel objected to the scoring of OVs 3, 4, 8, 11,

892 N.W.2d 792

and 12.² With respect to OV 8, defendant's counsel insisted that there was no asportation shown in the case. The prosecution responded that the victim was taken into defendant's bedroom, which was a sufficient showing of asportation to merit assessing points for OV 8. The trial court agreed with the prosecution and scored OV 8 at 15 points. The Court of Appeals denied leave to appeal for lack of merit. We directed the Saginaw County Prosecutor to respond to defendant's application and specifically to address whether, under Thompson and Spanke , the trial court erred by scoring OV 8 at 15 points when the movement was incidental to the offense of CSC–II. People v. Barrera , 885 N.W.2d 295 (2016).

II. ANALYSIS

This case presents a question of statutory interpretation, which we review de novo. Krusac v. Covenant Med. Ctr., Inc. , 497 Mich. 251, 255, 865 N.W.2d 908 (2015). When a statutory term is undefined, we give it its plain and ordinary meaning unless it is a term of art. See In re Bradley Estate , 494 Mich. 367, 377, 835 N.W.2d 545 (2013). But terms that " ‘have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning.’ " Id ., quoting MCL 8.3a.

The term "asportation" has a long history in the larceny context. At common law, the elements of larceny included

"(1) an actual or constructive taking of goods or property, (2) a carrying away or asportation, (3) the carrying away must be with a felonious intent, (4) the subject matter must be the goods or personal property of another, (5) the taking must be without the consent and against the will of the owner." [People v. Cain , 238 Mich.App. 95, 120, 605 N.W.2d 28 (1999), quoting People v. Anderson , 7 Mich.App. 513, 516, 152 N.W.2d 40 (1967).]

In that context, the Court of Appeals has long recognized...