People v. Jones

• Decision Date: 21 August 1979
• Docket Number: Docket No. 77-2784
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert JONES, Jr., Defendant-Appellant. 92 Mich.App. 100, 284 N.W.2d 501
• Court: Court of Appeal of Michigan — District of US

Page 501

284 N.W.2d 501

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert JONES, Jr., Defendant-Appellant.

Docket No. 77-2784.

92 Mich.App. 100, 284 N.W.2d 501

Court of Appeals of Michigan.

Aug. 21, 1979.

Released for Publication Nov. 9, 1979.

[92 MICHAPP 102] James R. Neuhard, State App. Defender by Janet M. Tooley, Asst. [92 MICHAPP 103] State App. Defender, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Eugene C. Penzien, Pros. Atty., Thomas E. Bock, Asst. Pros. Atty., for plaintiff-appellee.

Before CAVANAGH, P. J., and MAHER and VanVALKENBURG, ^* JJ.

PER CURIAM.

The defendant was charged with four offenses, including kidnapping, M.C.L. § 750.349; M.S.A. § 28.581, breaking and entering an occupied dwelling with intent to commit kidnapping, assault with a gun and assault with a knife. His jury trial resulted in conviction on the kidnapping charge only. Following imposition of a sentence of 10 to 20 years imprisonment, he brings this appeal as of right.

Of the numerous issues brought before this Court on appeal, three call for comment and one mandates reversal of the conviction and remand for a new trial.

The defendant first contends that the evidence presented at trial was insufficient to show an "asportation" of the victim within the meaning of the kidnap statute and that the trial judge therefore was in error in denying the defendant's motion for a directed verdict on this charge.

The standard governing the consideration of a motion for a directed verdict is set forth in 2 Gillespie, Michigan Criminal Law & Procedure (2d ed.), § 632, p. 238:

"The test to be applied on a motion for a directed verdict is not whether the evidence presented proves guilt beyond a reasonable doubt but whether there is any evidence at all on each material element of the offense. If there is, then the trial should proceed to conclusion, at which time the fact finder then decides [92 MICHAPP 104] whether or not the evidence is sufficient to establish guilt beyond a reasonable doubt. An appellate court tests the correctness of the denial of a motion to direct a verdict of acquittal by taking the evidence presented by the prosecution in the light most favorable to the prosecution and deciding if there was any evidence upon which the trier of fact could predicate a finding of guilty. A reviewing court must determine whether that evidence, if credible and believed, would justify a reasonable man in concluding that all elements of the crime were established beyond a reasonable doubt."

The testimony crucial to this matter is that of the victim, Rosemary Mecomber. ¹ Ms. Mecomber testified that she admitted the defendant to her Bay City home on the evening of April 8, 1976. Almost immediately upon admittance, the defendant confronted Ms. Mecomber with an apparent belief in an improper acquaintance between her and her "little friend" Jackson. He placed a knife against her neck, told her to don her coat and leave the home with him, and indicated that "he had witnesses to something, but he didn't say what it was." The defendant told Ms. Mecomber that they would be absent from the home only 15 minutes and allowed her to check on her sleeping children, but threatened to kill her "right there" if she woke them.

Ms. Mecomber stated that she managed to lock the defendant outside the front door of her home and telephone for help before he broke in and pulled the telephone cable from the wall. The defendant then forcibly pulled Ms. Mecomber through the back door, picked up a rifle that was leaning against a fence at the rear of the house and pushed Ms. Mecomber over or under the back [92 MICHAPP 105] fence. She testified that she had not seen the rifle before that time.

Ms. Mecomber accompanied the defendant to a car parked more than one block from her home and rode with him some miles to a deserted farm in Munger. At the farm the defendant ordered Ms. Mecomber to hold a light for him while he put brake fluid in the car. The defendant exhibited erratic behavior and took the rifle from the car and pointed it at her at least twice before she managed to calm him. The pair drove back to Ms. Mecomber's home, stopping one-half block from her house when they observed police gathered there. She gave the defendant a dollar and returned to her home.

The defendant argues that at most this evidence illustrates a traveling "lovers' quarrel" and that the compelled restraint and movement of Ms. Mecomber was "incidental" to the "underlying" or "true" crime of assault.

Disposition of this issue is controlled by People v. Adams, 389 Mich. 222, 205 N.W.2d 415 (1973), in which the Supreme Court noted that the kidnap statute had within it the possibility of converting lesser crimes such as assault into the capital offense of kidnapping due to its broad mandate that an actor must not "confine or imprison" another person against his will. Adopting the observation of this Court in the same case (34 Mich.App. 546, 192 N.W.2d 19 (1971)) that a victim may be confined or imprisoned for the purpose of committing upon him a "lesser" assaultive crime, the Supreme Court adopted Judge Levin's requirement that the element of asportation be a confinement or imprisonment having a "significance independent of the assault". 34 Mich.App. at 551. The Supreme Court noted:

[92 MICHAPP 106] "Whether or not a particular movement constitutes statutory asportation or whether there is an appropriate alternative element must be determined from all the circumstances under the standards set out above and is a question of fact for the jury." 389 Mich. at 238, 205 N.W.2d at 423.

In the case at bar, as in Adams, it was proper to submit to the jury the question of what the "true" crime was. The evidence clearly could support a finding of a mere assault; however, contrary to the defendant's contention, it is also capable of supporting a finding that the defendant, intentionally and without justification or excuse, forcibly carried Ms. Mecomber away against her will for purposes which were not merely incidental to or in preparation for his later assaultive behavior. We note that the defendant's initial demand of Ms. Mecomber was that she accompany him away from the house and that he claimed he "had witnesses to something" who were obviously not present with him in Ms. Mecomber's home. It also appears that the defendant had prepared for the trip by placing a rifle near the rear of the house. These facts indicate that the defendant's removal of Ms. Mecomber from her home was not merely incidental to the assault which compelled her compliance with his demand.

The evidence also indicates that at the terminus of his trip with Ms. Mecomber, the defendant again engaged in an assault on her. The defendant refers to cases in which victims have been moved before "lesser" crimes have been committed, and urges this Court to hold that the only possible significance of the compelled trip was to enable this later transaction to be carried out in privacy, citing People v. Hempton, 43 Mich.App. 618, 204 N.W.2d 684 (1972).

It is true that the jury could have found that [92 MICHAPP 107] there was no significance to the trip apart from the later assault. However, this result is not the only one possible. While the unequivocal showing of an "underlying crime" motive will negate the independent significance of an abduction, it is not necessary that some other specific intent be proved in order to accomplish the prosecutorial goal of showing a legally sufficient asportation of the victim. Even if the defendant's purposes in removing Ms. Mecomber from her home were totally unexplained, it would not be impossible or improper for the jury to find that the crime which followed the abduction was not the "true" crime of the evening and did not rob the abduction of its "independent significance". A conviction of kidnapping requires proof of no intent more specific than an intent to confine or imprison another person against his will. See People v. Nodine, 36 Mich.App. 80, 193 N.W.2d 172 (1971). The evidence does not unequivocally show that the defendant's removal of Ms. Mecomber from her home was merely incidental to any other offense; therefore, the motion for a directed verdict was properly denied.

The defendant also claims that the jury instructions concerning the relationship of the assault charges to the asportation requirement of the kidnap charge were confusing and prejudicial.

The instructions of the court cover 44 pages of the transcript. At the outset, the normal and usual instructions were given. Thereafter, the judge meticulously explained each and every element of the various alleged crimes. True, some were repeated, such as the requirement that asportation as an element of kidnapping had to be of independent significance and not merely incidental to any underlying offense or act on the part of defendant, but this was done in order to give the members of [92 MICHAPP 108] the jury a clear understanding of rather complicated principles of law. The jury was told in no uncertain terms that the defendant could not be found guilty of both kidnapping and breaking and entering and that the assault charges could not be considered if there was a finding that they were a part of the kidnapping scheme.

After explaining the elements of kidnapping in detail, the court summarized as follows:

"Repeating then the elements that must be shown in order for there to be kidnapping, first, that Rosemary Mecomber had to be forcibly confined or imprisoned. Second, that she was so confined and imprisoned against her will and without lawful authority, and that confinement was either secret or that there was an asportation or transportation independent of any underlying offense that might have been then ongoing.

"And finally, that at the time the actions were done, that this was done with the intent to kidnap the victim. And finally, that at the time of such...