People v. Ross, Docket No. 21608

• Decision Date: 06 January 1977
• Docket Number: Docket No. 21608
• Citation: 73 Mich.App. 287,251 N.W.2d 268
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas Lee ROSS, Defendant-Appellant. 73 Mich.App. 287, 251 N.W.2d 268
• Court: Court of Appeal of Michigan — District of US

Page 268

251 N.W.2d 268

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas Lee ROSS, Defendant-Appellant.

Docket No. 21608.

73 Mich.App. 287, 251 N.W.2d 268

Court of Appeals of Michigan.

Jan. 6, 1977.

Released for Publication March 18, 1977.

[73 MICHAPP 288] Meade, Magill, Rumsey & DeLoof, by Robert F. Magill, Jr., Ann Arbor, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William F. Delhey, Pros. Atty., for plaintiff-appellee.

Before BRONSON, P. J., and BEASLEY and ANDERSON, ^* JJ.

PER CURIAM.

Defendant appeals as of right from his convictions for armed robbery, M.C.L.A. § 750.529; M.S.A. § 28.797, and kidnapping, M.C.L.A. § 750.349; M.S.A. § [73 MICHAPP 289] 28.581, by a jury verdict on May 29, 1974. He was sentenced to life imprisonment on each count, and appeals.

Late in the evening of December 9, 1973, a black, well-dressed male rang the doorbell of the home of an Ann Arbor restaurant owner and said that he wished to use the phone because his car had broken down. After gaining entry and making the call, the man drew a pistol on the victim, and two confederates, one of whom was identified as the defendant, entered wearing nylon stocking masks and carrying pistols. The victim and his wife were tied and gagged, and the victim pistol-whipped. After the home was ransacked, two of the intruders forced the victim, still bleeding from head wounds, to accompany them to his restaurant, while the third confederate remained behind to guard the wife. At his restaurant, the victim opened the safe and gave the money to the men. An extensive ride through the city followed, during which a gun was pointed at the victim's head much of the time. He finally escaped. Defendant, at the time of his arrest, was wearing blue jeans which were bloodstained. The blood was not his own and was of the same type as the victim's. Defendant claimed that he exchanged his pants with another man for $200.00 and was not at the scene of the crime but was with a friend. His friend was also apprehended with the money taken from the safe and was also convicted of these charges at a separate trial. Other circumstantial evidence at trial also implicated both men.

On appeal, defendant contends that the trial court improperly instructed the jury as to the asportation element of kidnapping. We agree.

In People v. Adams, 389 Mich. 222, 234-235, 238, 205 N.W.2d 415 (1973), our Supreme Court held [73 MICHAPP 290] that asportation was an essential element of the offense of kidnapping. It also said that the jury must consider whether the movement of the victim, if any, was "merely incidental" to the commission of another lesser underlying crime. The Court also said that if the movement added either a greater danger or a threat thereof, that was a factor in considering whether the movement constituted the necessary legal asportation.

In this case, rather than instructing the jury that they might consider the danger or threat thereof in determining whether the movement was merely incidental to the commission of an underlying crime, the trial judge told the jury that they need not consider whether the movement was merely incidental to the commission of an underlying crime if they were satisfied that the movement added a greater danger or threat thereof to the victim. Although the trial judge instructed that, if the jurors did not find greater danger or the threat thereof, they could not convict unless the movement was not merely incidental to the commission of the robbery, we perceive a departure from the Adams decision.

The Court in Adams emphasized that the crucial criterion was whether the movement was merely incidental to the commission of the other crime, and stated that the increased danger element was a "factor" for the jury's consideration. Citing cases from New York and California, the Court also emphasized that the fact of increased danger or complicated movement of the victim illustrated the distinction between a kidnapping and movement incidental to another crime.

In the case at bar the trial judge essentially charged that the jury could find kidnapping without determining that the movement was more [73 MICHAPP 291] than incidental to a robbery. The charge equated greater danger with nonincidental movement....