People v. Vaughn

• Decision Date: 19 July 1993
• Docket Number: Docket No. 132045
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Derrick Terrance VAUGHN, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 41

505 N.W.2d 41

200 Mich.App. 611

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Derrick Terrance VAUGHN, Defendant-Appellant.

Docket No. 132045.

Court of Appeals of Michigan.

Submitted April 6, 1993, at Lansing.

Decided July 19, 1993, at 9:15 a.m.

Released for Publication Sept. 23, 1993.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Robert E. Weiss, Pros. Atty., Donald A. Kuebler, Chief, Appellate Div., and Philip C. Elliott, Deputy Chief Asst. Pros. Atty., for the People.

Earl R. Spuhler, Fenton, for defendant-appellant on appeal.

Before RICHARD ALLEN GRIFFIN, P.J., and REILLY and FITZGERALD, JJ.

REILLY, Judge.

Defendant was convicted after a jury trial of one count of criminal sexual conduct in the first degree, M.C.L. § 750.520b(1)(c); M.S.A. § 28.788(2)(1)(c), and one count of kidnapping, M.C.L. § 750.349; M.S.A. § 28.581. He subsequently pleaded guilty to being a second-felony habitual offender, M.C.L. § 769.10; M.S.A. § 28.1082, and was sentenced to concurrent terms of forty to sixty years of imprisonment. Defendant now appeals his convictions and sentence as of right. We reverse.

Defendant was charged with and convicted of committing criminal sexual conduct by sexual penetration under circumstances involving the commission of another felony. M.C.L. § 750.520b(1)(c); M.S.A. § 28.788(2)(1)(c). The other felony was kidnapping. The information in this case provided, with regard to the kidnapping charge, that defendant

[d]id willfully, maliciously and without lawful authority, forcibly or secretly confine or imprison [complainant] within this State against her will OR did kidnap [complainant] with the intent to cause her to be secretly confined or in any way held to service against her will; contrary to MCL 750.349; MSA 28.581. ¹

I

Defendant argues that there was insufficient evidence to support his convictions because there was insufficient evidence presented with regard to asportation. He also argues that reversal is required because the trial court failed to properly instruct the jury on the elements of kidnapping.

When a defendant is charged with the forcible confinement part of the kidnapping statute, the following elements must be proven beyond a reasonable doubt:

(1) a forcible confinement of another within the state,

(2) done wilfully, maliciously and without lawful authority,

(3) against the will of the person confined or imprisoned, and

(4) an asportation of the victim which is not merely incidental to an underlying crime unless the crime involves murder, extortion or taking a hostage. Asportation incidental to these crimes is sufficient asportation for a kidnapping conviction. [People v. Wesley, 421 Mich. 375, 388, 365 N.W.2d 692 (1984).]

In People v. Adams, 389 Mich. 222, 236, 205 N.W.2d 415 (1973), the Supreme Court held that "the 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." In People v. Barker, 411 Mich. 291, 307 N.W.2d 61 (1981), the Court held that the Adams rule applied in cases, such as this one, where the underlying crime is coequal in punishment.

We conclude that sufficient evidence was presented so that a rational jury could find beyond a reasonable doubt that the movement of the victim in this case was not "merely incidental" to the sexual assault. See People v. Gwinn, 111 Mich.App. 223, 243-244, 314 N.W.2d 562 (1981), and People v. McNeal, 152 Mich.App. 404, 411, 393 N.W.2d 907 (1986). Nevertheless, we conclude that defendant's convictions must be reversed because the jury instructions in this case were insufficient to inform the jury that the essential element of asportation of the victim could not be merely incidental to the underlying crime of criminal sexual conduct.

The trial court instructed the jury with regard to kidnapping as follows:

Now, in conjunction with that under Count II, he is charged with the kidnapping and, as I've explained to you, the criminal sexual conduct comes about with the kidnapping being a factor in it because that's one of the elements that's described in the statute for it to become criminal sexual conduct in the first degree.

But, separately and apart from that, they have charged him with kidnapping, and here's what they have to say about that: The prosecution, of course, must prove these elements beyond a reasonable doubt, as they must with respect to all charges as brought: He's charged with the crime of kidnapping....

... These are the elements the prosecution must prove beyond a reasonable doubt: First, that the victim as described here must have been forcibly confined or imprisoned; second, the victim must have been so confined or imprisoned against her will and without lawful authority; next, during the course of such confinement the defendant must have forcibly moved or caused the victim to be moved from one place to another for the purpose of abduction and kidnapping.

In determining whether or not the movement was for the purpose of kidnapping, you may consider whether the movement was for a few feet or for a substantial distance, [and] that at the time of the confinement the defendant must have intended to kidnap the victim.

Jury instructions are reviewed as a whole rather than extracted piecemeal to establish error. Even if somewhat imperfect, there is no error if the instructions fairly presented the issues to be tried and sufficiently protected the defendant's rights. People v. Wolford, 189 Mich.App. 478, 481, 473 N.W.2d 767 (1991). However, the instructions to the jury must include all elements of the crime charged. Upon finding that a judge failed to inform a jury of the true nature of the offense charged, we may not countenance claims of "harmless error," but must reverse. People v. Butler, 413 Mich. 377, 386-387, 319 N.W.2d 540 (1982); People v. Curry, 175 Mich.App. 33, 39, 437 N.W.2d 310 (1989).

Defendant in this case did not object to the jury instructions as given by the trial court. ² Accordingly, relief will not be granted in the absence of manifest injustice. People v. Van Dorsten, 441 Mich. 540, 544-545, 494 N.W.2d 737 (1993).

In People v. Thompson, 117 Mich.App. 522, 324 N.W.2d 22 (1982), this Court held that a similar instruction was insufficient to convey the essential point that the asportation could not be merely incidental to the charged criminal sexual conduct. ³ The defendant in that case, like the defendant in this case, did not object to the instruction. Nevertheless, the Court found that because the defendant had a right to a jury determination of all the essential elements of the offense charged, the failure to adequately instruct the jury with regard to the essential element of asportation was error requiring reversal. Id. at 525, 324 N.W.2d 22. However, another panel of this Court has found that the same instruction was sufficient to satisfy the requirement of Adams and Barker. People v. Alexander, 118 Mich.App. 112, 116, 324 N.W.2d 550 (1982).

In light of the Supreme Court's ruling in Wesley that "asportation of the victim which is not merely incidental to an underlying crime, unless the crime involves murder, extortion or taking a hostage" is an element of the offense of kidnapping, we believe that Thompson is the better-reasoned opinion and choose to follow it.

We conclude that manifest injustice would result in this case and that reversal is required because the trial court did not adequately inform the jury of an essential element of the offense of kidnapping. Wesley, supra; Thompson, supra. The trial judge failed to effectively communicate that the element of asportation needed to establish kidnapping involves movement of the victim that is not merely incidental to the commission of the coequal crime of criminal sexual conduct. See Butler, supra, 413 Mich. at 389, 319 N.W.2d 540.

Although we reverse defendant's convictions on this ground, we will review the other issues raised by defendant to provide guidance on retrial.

II

We reject defendant's argument that his constitutional rights were violated when he was subjected to the taking of a second sample of pubic hair. The trial court in this case issued an order requiring defendant to submit samples of his blood, saliva, and head and pubic hair. Defendant does not challenge the validity of this order. Rather, he argues that it was improper for the police, upon the request of an evidence technician, to take a second sample of pubic hair.

Initially, we note that defendant apparently did not move to suppress the evidence obtained from the second sample and did not object to the testimony of the evidence technician in this case. Generally, we will not review an issue raised for the first time on appeal. However, if an important constitutional question is involved and is decisive to the case, appellate review is appropriate. People v. Newcomb, 190 Mich.App. 424, 431, 476 N.W.2d 749 (1991).

After reviewing the record, we conclude that the issue of the second hair sample taken from defendant is not decisive. At the time the second sample was taken, there was a court order requiring defendant to submit to such a procedure. We do not believe that the police action in taking another sample on the basis of the request of an evidence technician was an abuse of the court's order or an effort to harass defendant. See People v. Rankins, 81 Mich.App. 694, 265 N.W.2d 792 (1978). Furthermore, the evidence technician's testimony established that it was a hair taken from defendant's head in the first sample that matched a hair found on the victim's shirt.

We also reject defendant's argument that the testimony of a police witness that defendant had refused to cooperate in giving the hair samples was improper. Without addressing the merit of this claim, we note that the police officer's testimony was elicited by defense counsel during cross-examination. Accordingly, defendant cannot now be heard to...