People v. White, Docket No. 77-3980

• Decision Date: 01 May 1979
• Docket Number: Docket No. 77-3980
• Citation: 89 Mich.App. 726,282 N.W.2d 200
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Vandalyn Ray WHITE, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 200

282 N.W.2d 200

89 Mich.App. 726

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Vandalyn Ray WHITE, Defendant-Appellant.

Docket No. 77-3980.

Court of Appeals of Michigan.

May 1, 1979.

Released for Publication Aug. 22, 1979.

Townsend, Haley & Overton by Leonard Townsend, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, App. Chief, Asst. Pros. Atty., for plaintiff-appellee.

Before RILEY, P. J., and J. H. GILLIS and MacKENZIE, JJ.

RILEY, Presiding Judge.

Defendant was convicted of one count of armed robbery, M.C.L. § 750.529; M.S.A. § 28.797, and one count of kidnapping, M.C.L. § 750.349; M.S.A. § 28.581, and two counts of first-degree criminal sexual conduct, M.C.L. § 750.520b; M.S.A. § 28.788(2). He was sentenced to serve 10 to 16 years in prison for each count, the sentences to run concurrently.

On appeal, defendant raises two issues, only one of which merits our consideration. He contends that the trial court erred reversibly by failing to instruct the jury properly regarding the asportation element of kidnapping.

In pertinent part, the court instructed the jury as follows:

"One kind of kidnapping requires the prosecutor to prove, beyond a reasonable doubt, that there was a seizure and a movement of a person to another place where the intent in that circumstance is to actually confine a person against his or her will. In that circumstance the prosecutor must prove it was a seizure and some actual movement, some actual asportation. The purpose of that asportation must be the confinement."

In People v. Adams, 389 Mich. 222, 236, 238, 205 N.W.2d 415 (1973), the Court held that to establish asportation sufficient for kidnapping, the movement must not be merely incidental to an underlying lesser crime. Inasmuch as the Court pointed out that this was a fact question for the jury to decide, this holding mandates that the jury be instructed that to find a defendant guilty of kidnapping they must first find, in addition to other elements, that the movement was not "merely incidental". People v. Thomas Ross, 73 Mich.App. 287, 290, 251 N.W.2d 268 (1977). The court in the present case failed to comply with this requirement. Failure to give a proper instruction, even in, as here, the absence of a request by defense counsel, requires reversal. People v. Curry, 58 Mich.App. 212, 216, 227 N.W.2d 254 (1975).

The prosecution argues that Adams, supra, applies only to those instances where the prosecutor attempts to escalate a minor crime into a felony, and concludes that since this defendant is charged with four capital offenses, the basis, as they perceive it, for the Adams holding does not exist here. However, our reading of Adams persuades us that the interpretation found in People v. Worden, 71 Mich.App. 507, 248 N.W.2d 597 (1976), is correct. The thrust of Adams is to prevent one crime from being transformed into two offenses (E. g., kidnapping and rape). "Thus it matters not whether the single offense is a minor misdemeanor, such as simple assault, or a capital felony such as armed robbery". Worden, supra at 513-514, 248 N.W.2d at 600.

It is argued further that the Adams instruction does not apply to a kidnapping which involves forcible or secret confinement. Therefore, since under the Information here the defendant was so charged, and since there was testimony to support the charge, it purportedly follows that the court was under no duty to instruct as to asportation. But here again, while the Adams Court noted that secret confinement could supply a necessary Alternative to asportation it cautioned that this was a fact determination to be made by the jury. Adams, supra 389 Mich. at 238-239, 205 N.W.2d 415.

In instructing the jury here, the court set forth two theories under which the defendant could be found guilty: the complainant had been abducted by ...