People v. Vaughn

524 N.W.2d 217, 447 Mich. 217

• Court: Michigan Supreme Court
• Decided: August 31, 1994
• Docket: 97279, (Calendar No. 11)
• Status: Published

Opinions

Brickley, J.

This appeal requires us to determine whether, in a prosecution for kidnapping and first-degree criminal sexual conduct, the trial court erred in failing to adequately instruct the jury that asportation necessary for kidnapping must not be merely incidental to commission of the underlying offense of first-degree criminal sexual conduct, and that reversal is required. While we would hold that the trial court did err, because the instructional error was harmless beyond a reasonable doubt, we find no actual prejudice to defendant and, accordingly, would reverse the decision of the Court of Appeals.

i

FACTS

On the evening of September 24, 1989, complainant and a friend met the defendant at a Flint tavern. At approximately 1:40 a.m., after sharing some drinks and dancing, defendant asked the complainant to accompany him to a local party store. Complainant agreed to the excursion and joined defendant in his car.

At the store, defendant purchased some alcohol and glasses. Returning to the car, he poured drinks for himself and complainant. After leaving the store, complainant gave defendant the address of a friend and asked to be dropped off at that location. Complainant also asked to be returned to the tavern. Disregarding these requests, defendant drove to a gas station. While defendant remained in the automobile, complainant tried to use an outside pay phone to call for a ride, but was too nervous to remember any phone numbers. Reentering the automobile, complainant repeated her request to be dropped off either at her friend’s home or at the tavern.

Again disregarding complainant’s plea, defendant drove to a nearby parking lot, where he rolled a marijuana cigarette. After instructing complainant to take a "hit,” defendant smoked some of the marijuana himself and then drove onto the 1-69 expressway. After again asking to be returned either to her friend’s home or the tavern, defendant told complainant that he needed to visit a friend’s home. Upon learning this, complainant opened the door and tried to flee the moving vehicle. Grabbing her arm, defendant pulled the complainant back into the vehicle, slammed the door shut, and struck complainant in the head.

After traveling along the expressway for approximately twenty minutes, defendant arrived at his friend’s home and began changing the oil in his car. According to complainant, this task took approximately fifteen to twenty minutes. Upon completion, defendant returned to the vehicle where he grabbed the complainant and ripped off her coat and sweater. Complainant fled from the car and began running down the road. Defendant followed in his automobile, catching up with her at a home some blocks away. Defendant got out of the vehicle, ran to the complainant, and punched her twice in the head. Defendant then grabbed complainant by the arm, lifted her off the ground, and forced her back into the car.

Defendant now drove directly to a motel. Already having a key to the room, he did not check in at the main office. Defendant told complainant that she could use the telephone in the room, but, upon entering, she discovered that the room did not have a telephone. Recognizing that she had been tricked, she tried to leave, but defendant locked the door and would not let her depart.

Defendant instructed complainant to sit on the bed and to undress, which she did. Complainant struck the defendant with an ashtray, and he responded by striking her in the face, knocking her off the bed. Defendant then threw the complainant back onto the bed and raped her. Defendant later drove the complainant to a local school where he dropped her off. According to complainant, defendant left her at the school just before dawn, approximately between 5:00 and 6:00 a.m.

Defendant was charged with first-degree criminal sexual conduct, penetration occurring in connection with the commission of a felony and with the separate offense of kidnapping. The prosecutor proceeded under theories of (1) actual forcible or secret confinement, and (2) forcible confinement with intent to secretly confine complainant or hold her in service against her will. MCL 750.349; MSA 28.581; see also People v Wesley, 421 Mich 375, 383; 365 NW2d 692 (1984). After a lengthy jury trial, at the close of evidence, both the prosecutor and defense counsel submitted jury instructions to the trial judge. Defendant’s submission was based on CJI2d 19.1, which the trial judge accepted. After instructing the juiy on both the kidnapping and first-degree esc charges, the trial judge inquired if counsel had any corrections or comments pertaining to the instructions. Both the prosecutor and defense counsel expressed agreement with the instructions given. Defendant was subsequently found guilty of both charges and, after pleading guilty of being an habitual (second) offender, was sentenced to concurrent forty- to sixty-year terms.

Defendant appealed and argued, inter alia, that there was insufficient evidence of the asportation element to support his convictions. Defendant did not raise in the Court of Appeals his current challenge of the jury instructions. Rejecting defendant’s sufficiency of the evidence claim, the Court of Appeals concluded:

[S]ufficient -evidence was presented so that a rational juiy could find beyond a reasonable doubt that the movement of the victim in this case was not "merely'incidental” to the sexual assault. [200 Mich App 611, 614; 505 NW2d 41 (1993).]

Notwithstanding this conclusion, the Court of Appeals went on to reverse defendant’s separate kidnapping conviction because it deemed the trial court’s jury instructions insufficient to convey the essential point that the asportation necessary for kidnapping could not be merely movement incidental to commission of the esc. This failure to adequately inform the jury about an essential element of kidnapping, the Court of Appeals reasoned, resulted in manifest injustice and required reversal. Id. at 614-617.

Because this kidnapping had served as the underlying felony for defendant’s csc-i and habitual offender convictions, the Court of Appeals reversed the jury verdict on these counts as well.

On January 4, 1994, we granted the prosecutor’s application to appeal. 444 Mich 913.

ii

A

It is well established that forcible-confinement kidnapping requires proof of asportation taken in furtherance of kidnapping and not merely movement incidental to the commission of an underlying offense. Wesley, supra at 388.¹ This essential element of asportation applies if the underlying offense is a coequal or lesser crime. See People v Barker, 411 Mich 291; 307 NW2d 61 (1981) (coequal offenses); People v Adams, 389 Mich 222; 205 NW2d 415 (1973) (lesser offenses) (hereinafter Adams I). These rules pertaining to asportation have been incorporated into both the first and the second editions of the standard Criminal Jury Instructions. See CJI 19:1:01; CJI2d 19.1.

The importance of this distinction between asportation for kidnapping and movement incidental to an underlying offense cannot be overemphasized. As this Court explained in Wesley, because " 'virtually any assault, any battery, any rape, or any robbery involves some "intentional confinement,” of the person of the victim,’ ” Wesley, supra at 385, quoting People v Adams, 34 Mich App 546, 560; 192 NW2d 19 (1971), a forcible confinement kidnapping charge may be used by the prosecutor to "elevate[ J a common-law misdemeanor to an offense punishable by life imprisonment.” 421 Mich 385. To avoid this potential problem, this Court has specifically demanded that the prosecution prove asportation unique to the commission of kidnapping. Adams I, supra at 237-238. This burden of proof, of course, means little if a jury is not informed of it. Accordingly, it is erroneous not to properly instruct regarding this essential element of asportation. Similarly, it is erroneous to instruct the jury in such a way that it may find the asportation element satisfied by movement not incidental to kidnapping but, instead, merely incidental to commission of a coequal offense such as first-degree esc. Such an instruction circumvents the express demands of Adams I.,, Barker, and Wesley, and exposes the kidnapping statute to potential charges of unconstitutionality. Adams I, supra at 237-238.

B

It is equally well established that the criminal defendant has a right to have a properly instructed jury consider the evidence presented against him. See, e.g., People v Liggett, 378 Mich 706, 714; 148 NW2d 784 (1967); People v Visel, 275 Mich 77, 81; 265 NW 781 (1936). This prerogative emanates from a criminal defendant’s right under the federal and state constitutions to a fair trial by jury,² and is entrusted, as an initial matter, to the able trial judges of this state, whose general duty to properly instruct is specifically mandated by MCL 768.29; MSA 28.1052:

The court shall instruct the jury as to the law applicable to the case and in his charge make such comment on the evidence, the testimony and character of any witnesses, as in his opinion the interest of justice may require.[³]

Under the common law of this state, trial judges are responsible for insuring that cases are presented to juries in an intelligent manner so that the jurors have a clear and correct understanding of what it is they are to decide. See, e.g., People v Martin, 392 Mich 553, 562; 221 NW2d 336 (1974); People v Townes, 391 Mich 578, 587; 218 NW2d 136 (1974); People v Allen, 109 Mich App 147, 158-159; 311 NW2d 734 (1981). This responsibility demands that the trial judge instruct a jury regarding the general features of a case, define the offense, and explain what must be proven to establish that offense. Liggett, supra at 714. Where the instruction pertains to an essential element of the charged offense, the trial judge’s duty to ade7 quately instruct must be adhered to even absent a request from counsel. Id.4 Failure to recognize these instructional responsibilities may demand reversal where an erroneous or misleading charge denies a criminal defendant the right to have a properly instructed jury consider the evidence. See People v Petrella, 424 Mich 221, 277; 380 NW2d 11 (1985); People v Pepper, 389 Mich 317, 322; 206 NW2d 439 (1973); Visel, supra at 81; Liggett, supra at 714; People v MacPherson, 323 Mich 438; 35 NW2d 376 (1949).

hi

We agree with the Court of Appeals that the jury instructions given here were erroneous insofar as they failed to adequately explain that forcible-confinement kidnapping demands asportation incidental to the kidnapping, and not movement merely incidental to commission of the coequal offense of first-degree esc.

A.

We first address appellant’s argument that defendant’s challenge to the jury instructions is not properly before this Court because defendant did not object to the instructions at trial. This Court has recently reaffirmed the general rule that "issues . . . not properly raised before a trial court cannot be raised on appeal absent compelling or extraordinary circumstances.” People v Grant, 445 Mich 535, 546; 520 NW2d 123 (1994). This general rule applies specifically to alleged instructional errors occurring at trial. See, e.g., People v Van Dorsten, 441 Mich 540, 544-545; 494 NW2d 737 (1993) (citing cases). Absent an objection to the instruction, appellate review and relief will only be granted when necessary to avoid manifest injustice to the defendant. See Petrella, supra at 276; People v Woods, 416 Mich 581, 610; 331 NW2d 707 (1982).

However, it is aiso well established in our jurisprudence that where an erroneous jury instruction pertains to an essential element of an offense, a contemporaneous objection to the instruction is not required to preserve the issue for appeal. See, e.g., Liggett, supra at 714 (failure to object or request a correct instruction pertaining to the identity of defendant); see also Allen, supra at 159; People v Ashford, 91 Mich App 693; 283 NW2d 830 (1979); People v Price, 21 Mich App 694, 697-698; 176 NW2d 426 (1970). Accordingly, while defendant admittedly failed to object to those instructions ultimately given by the trial judge, because defendant’s present appeal goes directly to that portion of the jury instructions that pertain to asportation—i.e., an essential element of forcible-confinement kidnapping—his failure to object at trial does not preclude appellate review of the instructional issue raised here.⁵

B

At the conclusion of trial, defense counsel submitted and requested a standard criminal jury instruction for kidnapping.⁶ Defendant’s request was based on CJI2d 19.1, the model instruction for kidnapping where an underlying offense other than murder, extortion, or hostage-taking has also been charged. This standard jury instruction reads, in pertinent part, as follows:

Third, that while he was confining [name complainant], the defendant forcibly moved or caused [name complainant] to be moved from one place to another for the purpose of kidnapping. If [name complainant] was moved as part of a crime other than kidnapping, this is not enough. In this case, for instance, you should consider whether [name complainant] was moved for the purpose of kidnapping or as part of the crime of__In determining whether [name complainant] was moved for the purpose of kidnapping, you may consider how far [name complainant] was moved and whether being moved added any greater danger or threat to [name complainant] than the crime of__[Name complainant] must have been moved for the purpose of kidnapping and this movement must have been independent of the other crime. [CJI2d 19.1(4). Emphasis added.]

Accepting this proffered instruction, the trial judge instructed the jurors regarding the penetration-related elements of esc and accurately explained the requirement that sexual penetration be shown to have occurred in connection with the commission of a kidnapping. The trial judge then gave a simple description of kidnapping,⁷ and concluded with the following specific instructions on the elements of kidnapping as a separate offense:

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 substantia] distance, that at the time of the confinement the defendant must have intended to kidnap the victim; next, at the time of the confinement the defendant must have been acting willfully and maliciously, willfully and maliciously meaning the defendant intentionally confined the victim knowing such confinement to be wrong, and that he did so without legal justification or ex-cuseF [⁸]

Jury instructions are reviewed as a whole rather than examined piecemeal to establish error. People v Watkins, 178 Mich App 439, 450; 444 NW2d 201 (1989), rev’d on other grounds 438 Mich 627; 475 NW2d 727 (1991). 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. Id.

In this case, the instruction given almost completely failed to introduce or explain that, for purposes of forcible-confinement kidnapping, the essential element of asportation must be based on movement incidental to kidnapping and not merely movement incidental to the underlying offense of first-degree esc. While the trial judge’s instructions were ostensibly based on a standard criminal jury instruction for kidnapping and an underlying offense,⁹ they in fact omitted the following fundamental language referring to the distinction between asportation incidental to kidnapping versus movement incidental to the underlying offense:

Eliminated from CJI 19:1:01 (the instruction actually used):

(4) . . . Such movement is not sufficient if it is part of a crime other than kidnapping. In this case, for instance, you should consider whether the movement was for the purpose of kidnapping or whether it was a part of the crime of_ [or crimes of_and_].

(5) . . . However, the evidence must convince you beyond a reasonable doubt that there was movement independent of the other crime and that it was for the purpose of kidnapping.

Eliminated from CJI2d 19.1 (the instruction requested by defense counsel):

Third . . . [i]f [name complainant] was moved as part of a crime other than kidnapping, this is not enough. In this case, for instance, you should consider whether [name complainant] was moved for the purpose of kidnapping or as part of the crime of-___ . . [Name complainant] must have been moved for the purpose of kidnapping and this movement must have been independent of the other crime.

These are the only direct references in CJI and CJI2d to the essential distinction between asportation incidental to kidnapping versus movement incidental to the underlying offense. Importantly, the remaining two instructions concerning asportation¹⁰ only identify the necessity of asportation intended for kidnapping; these instructions do not explain to the jury that this asportation must not be merely incidental to commission of the underlying offense.

Jury instructions must fairly and adequately apprise the jury of those elements that must be proven, in a criminal case. Asportation is an essential element of a forcible-confinement kidnapping charge, Wesley, supra at 388, and, accordingly, was also a central issue in the instant criminal action. By giving an otherwise standard instruction that eliminated the only language adequately describing asportation, the trial judge effectively eradicated from jury consideration all guidance designed to assist the jury in properly assessing the asportation requirement. Notably, while these deletions were not error per se,¹¹ the trial judge did not replace the expunged information with clear or more accurate instructions and, in fact, gave no substitute instructions regarding asportation.

The practical consequence of the instructions given here was that the jurors did not have a "clear and correct understanding of what it is they are to decide.” See, e.g., Martin, supra at 562. Specifically, it was never explained to the jurors that they had to find asportation incidental to kidnapping and not movement merely incidental to the commission of esc. By failing to make clear this distinction, the trial judge in effect permitted jurors to find the asportation element satisfied by movement merely incidental to the commission of esc. This instruction was incomplete and misleading, and did not adequately explain what must be proven to establish the offense of kidnapping. Liggett, supra at 714; Barker, supra at 301.¹² By failing to adequately instruct on this essential element of kidnapping, the trial judge denied defendant his right to have a properly instructed jury consider all the evidence presented against him. Liggett, supra at 714; Visel, supra at 81.¹³

IV

While we agree with the Court of Appeals that the failure to properly instruct on asportation was error, and that it was not forfeited, the question remains whether this error resulted in prejudice to defendant to the extent that a miscarriage of justice occurred requiring reversal. We turn now to this dispositive issue.

This Court first explained in Woods, supra, that an erroneous instruction regarding an essential element of a criminal offense per se does not mandate a rule of reversal. Specifically, we held:

A per se harmless error rule cannot be justified by quoting the general rule from cases such as People v Visel, 275 Mich 77, 81; 265 NW 781 (1936), that a "[djefendant has a right to have a [properly instructed] jury pass upon the evidence.” Whether an instruction is reversible depends on whether it was prejudicial, and no reasoning or case law suggests that we should now discard that sound approach. [Id. at 600-601. Emphasis added.][¹⁴]

This emphasis on actual prejudice derives directly from Michigan’s "harmless error” statute, which provides in pertinent part:

No judgment or verdict shall be set aside or reversed or a new trial be granted by any court of this state in any criminal case, on the ground of misdirection of the juiy . . . unless in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice. [MCL 769.26; MSA 28.1096. Emphasis added .][¹⁵]

Relying on our decision in Wesley, the Court of Appeals concluded that—despite the existence of evidence sufficient for a rational jury to find the movement of complainant not "merely incidental” to the commission of esc—the instructional error here created manifest injustice requiring reversal. 200 Mich App 617. By neglecting any analysis of prejudice or harmless error, the Court of Appeals in effect created a rule of reversal per se for the instructional error that occurred here. Notably, however, this Court has recently reaffirmed the "harmless error” approach taken in Woods and MCL 769.26; MSA 28.1096, and rejected an automatic reversal rule for erroneous jury instructions on nonessential elements. Specifically, in Grant, supra, we explained that

the failure to give a preliminary instruction on insanity does not require automatic reversal for several reasons. First, automatic reversal would come into direct conflict with MCL 769.26; MSA 28.1096, which orders that judgments or verdicts shall not be reversed absent a miscarriage of justice. . . . Second, other important concerns such as proper iinal histructions to the jury are the subject of harmless-error analysis and are therefore not susceptible to automatic reversal. Absent a. clear legislative directive, we camiot consider the preliminary jury instruction involved here to avoid the more generalized requirement that no judgment or verdict may be reversed absent a miscarriage of justice. [Id. at 543. Emphasis added.J[¹⁶]

We would reaffirm the general approach to instructional error articulated in MCL 769.26; MSA 28.1096, Woods, and Grant, and would reject an automatic reversal rule for erroneous jury instructions regarding an essential element of a criminal offense. Specifically, we reiterate that erroneous jury instructions regarding essential elements may be reviewed for harmless error by utilizing a "prejudice” standard. In the context of an erroneous jury instruction on an essential element, this standard demands that the court assess whether the jury, properly instructed, could have reached a different verdict had the error not occurred.¹⁷

Turning now to the facts of this case, we conclude that because of the overwhelming and unrefuted record evidence indicating that most of complainant’s involuntary confinement and asportation was incidental to kidnapping, and not movement merely for purposes of committing first-degree esc, no actual prejudice resulted from the instructional error that occurred here. Accordingly, we would hold that the error was harmless.¹⁸

B

While complainant initially agreed to accompany defendant for a short trip to a nearby store, the extent of her consent was expressly limited to this brief excursion. Upon his return from the store, complainant made clear to defendant that she no longer wished to accompany him. On numerous occasions thereafter complainant asked defendant to take her to a friend’s home or, alternatively, to return her to the tavern. Defendant refused or ignored each of these requests. Further, complainant tried to telephone for an alternate ride and, on at least two occasions, attempted to physically escape only to be forcibly and violently returned by defendant to the automobile. While the record is not precisely clear on duration and distance, it does appear that complainant was involuntarily and forcibly confined to defendant’s vehicle for a period approximating between one and two hours and for a distance covering many miles.

Similarly, the facts establish that, before forcibly taking complainant to the motel where he eventually raped her, defendant drove complainant to a gas station, to a parking lot, and to a friend’s home for purposes of changing the oil in his car. During this time, defendant consumed both alcohol and marijuana, fraying his senses to such a degree that, according to complainant, he almost struck a telephone pole with his automobile.

From these facts, we derive two conclusions. First, given the nature and duration of complainant’s forcible confinement in defendant’s automobile, no properly instructed juror in this case could have interpreted the facts as indicating asportation merely incidental to first-degree CSC. Defendant’s various stops at a gas station, a parking lot, and a friend’s home—all before moving complainant to the motel where the rape eventually occurred—clearly deviated from any sort of asportation that, on the facts here, could be considered necessary or only incidental to the commission of first-degree esc.¹⁹ Further, defendant certainly did not have to confine complainant in his automobile for approximately one to two hours and many miles in order to later execute this heinous rape in a local motel room.²⁰

In fact, had defendant intended to confine and move complainant solely for the purposes of committing rape, he could have driven directly to the motel. Complainant’s forcible confinement to defendant’s vehicle was asportation incidental exclusively'to kidnapping, and no juror examining this record evidence against the backdrop of proper instructions on asportation could have concluded otherwise.²¹

Second, defendant’s extended asportation of complainant added greater dangers, both actual and threatened, beyond those inherent to a criminal sexual assault. Defendant’s consumption of alcohol and marijuana while operating his vehicle on local roads and a highway significantly increased the likelihood that complainant, and perhaps others, would be involved in a traffic accident. Further, by driving complainant away from alternative crime locations where observation by others was more likely (i.e., the party store, the gas station, the parking lot, and his friend’s home), and to an isolated motel room where the probability of detection was remote and where isolation substantially increased the risk of harm to complainant if she tried to defend herself or escape, defendant placed complainant in greater danger than she otherwise would have been had the crime occurred elsewhere.²² In short, defendant’s irresponsible actions incidental to this kidnapping substantially increased the risk of harm to complainant beyond that otherwise incidental to the rape.²³ The existence of these additional dangers counsels our conclusion that no juror, properly instructed, could determine that complainant’s asportation was solely incidental to first-degree esc.

c

We conclude, therefore, that the crime of forcible-confinement kidnapping both preceded and was complete well before defendant duped complainant into entering his motel room.²⁴ Defendant’s forcible confinement of complainant in his vehicle was beyond a reasonable doubt incidental to the commission of kidnapping. It is clear from these facts that no juror, properly instructed, could have concluded that the extended confinement here was merely incidental to commission of esc. Accordingly, it is also clear that defendant was not prejudiced by the erroneous jury instruction and, therefore, that the trial court’s instructional error was harmless.

For these reasons, the Court of Appeals decision should be reversed and the jury verdict reinstated.

Mallett, J., concurred with Brickley, J.

1 Specifically, forcible confinement kidnapping requires that the prosecutor prove four elements 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 types of crimes is sufficient asportation fora kidnapping conviction. | Wesley, supra at 388. Emphasis in original.]

Defendant lias not challenged the trial court’s instructions on the first three elements, and our review of the record reveals that the instructions given regarding these elements were accurate.

2 Although defendant has not specifically argued that the instructions given here Implicated constitutional protections, we recognize that under both Michigan and federal law the right to a jury determination on all essential elements of a criminal offense Is a prerogative of constitutional import. See US Const, Ams VI, XIV; Const 1963, art 1, § 20. Accordingly, Insofar as the instructions given here erroneously failed to advise the jury of the necessity for separate asportation, we acknowledge this oversight as generally raising an error of constitutional magnitude. This constitutional dimension, of course, distinguishes our holding today from this Court’s recent enunciations in People v Grant, 445 Mich 535; 520 NW2d 123 (1994) (allegations of unpreserved nonconstitutional error), and People v Anderson (After Remand), 446 Mich 392; 521 NW2d 538 (1994) (allegations of preserved nonconstitutional error).

3 This provision also explains that

|t|he failure of the court to instruct on any point of' law shall not be ground for setting aside the verdict of the jury unless such instruction is requested by the accused. |Emphasis added, j

As explained below, see note 6 and the accompanying text, defense counsel expressly requested a standard jury instruction that included explanations that asportation must be incidental to forcible-confinement. kidnapping and not merely to commission of esc. Accordingly, we note that this prerequisite of MCL 768.29; MSA 28.1052 has been satisfied by the defendant here.

4 See also People v Curry, 58 Mich App 212; 227 NW2d 254 (1975) (the existence of asportation is a jury question that must be submitted even absent a request); People v Ford, 47 Mich App 420; 209 NW2d 507 (1973) (the (ailure to charge the jury on the element of asportation is error, even absent a request for such instruction); People v Nash, 47 Mich App 871; 209 NW2d 432 (1973) (the failure to request an appropriate instruction in a kidnapping case does not permit the trial judge to instruct the jury improperly).

5 That the alleged Instructional error pertains to an essential element of the charged offense distinguishes this opinion from Grant, supra. The defendant in Grant failed to preserve an alleged instructional error b,y neither requesting proper instruction nor objecting at trial to the lack of an instruction. Notably, however, Grant did not involve alleged instructional error pertaining to an essential element of an offense but, instead, dealt with a statutory requirement for preliminary instruction on a defense. Because the instructional error in Grant did not concern an essential element, it fell within the general rule demanding preservation of issues for appeal. Conversely, the instructional error alleged here does relate to an essential element of the charged offense and has long been recognized under Michigan law as unique and commanding an exception to the genera) rule requiring preservation.

6 Defense counsel originally submitted instructions based on the first edition of the Criminal Jury Instructions, specifically CJI 19:1:01. Defense counsel subsequently amended this request, on the record, to incorporate the second edition instruction (CJI2d 19.1) into a new request that he then gave to, and that was accepted by, the trial judge.

7 |T/ie Court.| Now, with respect to |kidnapping|, I’m going to explain what kidnapping means. It says in our statute with respect to kidnapping: Any person who shall wrongfully, intentionally and forcibly coniine another person against her will and move her from one place to another or cause her to be moved from one place to another is guilty of the crime. That’s the basic element of kidnapping.

All of these elements must be established by the prosecution with respect to the charges as placed against the defendant.

8 It is clear from both the organization and content of this Instruction that the trial judge based his directions to the jury not on CJI2d 19.1 but, Instead, on CJI 19:1:01, a precursor of CJI2d 19.1, which reads as follows:

(1) The defendant Is charged with the crime of kidnapping. Any person who shall wrongfully, intentionally and forcibly coniine another person against his or her will and move him or her from one place to another or cause him or her to be moved from one place to another is guilty of this crime. The defendant pleads not guilty to this charge. To establish this charge the prosecution must prove each of the following elements beyond a reasonable doubt.

(2) First, the victim, _, must have been forcibly confined or imprisoned.

(3) Second, the victim must have been so confined or imprisoned against his or her will and without lawful authority.

(4) Third, 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. Such movement- is not sufficient if it is part of a crimp other than kidnapping. In this case, for instance, you should consider whether the movement was lor the purpose of kidnapping or whether it was a part of the crime of -|or crimes of_and_].

(5) 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 whether it added any greater danger or threat to the victim than the crime of__However, the evidence must convince you beyond a reasonable doubt that there was movement independent of the other crime and that it was for the purpose of kidnapping.

(6) Fourth, at the time of such confinement the defendant must have intended to kidnap the victim.

(7) Fifth, at the time of such confinement the defendant must have been acting wilfully and maliciously. Wilfully and maliciously means that the defendant intentionally confined the victim, knowing such confinement to be wrong, and that |he/ . she] did so without legal justification or excuse. |CJI 19:i:01. Emphasis added. |

The emphasized sections note those instructions not included in the trial court’s actual instruction to the jury in this case. See also infra at 232-233.

Irrespective of which standardized instruction the trial judge utilized, however, for the reasons detailed herein, the instruction actually given erroneously failed to explain the essential distinction between asportation incidental to kidnapping, and movement merely for the commission of first-degree esc.

9 See n 8.

10 Namely, that "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,” CJI 19:1:01(4), and that "at the time of such confinement the defendant must have intended to kidnap the victim.” CJI 19:1:01(6); see also the trial judge’s actual instructions to jury.

11 See n 13.

12 We note, however, that with respect to the remainder of the instructions given by the trial judge there is no allegation of error, nor does our review of the record indicate that any error occurred. .Therefore, with the exception of the instructional fault detailed herein, the instructions actually given were fair and accurate in all other respects.

13 We emphasize to the bench and bar that our ruling is not a demand that the standard jury instructions be literally adhered to in any given case. The Michigan Criminal Jury Instructions do not have the ollicial sanction of this Court, Petrel in, supra, and their use is not mandatory but, instead, remains discretionary with the capable trial judges of this state. Id. Nothing in this opinion should be interpreted as limiting in any way the proper exercise of judicial discretion when instructing a jury. Trial judges remain free to use all or part of those standardized instructions that they deem proper for adequately instructing a jury, and should not hesitate to modify or disregard a standard instruction when presented with a clear or more accurate instruction. Id.; People v Dykhouse, 418 Mich 488; 345 NW2d 150 (1984).

In short, it was not error per se for the trial judge here to delete the aforementioned standardized instructions pertaining to incidental asportation. However, because the actual instructions did not properly inform the juty of its duty to find asportation not merely incidental to the commission of esc, in this limited but important respect the instructions were misleading and erroneous.

14 See also People v Thinel, 429 Mich 859, 859-860; 412 NW2d 923 (1987) ("An instruction that removes from the jury the right to consider freely an element of the crime can be a harmless error”).

15 A "prejudice” standard for constitutional harmless error analysis finds considerable support in past and recent case law from this Court. See Woods, supra at 600 ("The circumstances of |two prior cases| were examined to determine if the erroneous instructions were on elements essentia/ to those cases, i.e., was the instruction prejudicial to that defendant? Thus, the traditional harmless error analysis was applied”) (emphasis added and in original); People v Robinson, 386 Mich 551, 562; 194 NW2d 709 (1972) (explaining that the "manifest injustice” requirement is simply a requirement for showing prejudice, articulating two-pronged test for harmless error); People v Nichols, 341 Mich 311, 332; 67 NW2d 230 (1954) ("the rule always in effect in Michigan . . . has been and is that the question of reversal is controlled by determination of whether the error was prejudicial”).

Kecently, this Court recognized that the Robinson two-part inquiry is strikingly similar to the federal constitutional test announced in Chapman v California, 386 US 18; 87 S Ct 824; 17 L Ed 2d 705 (1967), and Arizona v Fulminante, 499 US 279; 111 S Ct 1246; 113 L Ed 2d 302 (1991), but determined that the test applies to constitutional, not nonconstitutional, errors. Having carefully considered this multitude of Michigan case law, we believe our articulation of harmless error herein to be manifestly consistent with these prior decisions.

16 Again, we recognize that the instant case is markedly different from Grant, supra, and Anderson, supra, insofar as it involves an error with constitutional implications that is not subject to traditional preservation requirements. Nevertheless, we note that á "prejudice” standard for harmless error is well established in Michigan law for assessing instructional infirmities pertaining to an essential element of a criminal offense. Like the Court in Woods, we see "no reasoning or case law [to] suggest . . . that we should now discard that sound approach.” Woods, supra at 601. Because a rule of automatic reversal is antithetical to this admittedly ''sound approach,” like the Court in Grant we find significant merit for rejecting it here.

17 Insofar as the instructional error here violated defendant’s federal constitutional rights, see n 2, we note that our harmless error standard for constitutional error squares with that approach taken by our brethren in the federal courts. As this Court recently explained in Anderson, n 2 supra at 404-407, the United States Supreme Court has enunciated a two-part harmless error inquiry for constitutional infirmities. This test is discussed below.

Under Arizona v Fulminante, n 15 supra, a court must first determine whether a harmless error analysis is even applicable to the constitutional violation. In this regard, the Fulminante Court has distinguished between "trial errors” and "structural errors.” Trial errors, involve "error which occurred during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt.” Id. at 307-308. Conversely, structural errors "are structural defects in the constitution of the triad mechanism, which defy analysis by 'harmless-error’ standards.” Id. at 309. The key point, for purposes of the instant case, is that constitutionally-infirm instructional error was categorized in Fulminante as generally being "trial error” subject to harmless-error analysis.

Notably, this categorization is consistent with other United States Supreme Court cases addressing instructional error. See Sullivan v Louisiana, 508 US —; 113 S Ct 2078; 124 L Ed 2d 182, 190 (1993) (an erroneous "reasonable doubt” instruction demanded reversal because instruction implicated the entire jury verdict; however, the Court affirmed Rose v Clark, 478 US 570, 579; 106 S Ct 3101; 92 L Ed 2d 460 [1986], and intimated that jury instructions generally remain subject to harmless-error analysis as "trial errors”); Pope v Illinois, 481 US 497, 503; 107 S Ct 1918; 95 L Ed 2d 439 (1987) (the Court concluded that "if a reviewing court concludes that no rational juror, if properly instructed, could [conclude otherwise], the convictions should stand”); Rose, supra at 579 (the Court concluded that while a jury instruction was unconstitutional, in absence of error rendering trial fundamentally unfair—such as the denial of the right to counsel or trial before a financially interested judge—the conviction should be affirmed "[w]here a reviewing court can find that the record developed at trial establishes guilt beyond a reasonable doubt”). See also Chapman v California, n 15 supra (general proposition that constitutional errors do not automatically require reversal of a conviction).

Second, and assuming that the infirmity is a "trial error” subject to harmless-error analysis, the beneficiary of this error must prove "beyond a reasonable doubt that there is no ' "reasonable possibility that the evidence complained of might have contributed to the conviction.” ’ ” Anderson, n 2 supra at 406 (quoting Chapman, n 15 supra at 23).

18 The concurring opinion explains that "[i]f the facts, as alleged, ■ are found by the jury to have occurred beyond a reasonable doubt, the movement is, as a matter of law, not merely incidental to a separate, coequal charge of forcible-confinement, false-imprisonment kidnapping.” Post at 247. From this premise, the opinion ultimately concludes that—because the jury found asportation facts sufficient to support a kidnapping conviction—it was not error to exclude those instructions that directed the jury to find this asportation independent of any movement incidental to commission of esc. I disagree.

The rationale upon which this concurring opinion proceeds—i.e., juror factfinding on asportation sufficient to convict of kidnapping—is an approach based fundamentally on postinstruction jury proceedings. While under the microscope of retrospective analysis it may accurately be said that the jury found facts sufficient for conviction, and that it properly applied these facts to reach a kidnapping conviction, it is certainly accurate that the deliberative process that resulted in both the facts and the verdict is one significantly directed by jury instructions. Facts are neither deduced nor applied in a vacuum. The deliberative process of a jury sails fundamentally with the winds of a trial judge’s instructions. To say, therefore, that a jury’s ultimate factual conclusions justify a prior instructional decision ignores the simple truth that the jury’s findings may have been prejudicially affected by that decision. The end does not justify the means. Facts and verdicts procured under the spectre of prior instructional error cannot be, and should not be, later inverted to sanction that error. Such an intrinsically circular approach is taken by the concurring opinion.

Seldom are the implications of instructional error more potentially prejudicial than in those cases in which the prosecutor proceeds under the approach utilized in the instant case. Here, the prosecutor charged defendant with both kidnapping and esc. Kidnapping was used to elevate the second charge to csc-i. To convict under both counts, the prosecutor had to ñrst prove kidnapping; without a valid kidnapping conviction, csc-i was legally impossible. While the charges are therefore separate, the factual basis and legal conclusions for the first (kidnapping) must have been deduced before the second (csc-i) could even be considered.

Potential difficulties arise, however, where the kidnapping and esc charges are based inextricably on a continuous set of facts. If a jury must find kidnapping as a prerequisite to convicting of csc-i, it must also be instructed to first separate out from the collective offense those facts necessary for a preliminary kidnapping analysis. The necessity for distinct fact finding and analysis is conveyed to a jury via instructions such as CJI 19:1:01 and CJI2d 19.1. Such instructions inform the jury to not "mix” facts when arriving at a kidnapping determination—to separate any asportation incidental to the esc, and only consider that movement incidental to kidnapping. Lack of such an instruction, even on "clear” facts such as these, permits jurors to mix their analysis for determinations, which, by definition, must otherwise be kept separate. In effect, the jury is permitted to do that which the Adams Court sought to prevent prosecutors from accomplishing: convicting defendants for two offenses in cases in which the facts only support one.

19 At least three foreign courts have considered a defendant’s superfluous movement of a esc victim as one factor to be considered in determining if a kidnapping conviction is valid. See, e.g., United States v Peden, 961 F2d 517 (CA 5, 1992) (the defendant’s asportation of the victim away from the area where they initially met, and subsequent detention of the victim for half an hour, went beyond that necessarily inherent in rape and supported the kidnapping conviction); Daniels v State, 274 Ind 29; 408 NE2d 1244 (1980) (a separate kidnapping conviction was proper where the defendant drove the rape victim around back roads without her consent and where the victim finally had to escape by jumping from the vehicle); State v Newman, 326 NW2d 788 (Iowa, 1982) (the kidnapping conviction was valid where the defendant transported the victim several miles to various places, used physical force on at least two occasions to thwart escape efforts, and threatened the victim before actually raping her). These cases are cited for purposes of illustration only. Nothing in this citation shall be construed as indicating that this Court has adopted the findings—asportation or otherwise—of these foreign courts.

20 Numerous foreign courts have considered the distance and duration of a esc victim as one factor to be considered in determining if a kidnapping conviction is valid. See, e.g., State v Perry, 116 Ariz App 40; 567 P2d 786 (1977) (the record supported the conviction of armed rape and armed kidnapping where the defendant refused to let the complainant out of his car and drove her out of town before committing rape); People v Neal, 37 Ill App 3d 713; 346 NE2d 178 (1976) (the kidnapping conviction was proper where the victim was forcibly confined to the automobile for two and one-half hours before being raped); People v Henderson, 36 Ill App 3d 355; 344 NE2d 239 (1976) (a separate kidnapping conviction was valid where the victim was confined in a vehicle for at least an hour); People v D’Angelo, 166 AD2d 662; 561 NYS2d 83 (1990) (the kidnapping and rape convictions were proper where the defendants drove the victim for several hours before committing rape); State v Williams, 308 NC 339; 302 SE2d 441 (1983) (a separate conviction for kidnapping was proper where the defendant restrained the victim for several hours in her home before committing rape); State v Swaggerty, 15 Or App 343; 515 P2d 952 (1973) (the asportation was sufficiently extensive to support kidnapping where the defendant drove away with the victim, later returned and changed vehicles, and drove to two motels before committing rape); State v Taylor, 562 A2d 445 (RI, 1989) (where the defendant removed the child from her home and asportated the victim several houses away, prosecution for kidnapping and sexual assault was proper because the movement was more than otherwise necessary to commit sexual assault); State v St Cloud, 465 NW2d 177 (SD, 1991) (the prosecution for both rape and kidnapping was proper where the defendant forced the victim to drive five miles to an isolated area before raping her); State v Trail, 174 W Va 656; 328 SE2d 671 (1985) (the defendant could be convicted of both kidnapping and rape where he led the victim three miles into the woods before raping her). Again, these cases are cited for purposes of illustration only. Nothing herein shall be construed as indicating that this Court has adopted the findings—asportation or otherwise—of these foreign courts.

21 Again, we note that our harmless error standard, and the conclusion it necessitates here, are consistent with federal court precedent. See Rose, n 17 supra, Pope, n 17 supra. Like the United States Supreme Court in Fulminante, n 15 supra, and Sullivan, n 17 supra, we appraise the instructional error that occurred here to be a "trial error” susceptible to harmless-error analysis. However, unlike the instructional error in Sullivan, which involved the decision-making process of the jury generally and, accordingly, which invalidated all its findings and conclusions, the erroneous instruction given here simply involved an element of the criminal offense. Therefore, the erroneous lack of instruction given in this case says little or nothing about the jury’s factfinding or deliberative processes generally. See Sullivan, n 17 supra, 124 L Ed 2d 190.

Further, and as alluded to by the Court in Sullivan, the error that occurred here was more akin to that challenged in Rose, n 17 supra. While the jury in Rose was erroneously instructed to presume malice from predicate facts, it still had to find the existence of those underlying facts beyond a reasonable doubt. Sullivan, n 17 supra, 124 L Ed 2d 190. Similarly, to find defendant guilty of kidnapping, the jury in this case had to (and did) conclude that some fact of asportation had actually taken place. The finding of this predicate fact (asportation generally) is, given the unique facts of this case, so closely linked to' the ultimate fact (separate asportation) that the jury’s finding of asportation is, we believe, the "functional equivalent” of a finding of separate asportation. Id.

22 At least four foreign decisions have considered the effect that a defendant’s actions had upon the level of danger to which a esc victim was exposed. See also People v Hunter, 19 Cal App 3d 336; 97 Cal Rptr 29 (1971) (the asportation of the victim approximately three miles in an automobile subjected the victim to a greater risk of harm than that normally incident in rape or robbery); People v Powell, 716 P2d 1096 (Colo, 1986) (asportation in a vehicle, before rape, substantially increased the risk of harm to the victim); State v Tucker, 317 NC 532; 346 SE2d 417 (1986) (conviction for kidnapping is proper where the defendant’s asportation of the victim away from vehicle and for some distance before sexual assault had the effect of ensuring that the passersby would not witness or hinder in the commission of rape and thus increased the danger to the victim beyond that normal in a sexual assault); State v Whittington, 318 NC 114; 347 SE2d 403 (1986) (same conclusion). These cases are cited for illustration only. Their citation shall not be construed as indicating that this Court has adopted the findings—asportation or otherwise—of these foreign courts.

23 Various foreign decisions have considered how a defendant’s actions in removing a esc victim to a place of greater isolation increased the risk of harm beyond that normally incident to esc. See, e.g., Yescas v People, 197 Colo 379; 593 P2d 358 (1979) (asportation from a public building to concealed privacy of hedges and trees twenty feet away, coupled with striking the victim in the face, substantially increased the risk of harm to the victim such as to support a separate kidnapping conviction); Beck v United States, 402 A2d 418 (DC App, 1979) (a separate kidnapping conviction was proper where the asportation into a private home lessened the likelihood of interference by passersby or neighbors, thus increasing the risk of harm beyond that normal to rape); Bush v State, 526 So 2d 992 (Fla App, 1988) (asportation by force and violence to a location that made it easier to commit rape and that decreased likelihood of detection supported a separate kidnapping conviction); State v Folck, 325 NW2d 368 (Iowa, 1982) (the evidence was sufficient for a separate kidnapping conviction where the complainant was taken to a secluded spot where the detection was unlikely and the remoteness substantially increased the risk of harm if the complainant sought to defend herself or escape); State v Jackson, 703 SW2d 30 (Mo App, 1985) (the kidnapping conviction was proper where the victim was taken from the parking lot to an abandoned home, thus increasing the defendant’s ability to prolong the assault because of the decreased chance of being observed and because it was more difficult for the complainant to escape); Tucker, n 22 supra (a kidnapping charge was proper where the defendant dragged the victim down river and under a bridge so that passersby would not witness or hinder the commission of rape); State v Woodall, 182 W Va 15; 385 SE2d 253 (1989) (a separate kidnapping conviction was proper where the victims were driven miles from the place of abduction to a deserted area, thus increasing the risk of greater physical harm). Again, these cases are cited for illustration only. Nothing herein shall be construed as indicating that this Court has adopted the findings—asportation or otherwise—of these foreign courts.

24 One Michigan Court, and at least two foreign courts, have concluded that, under certain facts, the crime of kidnapping may be completed before a esc offense occurs. See, e.g., People v Santana, 139 Mich App 484; 363 NW2d 702 (1984) (the crime of kidnapping is separate from, and completed before, the commission of rape where the defendants forced the complainant into the car, drove away, and subsequently refused to let her leave before the rape); State v Burchett, 107 Ariz 185; 484 P2d 181 (1971) (where the defendant .lured the child away from the yard and into the car, then drove to a nearby alley where the rape took place, the crime of kidnapping preceded and was complete before the rape took place); State v Ware, 63 Ohio St 2d 84; 406 NE2d 1112 (1980) (separate convictions for kidnapping and rape were proper where the defendant deceptively induced the victim to accompany him to a home where she was promised use of telephone, and where the complainant was later forced to move to another area of the home for purposes of rape). We note these two foreign cases for purposes of illustration only. Nothing in this citation shall be construed as indicating that this Court has adopted the findings—asportation or otherwise—of these foreign courts.