People v. Vaughn

505 N.W.2d 41, 200 Mich. App. 611
CourtMichigan Court of Appeals
DecidedJuly 19, 1993
DocketDocket No. 132045
StatusPublished
Cited by6 cases

This text of 505 N.W.2d 41 (People v. Vaughn) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Vaughn, 505 N.W.2d 41, 200 Mich. App. 611 (Mich. Ct. App. 1993).

Opinions

Reilly, J.

Defendant was convicted after a jury trial of one count of criminal sexual conduct in the first degree, MCL 750.520b(l)(c); MSA 28.788(2)(1) (c), and one count of kidnapping, MCL 750.349; MSA 28.581. He subsequently pleaded guilty to being a second-felony habitual offender, MCL 769.10; MSA 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 pen[613]*613etration under circumstances involving the commission of another felony. MCL 750.520b(l)(c); MSA 28.788(2)(l)(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 [614]*614merely 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 NW2d 692 (1984).]

In People v Adams, 389 Mich 222, 236; 205 NW2d 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 NW2d 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 NW2d 562 (1981), and People v McNeal, 152 Mich App 404, 411; 393 NW2d 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 n, 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.
[615]*615But, 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 confínement 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 conñnement 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 NW2d 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 NW2d 540 (1982); People v Curry, 175 Mich App 33, 39; 437 NW2d 310 (1989).

Defendant in this case did not object to the jury [616]*616instructions 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 NW2d 737 (1993).

In People v Thompson, 117 Mich App 522; 324 NW2d 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 [617]*617the essential element of asportation was error requiring reversal. Id. at 525. 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 NW2d 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.

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Bluebook (online)
505 N.W.2d 41, 200 Mich. App. 611, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-vaughn-michctapp-1993.