People v. Vaughn

447 Mich. 217 (1994) 524 N.W.2d 217

PEOPLE
v.
VAUGHN

Docket No. 97279, (Calendar No. 11).

Supreme Court of Michigan.

Argued April 7, 1994. Decided August 31, 1994.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Arthur A. Busch, Prosecuting Attorney, and Donald A. Kuebler, Chief, Research, Training and Appeals, for the people.

Earl R. Spuhler for the defendant.

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. Re-entering 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 I-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 jury on both the kidnapping and first-degree CSC 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 jury 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 CSC. 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[] 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 CSC. 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 N.W. 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 adequately 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).

III

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 CSC.

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 also 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 CSC 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 substantial 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 excuse.[^[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 CSC. 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 asportation^[10] 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 CSC. 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 CSC. 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.

A

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 N.W. 781 (1936), that a "[d]efendant 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 jury ... 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 CSC — 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 final instructions to the jury are the subject of harmless-error analysis and are therefore not susceptible to automatic reversal. Absent a clear legislative directive, we cannot 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.][^[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 CSC, 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 CSC.^[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 CSC.

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 CSC. 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.

BOYLE, J. (concurring).

I concur in the result reached by the lead opinion, reversing the decision of the Court of Appeals. I write separately because the lead opinion, like the majority of the panel of the Court of Appeals, erroneously assumes that every charge of forcible-confinement kidnapping necessarily requires inclusion of the "merely incidental asportation" requirement articulated for the guidance of trial judges by the committee on standard jury instructions for criminal cases. Our precedent does not require the prosecution to prove a negative, that is, that movement was not merely incidental to another crime. What is required is proof of a positive act that is not "merely incidental" to another offense.

There was no error in the trial judge's instruction to the jury in this case. The judge instructed the jury on the duty to find that the prosecution had proven all the essential elements of both forcible-confinement, false-imprisonment kidnapping and first-degree criminal sexual conduct beyond a reasonable doubt, including the requirement under the kidnapping charge that the victim be forcibly moved for the purpose of kidnapping. As has been ably pointed out by the lead opinion, if such asportation element was found to be proven to the satisfaction of the jury, as it was, the movement was more than just incidental to the commission of CSC, and established that "the crime of forcible-confinement kidnapping both preceded and was complete well before defendant duped complainant into entering his motel" where the commission of the CSC occurred. Ante at 245.

Where two crimes charged are coequal offenses, and it is beyond question that any movement proven was extensive and occurred well in advance of the commission of the CSC, the concerns that dictate the instruction that the jury find an asportation not merely incidental to an underlying crime^[1] are not present. If the proofs of the prosecution and the charge to the jury require a finding of a significant movement for the purpose of abduction and kidnapping, there is no error in tailoring the standard jury instruction and choosing not to give the "merely incidental" language to the jury. If 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.

I

This Court first engrafted the asportation requirement onto forcible-confinement kidnapping in People v Adams, 389 Mich. 222, 230; 205 NW2d 415 (1973), in order to distinguish the common-law misdemeanor of false imprisonment and prevent overcharging.^[2] In that case, we also adopted the rule from New York and California jurisprudence 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." Id. at 236. The asportation element and incidental asportation rule were adopted to provide an alternative to true movement and were "``designed to prevent gross distortion of lesser crimes into a much more serious crime by excess of prosecutorial zeal.'" Id. at 232, quoting People v Miles, 23 NY2d 527, 540; 297 NYS2d 913; 245 NE2d 688 (1969). In discussing the rationale for New York's version of the incidental asportation rule, the Court of Appeals of that state explained:

[I]n any robbery, there is a restraint of "false imprisonment" and in every rape there is a similar restraint and often removal in some limited sense. It is this kind of factual merger with the ultimate crime of the preliminary, preparatory, or concurrent action that the rule is designed to recognize, and thus prevent unnatural elevation of the "true" crime to be charged. [Id. at 539.]

The New York court went on to caution, however, that

the Levy-Lombardi[^[3]] [incidental asportation] rule was designed to prevent gross distortion of lesser crimes into a much more serious crime by excess of prosecutorial zeal. It was not designed to merge "true" kidnappings into other crimes merely because the kidnappings were used to accomplish ultimate crimes of lesser or equal or greater gravity. Moreover, it is the rare kidnapping that is an end in itself; almost invariably there is another ultimate crime. [Emphasis added.]

In the present case, the facts presented by the prosecution and accepted by the jury do not present the kind of factual merger or preparatory action that requires a merely incidental instruction to guard against overcharging. The kidnapping that occurred was a "true" kidnapping, committed and completed before the CSC, although used to accomplish the ultimate crime of sexual assault.^[4]

In People v Barker, 411 Mich. 291, 296; 307 NW2d 61 (1981), the Court expanded the incidental asportation rule of Adams to apply when two coequal offenses are charged. The issue in Barker was whether it was proper to affirmatively instruct the jury that it could satisfy the asportation element necessary for kidnapping by finding movement "merely" incidental to another offense when the punishment for both offenses was equal. While the Court did not focus on whether the crime charged was forcible-confinement kidnapping as it did in Adams,^[5] we again acknowledged that asportation was an alternative to other forms of kidnapping, id. at 298, and we again addressed the possibility of "excessive prosecutorial zeal."^[6] In Barker, the manifestation of that zeal was the possibility that a prosecutor could transform one offense into two by using the incidental movement from one coequal charge to fulfill the asportation requirement of a second offense of kidnapping.^[7]

However, while it is error to instruct the jury that movement incidental to committing another offense satisfies the asportation element, it does not follow, as the Court of Appeals concluded, that the words "asportation ... not merely incidental to"^[8] must always be given.

In People v Wesley, 421 Mich. 375, 391; 365 NW2d 692 (1984), we observed that the asportation requirement is applicable only to false-imprisonment kidnapping, not to the other forms of kidnapping incorporated in the Michigan statute. We explained that the interpolation of asportation as an element is not required for other forms of kidnapping because the elements of those other forms do not present the danger of overcharging or inappropriate punishment.^[9] We specifically held, for example, that no movement is needed to establish the offense of forcible confinement with intent to secretly confine because the required element of a purpose to cause such secret confinement served to avoid any overbreadth concerns. Id. at 389-390.^[10]

As is apparent, the purpose of the inclusion of the asportation element and incidental asportation rule in forcible-confinement, false-imprisonment kidnapping is to (1) prevent the literal application of the kidnapping statute to sweep so broadly as to allow the improper elevation of lesser crimes to capital offenses, and (2) guard against the use of movement incidental to another coequal offense, charged along with kidnapping, to fulfill the movement requirement of forcible-confinement kidnapping to improperly present the prosecution with two opportunities to convict the defendant of a capital offense, instead of one.

II

Our concern in the present case is not with the first danger. The jury was instructed that asportation was an element of kidnapping that had to be found beyond a reasonable doubt, and there has been no suggestion that a lesser crime, such as assault, has been surreptitiously elevated to a capital offense by allowing some incidental movement to satisfy the asportation requirement. The danger then, if any, presented by the absence of a "merely incidental" asportation instruction, is the possible use by the jury of movement incidental to the coequal charge of CSC to fulfill the asportation element of the kidnapping offense. As is true of the first possible hazard, on these facts, any such peril is nonexistent.

Evidence of extensive movement was presented at trial. According to testimony of the complainant,^[11] she joined the defendant voluntarily at approximately 1:40 A.M. They then proceeded to a party store to purchase alcohol, a gas station to make a phone call, and a parking lot to smoke marijuana. The complainant testified that she was no longer accompanying the defendant willingly after leaving the party store, that she tried to flee the moving vehicle once and was struck by the defendant before arriving at his friend's home, that she later fled down the road from the friend's home, and that defendant caught her, struck her, and forced her back into the car, all before proceeding to the motel where the sexual assault occurred.

While this testimony did not absolve the prosecutor of the duty to prove the element of movement for the purpose of kidnapping beyond a reasonable doubt, it did present ample evidence of movement independent of the ultimate commission of CSC.^[12] Indeed, the evidence is so overwhelming that the lead opinion finds that "[c]omplainant'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." Ante at 242-243 (emphasis in original). The question, of course, is why, if there was such movement, it was error to eliminate the merely incidental language from the proposed standard jury instruction.

The jury was instructed that "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."^[13] This asportation for the purpose of kidnapping is the essential element the jury must find, not asportation not merely incidental to another offense charged. See Adams and Barker, supra.

Although "[j]urors are the sole judges of the facts and neither the trial court nor this court can interfere with their exercise of that right," People v Miller, 301 Mich. 93, 100; 3 NW2d 23 (1942), where the proofs as presented indicate completed offenses, it is not a usurpation of the jury's function for the trial court to charge movement for the purpose of kidnapping. Where the proofs raise no question of fact or law regarding whether a false-imprisonment kidnapping is merely incidental to another crime, an instruction that the jury must find forcible movement for the purpose of kidnapping is a correct statement of law.

Under the particular facts of a given case, the dangers that require the instruction that the asportation element be found independent of its occurrence in the commission of another crime are absent. In the present case, the jury found asportation beyond a reasonable doubt on the basis of evidence presented by the prosecution that the lead opinion accurately characterizes as "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 CSC ...." Ante at 239. In short, if the jury was sufficiently convinced that the evidence presented at trial proved the element of asportation, this finding precluded concern that such evidence could be incidental to another coequal charge.

In the present case, an experienced trial court judge correctly recognized that because of the absence of the danger guarded against by the incidental asportation rule, the standard jury instruction was inapplicable and properly tailored the standard instruction to conform to the proofs in a form that clearly charged the elements that must be found beyond a reasonable doubt.^[14] Any incidental asportation instruction was superfluous, potentially confusing, and properly eliminated.

III

Movement is a necessary element of forcible-confinement, false-imprisonment kidnapping, and the judge properly instructed the jury in respect to that fact. If such asportation was found on the facts presented at trial, however, there existed no reason for concern regarding the possibility of elevating a lesser offense to a capital crime or borrowing asportation incidental to another offense to satisfy that element of the kidnapping charge. Because the jury was correctly instructed, I agree that the Court of Appeals decision should be reversed and the jury's verdict should be reinstated.

RILEY and GRIFFIN, JJ., concurred with BOYLE, J.

CAVANAGH, C.J. (concurring in part and dissenting in part).

I find that the instructional error was harmless under both Justice BRICKLEY's and Justice LEVIN's harmless-error standards. I endorse Justice LEVIN's harmless-error standard as the proper one to be applied to the type of error that occurred in this case. I also contend that the defendant's double convictions violate the constitutional principle of double jeopardy.

Specifically, I concur with Justice BRICKLEY that, under the standard that he applies for harmless error, the error in this case may be deemed harmless. However, I dissent from Justice BRICKLEY's opinion because I believe that he applies the wrong mode of analysis for assessing the particular error that occurred here. I prefer the analytical framework that Justice LEVIN advocates — a framework that I interpret as a distinctive harmless-error standard to be applied in cases in which the trial court has failed to properly instruct the jury on an essential element of a crime.

While I endorse the harmless-error standard that Justice LEVIN champions, I disagree with the conclusion that Justice LEVIN makes when he applies that standard to the error in the instant case, i.e., Justice LEVIN's finding that the deficient instruction was not a harmless error. If an appellate court focuses on what this jury actually found, as Justice Scalia directs it to do in Sullivan v Louisiana, 508 U.S. ___; 113 S. Ct. 2078; 124 L. Ed. 2d 182 (1993), I believe that the appellate court could properly conclude that, on the basis of the special circumstances of this case, the jury necessarily found the uninstructed element of asportation in furtherance of the kidnapping and not merely incidental to the criminal sexual conduct. See also Pope v Illinois, 481 U.S. 497, 504; 107 S. Ct. 1918; 95 L. Ed. 2d 439 (1987) (Scalia, J., concurring).

The trial judge instructed the jury that it had to find that 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.'" Ante at 230-231. The undisputed asportation evidence that was actually argued to the jury pertained to movement that was clearly incidental exclusively to the kidnapping. In light of the guilty verdict, the jury had to have found that asportation transpired. Applying Justice Scalia's harmless-error framework, as it was explicitly explained by the United States Court of Appeals for the Ninth Circuit in Martinez v Borg, 937 F2d 422, 425 (CA 9, 1991), I find that "no rational jury could have made those findings [the ones that we know the jury made on the basis of the instructions that were actually given] without also finding [the element of independent asportation]."

To arrive at this conclusion does not require speculation on the part of the appellate court. Certainly, it is possible that the jury's asportation finding was based on the movement from the car to the motel room, or from the floor to the bed, as Justice LEVIN hypothesizes in his dissent at 274. However, in view of the particular nature of the asportation evidence that in fact was argued to the jury, I consider such a scenario to be highly unlikely and assert that the jury necessarily found asportation unique to the commission of the kidnapping. Accordingly, an appellate court could accurately rule that "[t]he [instructional] error is harmless because it is ``beyond a reasonable doubt,' Chapman v California, 386 U.S. 18, 24 [87 S. Ct. 824; 17 L. Ed. 2d 705] (1967), that the jury found the facts necessary to support the conviction." Carella v California, 491 U.S. 263, 271; 109 S. Ct. 2419; 105 L. Ed. 2d 218 (1989) (Scalia, J., concurring).

As a final point, and one that I acknowledge neither the majority nor the dissent directly addresses, I write to object to the fact that the defendant in this case has been convicted of both first-degree criminal sexual conduct by penetration under circumstances involving the commission of another felony, and kidnapping — where kidnapping serves as the other felony. As I have indicated on prior occasions, I regard the imposition of separate punishments under these circumstances to be a violation of the constitutional prohibition against double jeopardy, specifically the prohibition against multiple punishments for the same offense. See People v Sturgis, 427 Mich. 392, 413; 397 NW2d 783 (1986) (CAVANAGH, J., dissenting); People v Robideau, 419 Mich. 458, 504-513; 355 NW2d 592 (1984) (CAVANAGH, J., dissenting). I find it necessary to expressly reiterate my view that a legislature's authorization of successive punishments for the same offense does not dispose of the question whether a double jeopardy violation has occurred "``[s]ince the Double Jeopardy Clause limits the power of all branches of government, including the legislature ....'" Robideau at 510, quoting Missouri v Hunter, 459 U.S. 359; 103 S Ct 673; 74 L. Ed. 2d 535 (1983) (Marshall, J., dissenting) (emphasis added). Moreover, as I also pointed out in Robideau, I find that "the [Michigan] Legislature has not clearly and unequivocally authorized punishment for both first-degree criminal sexual conduct based on sexual penetration under circumstances involving any ``other felony' and the ``other felony.'" Id. at 511.

In conclusion, I concur in the result reached in Justice BRICKLEY's opinion, and the analyses set forth in parts II and III of that opinion; and I join the analyses set forth in parts I, II, and III of Justice LEVIN's dissent.

LEVIN, J. (dissenting).

I agree with the signers of the lead opinion and the Chief Justice that the trial court erred in failing to instruct the jury that to consider the defendant, Derrick Terrance Vaughn, guilty of forcible-confinement kidnapping, it had to find beyond a reasonable doubt that Vaughn moved the victim and that that movement was not merely incidental to the commission of the underlying CSC charge.

The failure to instruct on an essential element cannot be deemed harmless on the basis that a properly instructed jury surely would have found the uninstructed element. Even if such an instructional error could be considered harmless under some circumstances, the omission of the asportation instruction in this case was not harmless.

I

Vaughn claims that the trial court's failure to instruct the jury on all the essential elements of kidnapping permitted the jury to convict him without finding every essential element and thereby relieved the prosecution of its constitutionally mandated burden of proving the essential elements beyond a reasonable doubt.^[1]

Assuming the rule set forth in People v Woods, 416 Mich. 581; 331 NW2d 707 (1982), and in MCL 769.26; MSA 28.1096 — that a court may not reverse on the basis of an instructional error absent a finding of prejudice — controls where the trial court failed to instruct on an essential element,^[2] we are not free to follow that rule if it provides less protection of a defendant's due process rights than is required under the Fourteenth Amendment.^[3]

II

The issue whether a trial court's failure to instruct on all the essential elements of a crime can be considered harmless error was considered in Rose v Clark, 478 U.S. 570; 106 S. Ct. 3101; 92 L. Ed. 2d 460 (1986), Pope v Illinois, 481 U.S. 497; 107 S. Ct. 1918; 95 L. Ed. 2d 439 (1987), and Carella v California, 491 U.S. 263; 109 S. Ct. 2419; 105 L. Ed. 2d 218 (1989).

In Rose, the trial court erroneously instructed the jury that a killing is presumed to have been done maliciously. The United States Supreme Court held that this instructional error was subject to harmless-error review. The Court emphasized that the presumption did not prevent the jury from considering every element of the crime because "the jury ... was clearly instructed that it had to find respondent guilty beyond a reasonable doubt as to every element of both first- and second-degree murder," id. at 579. The Court added that the erroneous instruction was not the equivalent of a directed verdict for the state because "[w]hen a jury is instructed to presume malice from predicate facts, it still must find the existence of those facts beyond a reasonable doubt." Id. at 580.

In Pope, the trial court instructed the jury that the literary, artistic, political, or scientific value of allegedly obscene material should be determined by reference to how that material would be viewed by ordinary adults in the entire State of Illinois. The United States Supreme Court held that the value of a work should be determined under a "reasonable person" standard that is not specific to any city or state, and therefore found the instruction to be erroneous.

The Court rejected the defendants' claims that they were automatically entitled to a new trial because the jury had not found them guilty of an essential element of the crime of selling obscene materials, namely, that the materials lacked serious literary, artistic, political, or scientific value. The Court compared this case to Rose, and said:

[I]n the present cases the jurors were not precluded from considering the question of value: they were informed that to convict they must find, among other things, that the magazines petitioners sold were utterly without redeeming social value. While it was error to instruct the juries to use a state community standard in considering the value question, if a reviewing court concludes that no rational juror, if properly instructed, could find value in the magazines, the convictions should stand. [Id. at 503.]

Carella concerned a California jury instruction that told jurors that a person who has leased or rented a vehicle and wilfully failed to return it within five days after it is due to be returned shall be presumed to have embezzled the vehicle. The Court first held that the instruction was unconstitutional because it "subvert[ed] the presumption of innocence accorded to accused persons and also invade[d] the truth-finding task assigned solely to juries in criminal cases." Id. at 265. The Court held that the instructional error was subject to harmless-error analysis even though it "foreclosed independent jury consideration of whether the facts proved established certain elements of the offenses with which Carella was charged." Id. at 266. The Court remanded for a determination of "whether no rational jury could find the predicate acts but fail to find the fact presumed." Id. at 267.

Justice Scalia filed a concurring opinion in which he suggested how harmless-error review should be conducted when the trial court has given an instruction with an impermissible mandatory presumption. He first highlighted the problem with harmless-error review in the mandatory presumption context: the jury has arguably failed to make any finding on the fact that it was instructed to presume. He next explained that where a jury has failed to make a factual finding, a reviewing court may not find that element itself, no matter how overwhelming the evidence of that element may be. Justice Scalia, therefore, suggested that an appellate court could only review for harmless error in the mandatory presumption context by scrutinizing the jury instructions that were actually given in an attempt to determine whether the jury itself found the essential element. He said that an appellate court could find a mandatory presumption instruction harmless when "the predicate facts relied upon in the instruction, or other facts necessarily found by the jury, are so closely related to the ultimate fact to be presumed that no rational jury could find those facts without also finding that ultimate fact, making those findings is functionally equivalent to finding the element to be presumed." Id. at 271.

After Rose, Pope, and Carella,^[4] the appellate courts were in disagreement whether a trial court's failure to instruct on an essential element of an offense could ever be harmless error. Those courts that held that a failure to instruct could be harmless error could not agree when such an error would be deemed harmless.^[5]

III

The United States Supreme Court's recent decision in Sullivan v Louisiana, 508 U.S. ___; 113 S. Ct. 2078; 124 L. Ed. 2d 182 (1993), precludes an appellate court from holding that a failure to instruct on an essential element is harmless because a properly instructed jury surely would have found the uninstructed element.

In Sullivan, the trial judge gave a faulty reasonable-doubt instruction. The prosecutor conceded that the instruction was improper, but he argued that the error was harmless beyond a reasonable doubt. The Court held that harmless-error analysis was not appropriate in this context, and, writing for a unanimous Court, Justice Scalia made the following observations concerning harmless-error analysis:

Chapman itself suggests the answer [whether this sort of error is subject to harmless-error analysis]. Consistent with the jury-trial guarantee, the question it instructs the reviewing court to consider is not what effect the constitutional error might generally be expected to have upon a reasonable jury, but rather what effect it had upon the guilty verdict in the case at hand.... Harmless-error review looks, we have said, to the basis on which "the jury actually rested its verdict." ... The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error. That must be so, because to hypothesize a guilty verdict that was never in fact rendered — no matter how inescapable the findings to support that verdict might be — would violate the jury-trial guarantee....

Once the proper role of an appellate court engaged in the Chapman inquiry is understood, the illogic of harmless-error review in the present case becomes evident. Since, for the reasons described above, there has been no jury verdict within the meaning of the Sixth Amendment, the entire premise of Chapman review is simply absent. There being no jury verdict of guilty-beyond-a-reasonable-doubt, the question whether the same verdict of guilty-beyond-a-reasonable-doubt would have been rendered absent the constitutional error is utterly meaningless. There is no object, so to speak, upon which the harmless-error scrutiny can operate. The most an appellate court can conclude is that a jury would surely have found petitioner guilty beyond a reasonable doubt — not that the jury's actual finding of guilty beyond a reasonable doubt would surely not have been different absent the constitutional error. That is not enough.... The Sixth Amendment requires more than appellate speculation about a hypothetical jury's action, or else directed verdicts for the State would be sustainable on appeal; it requires an actual jury finding of guilty.... [Emphasis in the original.]

Insofar as the possibility of harmless-error review is concerned, the jury-instruction error in this case is quite different from the jury-instruction error of erecting a presumption regarding an element of the offense. A mandatory presumption — for example, the presumption that a person intends the ordinary consequences of his voluntary acts — violates the Fourteenth Amendment, because it may relieve the State of its burden of proving all elements of the offense.... But "[w]hen a jury is instructed to presume malice from predicate facts, it still must find the existence of those facts beyond a reasonable doubt." [Id., 113 S Ct 2081-2082. Emphasis added.]

The Court's opinion in Sullivan relied in part on Justice Stevens' dissenting opinion in Pope v Illinois. The portion of Justice Stevens' opinion on which the Court relied states:

An application of the harmless-error doctrine under these circumstances [where a defendant is denied a jury determination on an essential element] would not only violate petitioners' constitutional right to trial by jury, but would also pervert the notion of harmless error. When a court is asked to hold that an error that occurred did not interfere with the jury's ability to legitimately reach the verdict it reached, harmless-error analysis may often be appropriate. But this principle cannot apply unless the jury found all of the elements required to support a conviction. The harmless-error doctrine may enable a court to remove a taint from proceedings in order to preserve a jury's findings, but it cannot constitutionally supplement those findings. It is fundamental that an appellate court (and for that matter, a trial court) is not free to decide in a criminal case that, if asked, a jury would have found something that it did not find. We have consistently rejected the possibility of harmless error in these circumstances. [481 U.S. 497-498. Emphasis added.]

The analysis in Sullivan and the Court's reliance therein on Justice Stevens' opinion in Pope, indicates that harmless-error review necessarily assumes that the jury has found all the elements of the crime beyond a reasonable doubt. Only after a jury has made such findings, as Justice Scalia explained, can a court intelligently ask whether the guilty verdict would have been the same absent the error. Where the jury has not found all the essential elements, an appellate court, in finding harmless error because a properly instructed jury surely would have found the uninstructed element, would be making the very mistake that Justice Scalia identified: it would be saying that the jury would surely have found all the essential elements.

Judge Procter Hug, Jr., of the United States Court of Appeals for the Ninth Circuit recently explained:

This principle [that a court is not free to "hypothesize a guilty verdict that was never in fact rendered," Sullivan v Louisiana, 508 U.S. ___, ___; 113 S. Ct. 2078, 2082; 124 L. Ed. 2d 182 (1993)] is equally applicable to a finding of an essential element of a crime — in this case, knowledge. In order to render a verdict of guilty, a jury must find all of the essential elements of the crime, under proper instructions. "[A] jury's verdict [of guilty] cannot stand if the instructions ... do not require it to find each element of the crime under a proper standard of proof." Here, the jury did not make a finding of knowledge under a proper instruction. For appellate court judges to make this finding, by concluding what the jury would have found under a proper instruction, violates the defendant's Sixth Amendment right to have a jury actually make that finding. It is a structural error of constitutional dimension — the judges, instead of the jury, are making the finding essential to the verdict. See Sullivan, [508] US ___, ___; 113 S Ct 2082-2083. [United States v Aguilar, 994 F2d 609, 636 (CA 9, 1993) (Hug, J., dissenting), opinion withdrawn and superseded by 21 F3d 1475 (CA 9, 1994). Citations omitted.]

The Ninth Circuit recently accepted Judge Hug's view in an en banc opinion written by Judge Hug. United States v Gaudin, 28 F3d 943 (CA 9, 1994). The court said that "a judge may not direct a verdict against a defendant no matter how clear the evidence, nor may an appellate court conclude under a harmless error doctrine that a jury ``would have' found an essential element of the crime if the jury did not do so under proper instructions. Sullivan, [508] US ___; 113 S. Ct. 2080, 2082." Id. at 949. (Emphasis added.)

A number of state courts have also concluded, on the authority of Sullivan, that they may not review the record to determine whether a jury would have found an essential element had it been properly instructed. In State v Pyke, 640 So 2d 460 (La App, 1994), the trial court instructed the jury that it could convict the defendant of attempted second-degree murder if it found that he had either a specific intent to kill or a specific intent to commit great bodily harm. In Louisiana, however, "a specific intent to do great bodily harm is not an element of the crime of attempted second degree murder." Id. at 462. Thus, in Pyke, there was no way of determining whether the jury had found all the essential elements of the charge when it rendered a guilty verdict. It may have found an intent to do great bodily harm instead of an intent to kill.

After discussing Sullivan's teachings concerning harmless-error review, the court noted that it did not have the authority to deem an error harmless on the ground that a properly instructed jury surely would have found the uninstructed element:

The "specific intent to inflict bodily harm" error in this case must be likened to the "beyond-a-reasonable doubt" error which the United States Supreme Court in Sullivan determined is "structural" and vitiates all the jury's findings.

[Moreover,] determining what a reasonable jury might have done in instructional error cases involving the definition of the crime necessarily interjects speculation in the reviewing process and results in "the wrong entity judg[ing] the [defendant's guilt]." Sullivan v Louisiana, supra. [Id. at 465. Emphasis added.][^[6]]

In Vigil v State, 859 P2d 659 (Wyo, 1993), the trial court failed to instruct the jury that recklessness was an essential element of involuntary manslaughter. The Wyoming Supreme Court reversed the defendant's conviction, even though the defendant had proffered the erroneous instruction, because "inaccurate jury instructions on a specifically repealed statute, resulting in a possible conviction without proof beyond a reasonable doubt of all present elements of a crime, cannot be excused as invited error or harmless error. Sullivan v Louisiana, [508] US ___; 113 S. Ct. 2078; 124 L. Ed. 2d 182 (1993)." 859 P2d 664 (emphasis added).

After Sullivan,^[7] a failure to instruct on an essential element cannot be found to have been harmless on the basis that the jury surely would have found the missing element had it been instructed on the element.

IV

Although an appellate court may not hold that a failure to instruct is harmless on the basis that the jury surely would have found the element of the offense on which it was not instructed an appellate court may nevertheless find such an instructional error to be harmless. In Martinez v Borg, 937 F2d 422 (CA 9, 1991),^[8] the United States Court of Appeals for the Ninth Circuit analyzed and adopted Justice Scalia's approach to harmless-error review, and concluded that Justice Scalia would permit a limited form of harmless-error review where a trial court failed to instruct the jury on an essential element of an offense.

The Ninth Circuit held that while an appellate court may not make its own determination of what a jury would have found had it been instructed on all the elements of the offense, the court may review the record to determine whether "``the jury found the facts necessary to support the conviction.'" 937 F2d 424, quoting Carella, supra (Scalia, J., concurring). The Ninth Circuit focused on the following language in Justice Scalia's concurring opinion in Carella:

When the predicate facts relied upon in the instruction, or other facts necessarily found by the jury, are so closely related to the ultimate fact to be presumed that no rational jury could find those facts without also finding that ultimate fact, making those findings is functionally equivalent to finding the element required to be presumed. [491 U.S. 271.]

In the Ninth Circuit's words, if the appellate court determines that the jury found all the facts necessary to support the conviction, then "``the erroneous instruction is simply superfluous: the jury has found, in Winship's words, "every fact necessary" to establish every element of the offense beyond a reasonable doubt.'" 937 F2d 424, quoting Rose v Clark, supra.^[9]

Thus, a failure to instruct may be found to be harmless error, according to the Ninth Circuit's reading of Justice Scalia's views, if the reviewing court can determine that "no rational jury would have made these findings [the ones that we know the jury made on the basis of the instructions that were actually given] without also finding" that the prosecution proved the uninstructed element beyond a reasonable doubt. 937 F2d 425. In short, a failure to instruct may be found to be harmless if the reviewing court can determine that the jury actually found the element on which it was not instructed.^[10]

V

The failure to instruct in this case was not harmless under the Ninth Circuit's approach. Assuming that the jury found all the elements necessary to establish the CSC charge and all the elements of kidnapping except the asportation, the jury would not have had to find that the prosecution had proven the asportation element of kidnapping.

The trial judge instructed on the kidnapping charge:

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 movement was for the purpose of kidnapping, you may consider whether the movement was for a few feet or for a substantial 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 excuse.

As observed in the lead opinion, "the trial judge in effect permitted jurors to find the asportation element satisfied by movement merely incidental to the commission of CSC."^[11] The jury could have found that the asportation element of kidnapping was satisfied when Vaughn "caused [Smith] to be moved" from his car into the motel room, or it could have found that the asportation element was satisfied when Vaughn moved Smith from the floor to the bed in the motel room. Neither of these findings would establish the essential element of an asportation with independent significance. In sum, the findings that the jury must have made (on the basis of the instructions that were given) do not compel the conclusion that the jury must also have found an asportation of independent significance.^[12] The failure to instruct on the asportation element in this case cannot be considered harmless.

VI

Even under the view that an appellate court can find that a failure to instruct was harmless if it concluded that a properly instructed jury could not have reached a different verdict,^[13] the failure to instruct was not harmless in this case. It is not clear that a properly instructed jury would have convicted Vaughn of kidnapping.

When the jury's findings are read in light of the instructions, it becomes clear that the jury found that Vaughn raped Holly Smith, that he confined her, and that he moved her some distance. The jury obviously believed much of Smith's testimony. It is noteworthy, however, that the portion of Smith's testimony concerning the rape (and the confinement in conjunction with the rape) was corroborated, in large part, by forensic evidence and other testimony. Holly's pelvis, vagina, and external genitalia were swollen. The police found nonmobile sperm in a vaginal smear taken from Holly, and they found semen in the crotch of Holly's panties. Vaughn could not be eliminated as the source of the semen in the panties. Holly was observed with bruises on her face that were consistent with her claim that Vaughn hit her while they were in the motel room.

The evidence of an asportation is not as strong as the evidence of the sexual assault. The sole evidence that Vaughn moved Holly against her will was Holly's own testimony. Holly testified that Vaughn drove her around while he was intoxicated and that during various stops he hit her.

Holly's testimony, however, was not fully consistent with her initial statements to the police or with her testimony at the preliminary examination, and Vaughn's lawyer impeached her on a number of aspects of the alleged asportation:

— Holly testified that while she and Vaughn were in the parking lot of Awad's party store, she asked Vaughn to take her back to the bar and to take her home. Vaughn's lawyer demonstrated that, in her initial report to Sergeant Elford, Holly mentioned only that she asked to be taken home at that point in the evening.

— Holly testified that when she attempted to jump out of Vaughn's car, Vaughn pulled her back into the car and hit her in the face. Vaughn's lawyer then impeached Holly with her preliminary examination testimony that after Vaughn pulled her back into the car (1) the car door hit her in the head, and (2) Vaughn did not do anything besides pull her back into the car (i.e., did not hit her).

— Holly testified that when she ran from Vaughn's car in the unfamiliar neighborhood, she knocked on only a single door in search of help. Vaughn's lawyer confronted Holly with her statement to Sergeant Elford that she had knocked on several doors.

— Holly testified that when Vaughn forced her back into his car after she ran away in the unfamiliar neighborhood, Vaughn hit her twice with a closed fist. Vaughn's lawyer impeached Holly with her statement to Sergeant Elford that mentioned only that Vaughn grabbed her around the neck and in which Holly did not say anything about being hit with a closed fist.

Not only was Holly Smith's testimony not "uncontested,"^[14] it was successfully contested on a number of details.

I do not mean to suggest that the evidence was not sufficient to support a kidnapping conviction. If a properly instructed jury chose to believe the testimony of Holly Smith, it surely could have returned a verdict of guilty of kidnapping.

The uncorroborated testimony of Holly Smith — the sole evidence concerning the asportation and the force involved — is not overwhelming evidence that Vaughn moved her independently of the sexual assault. It is not clear that a jury could not have disbelieved the portion of Holly's testimony that led up to the rape. An Adams^[15] asportation instruction was necessary.

Contrary to the view expressed in the concurring opinion, the failure to instruct concerning "incidental movement" instruction could have converted a lesser offense into a more serious offense.^[16] The kidnapping charge lodged against Vaughn was the predicate felony underlying the CSC I charge against him. Thus, Vaughn could only have been convicted of CSC I if the jury properly found that he had committed the offense of kidnapping.^[17] If the jury erroneously found an asportation and convicted Vaughn of kidnapping — on the basis of the movement from the car to the motel — then its verdict on the CSC I charge would also have been tainted. And, if the jury found only that Vaughn moved Holly Smith from the car to the motel, he should have been convicted of CSC III, not CSC I. The failure to give the Adams asportation instruction could have led to Vaughn's conviction on a more severe charge.

NOTES

[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 for a kidnapping conviction. [Wesley, supra at 388. Emphasis in original.]

Defendant has 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.]

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 CSC. 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 failure to charge the jury on the element of asportation is error, even absent a request for such instruction); People v Nash, 47 Mich. App. 371; 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 by 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 general 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] 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 confine 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 confine 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 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) 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 19:1:01. 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 CSC.

[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 official sanction of this Court, Petrella, 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 jury of its duty to find asportation not merely incidental to the commission of CSC, 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 essential 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").

Recently, this Court recognized that the Robinson two-part inquiry is strikingly similar to the federal constitutional test announced in Chapman v California, 386 U.S. 18; 87 S. Ct. 824; 17 L. Ed. 2d 705 (1967), and Arizona v Fulminante, 499 U.S. 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 a "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 trial 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 U.S. ___; 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 U.S. 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 U.S. 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 CSC. 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 CSC. Kidnapping was used to elevate the second charge to CSC-I. To convict under both counts, the prosecutor had to first 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 CSC 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 CSC, 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 CSC 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 CSC 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 CSC 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 CSC victim to a place of greater isolation increased the risk of harm beyond that normally incident to CSC. 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 S.W.2d 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 CSC 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.

[1] Except in the case of murder, extortion, or taking a hostage.

[2] We have previously held that the addition of the asportation element is only necessary to cure constitutional infirmities in the forcible-confinement portion of our kidnapping statute, not those sections regarding secret confinement, forcible seizure, or forcible confinement with intent to secretly confine. People v Wesley, 421 Mich. 375, 391; 365 NW2d 692 (1984).

[3] People v Levy, 15 NY2d 159; 256 NYS2d 793; 204 NE2d 842 (1965); People v Lombardi, 20 NY2d 266; 282 NYS2d 519; 229 NE2d 206 (1967).

[4] The dissent attempts to broaden this rationale for the incidental asportation rule. The concern in the cases establishing the rule was that the prosecutor might charge the more serious crime of kidnapping, instead of a lesser crime warranted by the evidence, by literal application of the kidnapping statute. See Adams, supra. There was no concern that proof of kidnapping could be used to improperly supply an essential element of another charge.

[5] We have questioned that deviation in the past, stating that "[i]n its holding in Barker, the Court seems to have departed from the intellectual underpinning of Adams, the need to prevent prosecutorial overcharging." Wesley, n 2 supra at 386, n 4.

[6] We quoted with approval from the Court of Appeals in Barker:

"We are of the opinion that the thrust of Adams is not limited solely to the prevention of the distortion of lesser offenses into those more serious, but to further prevent one crime from being transformed into two (e.g., kidnapping and rape), and that those decisions holding Adams applicable to coequal offenses represent the better reasoned approach.

"It may be argued that a danger perceived by Adams, that of excessive prosecutorial zeal, is not as prevalent where two capital offenses are involved, inasmuch as the result would be two concurrent sentences of up to life instead of one.

"While it is certainly true that multiple sentences in Michigan run concurrently, it is also true that the conversion of a single capital offense into two capital offenses by charging incidental movement of the victim results in not only perhaps an additional concurrent sentence up to life, but also in two chances for conviction instead of only one. It is entirely possible for the jury to acquit on the charge underlying the kidnapping but convict on the latter. For this reason, the danger of ``excessive prosecutorial zeal' is equally present." [Barker, supra at 299, n 4, quoting People v Barker, 90 Mich. App. 151, 156-157; 282 NW2d 266 (1979).]

[7] There is no suggestion in Barker of a double jeopardy concern. Nor is there any justification for such concern in the present case. The Double Jeopardy Clause only serves as a restraint on the prosecutor and the courts, it does not limit the punishment authorized by the Legislature. People v Robideau, 419 Mich. 458; 355 NW2d 592 (1984). Frustration with the inability of some to appreciate the absence of a multiple-punishment component of the Double Jeopardy Clause has recently been expressed in Dep't of Revenue of Montana v Kurth Ranch, 511 U.S. ___; 114 S. Ct. 1937; 128 L. Ed. 2d 767, 791-792 (1994) (Scalia, J., dissenting):

Between [Ex parte Lange, 85 US (18 Wall) 163; 21 L. Ed. 872 (1874)], and our decision five terms ago in United States v Halper, 490 U.S. 435 [109 S. Ct. 1892; 104 L. Ed. 2d 487] (1989), our cases often stated that the Double Jeopardy Clause protects against both successive prosecutions and successive punishments for the same criminal offense.... But the repetition of a dictum does not turn it into a holding, and an examination of the cases discussing the prohibition against multiple punishments demonstrates that, until Halper, the Court never invalidated a legislatively authorized successive punishment. The dispositions were entirely consistent with the proposition that the restriction derived exclusively from the due-process requirement of legislative authorization. Indeed, some cases expressed the restriction in precisely that fashion. See, e.g. [Ohio v Johnson, 467 U.S. 493, 499, n 8; 104 S. Ct. 2536; 81 L. Ed. 2d 425 (1984)] ("protection against cumulative punishmen[t] is designed to ensure that the sentencing discretion of courts is confined to the limits established by the legislature"); Albernaz v United States, 450 U.S. 333, 344 [101 S. Ct. 1137; 67 L. Ed. 2d 275] (1981) ("the question of what punishments are constitutionally permissible is not different from the question of what punishments the Legislative Branch intended to be imposed"); United States v DiFrancesco, 449 U.S. 117, 139 [101 S. Ct. 426; 66 L. Ed. 2d 328] (1980) ("No double jeopardy problem would have been presented in Ex parte Lange if Congress had provided that the offense there was punishable by both fine and imprisonment, even though that is multiple punishment"); Whalen v United States, 445 U.S. 684, 688 [100 S. Ct. 1432; 63 L. Ed. 2d 715] (1980) ("the question whether punishments imposed by a court after a defendant's conviction upon criminal charges are unconstitutionally multiple cannot be resolved without determining what punishments the Legislative Branch has authorized"); id. at 697 (Blackmun, J., concurring in judgment) ("The only function the Double Jeopardy Clause serves in cases challenging multiple punishments is to prevent the prosecutor from bringing more charges, and the sentencing court from imposing greater punishments, than the Legislative Branch intended") (emphasis in original); Brown v Ohio, 432 U.S. 161, 165 [97 S. Ct. 2221; 53 L. Ed. 2d 187] (1977) ("The legislature remains free under the Double Jeopardy Clause to define crimes and fix punishments"). [Citations omitted; emphasis in original.]

[8] 200 Mich. App. 611, 617; 505 NW2d 41 (1993).

[9] The lead opinion's statement that "[i]t is well established that forcible-confinement kidnapping requires proof of asportation," ante at 224, is not to the contrary. As the lead opinion notes, although the prosecution initially charged both forcible confinement and forcible confinement with intent to secretly confine, the jury was charged under only the former theory.

[10] The lead opinion seems to proceed under the erroneous assumption that any kidnapping charged with a coequal offense requires proof of separate asportation as an essential element. See Wesley, supra.

[11] The defendant chose not to testify at trial.

[12] While the complainant's credibility was questioned by defense counsel on cross-examination, it is apparent from the jury's finding that asportation for the purpose of kidnapping occurred that this attempt was unsuccessful.

It defies common sense to hypothesize, as the dissent attempts to do, that in finding asportation beyond a reasonable doubt, the jury may have disbelieved all of complainant's testimony regarding the events before the sexual assault and totally based its decision regarding this element on movement incidental to the attack. The jury was instructed regarding two separate offenses and made two separate findings. In this regard, it is revealing to note that defense counsel raised no objection to the instructions to the jury when specifically asked at trial, and even failed to raise the issue on appeal.

[13] The defendant was originally charged with forcible or secret-confinement kidnapping. As I have noted, secret-confinement kidnapping requires no proof of an asportation element, there being no concern for overbreadth in interpretation of that portion of the statute. See n 2. The judge in the present case also originally stated the charge in the alternative in his instructions, but then chose only to describe to the jury the elements of forcible-confinement kidnapping.

[14] As noted by the lead opinion, the Criminal Jury Instructions are not officially sanctioned or mandated by this Court, and may be modified or disregarded where appropriate. "Their use is not required, and trial judges are encouraged to examine them carefully before using them, in order to ensure their accuracy and appropriateness to the case at hand." People v Petrella, 424 Mich. 221, 277; 380 NW2d 11 (1985).

[1] See In re Winship, 397 U.S. 358, 364; 90 S. Ct. 1068; 25 L. Ed. 2d 368 (1970) (the prosecution must prove "every fact necessary to constitute the crime with which [the defendant] is charged" beyond a reasonable doubt); Carella v California, 491 U.S. 263, 265; 109 S. Ct. 2419; 105 L. Ed. 2d 218 (1989) (jury instructions that relieve the state of the burden of proving the essential elements of a crime "violate a defendant's due process rights"); Martinez v Borg, 937 F2d 422, 423 (CA 9, 1991) (failure to instruct on an essential element "is constitutional error because the jury did not have the opportunity to find each element of the crime beyond a reasonable doubt"); Rael v Sullivan, 918 F2d 874, 875 (CA 10, 1990) ("We agree with those cases cited by appellant holding that a complete failure to instruct on an essential element of an offense violates the right to due process").

[2] There are a number of decisions by this Court that indicate that a failure to instruct on an essential element can never be harmless error. In People v Butler, 413 Mich. 377, 387; 319 NW2d 540 (1982), this Court said:

A judge's incorrect recitation of the law undermines the purpose of jury instructions. Rather than conforming the jury's factfinding to the law, an incorrect instruction poses the unacceptable risk of convicting a defendant of a crime unknown to the laws of Michigan. It is not, therefore, surprising that this Court will scrutinize the contested instruction closely and, upon finding that a judge failed to inform a jury of the true nature of the offense charged, will not countenance claims of "harmless error" but will reverse. People v Reed, 393 Mich. 342, 351; 224 NW2d 867 (1975).

See also People v Hearn, 354 Mich. 468, 473; 93 NW2d 302 (1958) ("We are in accord with appellant's contention that this Court can and should reverse when the charge to the jury omits a legally essential ingredient, even though no request was made by defendant") (emphasis added); People v Kanar, 314 Mich. 242, 252; 22 NW2d 359 (1946); People v Hernandez, 84 Mich. App. 1, 10; 269 NW2d 322 (1978) ("Even though there was no request for this instruction or any objections to the ones given, reversible error is committed if the judge fails to instruct the jury on an essential element of the offense ...").

[3] Chapman v California, 386 U.S. 18; 87 S. Ct. 824; 17 L. Ed. 2d 705 (1967). Professor Meltzer has recently described Chapman as holding "that federal law often demands that state courts find errors prejudicial." Meltzer, Harmless error and constitutional remedies, 61 U Chi L R 1 (1994).

[4] Neither Rose, Pope, nor Carella settled the issue whether the failure to instruct on an essential element of a crime can ever be harmless error. In 1990, Justice White and Justice Marshall, dissenting from the denial of certiorari in a case that presented this issue, noted that "a conflict of authority exists concerning the availability of harmless-error analysis in this situation," and they highlighted the "depth of this conflict." Teel v Tennessee, 498 U.S. 1007, 1008; 111 S. Ct. 571; 112 L. Ed. 2d 577 (1990) (White, J., dissenting from denial of certiorari).

In 1991, the United States Court of Appeals for the Second Circuit said that the question whether a trial judge's failure to instruct on an essential element can ever be harmless "is a close one, we believe." United States v Smith, 939 F2d 9, 11 (CA 2, 1991).

[5] Compare Hoover v Garfield Heights Municipal Court, 802 F2d 168, 177 (CA 6, 1986) (construing Rose as precluding the application of harmless-error review where the trial court fails to instruct on an essential element); State v Olin, 111 Idaho 516, 528-530; 725 P2d 801 (1986) (same); State v Hamilton, 30 Conn App 68, 77; 618 A2d 1372, 1377 (1993) (harmless-error review was not appropriate where the trial court failed to instruct the jury on an essential element); State v Collins, 88 Ohio App 3d 291; 623 NE2d 1269 (1993) (following Hoover, supra, and refusing to apply a harmless-error analysis where the trial court failed to instruct on an essential element) with United States v Kerley, 838 F2d 932, 939 (CA 7, 1988) (failure to instruct clearly on an essential element can be harmless error, and a particular error may be harmless where the uninstructed element is "not [realistically] contestable and ... barely if at all contested"); Willard v California, 812 F2d 461 (CA 9, 1987) (failure to instruct on an essential element can be harmless error and a particular error may be harmless because the jury itself could be deemed to have made a finding on an uninstructed element).

[6] See also Esquibel v Rice, 13 F3d 1430, 1435 (CA 10, 1994) (Brorby, J., dissenting). In this case, Judge Brorby concluded that the failure to instruct on an essential element of an offense was "plain constitutional error." He then said, "Applying the law of this Circuit, I would conclude the omission of an essential element from the jury charge precludes a harmless error analysis." The majority did not disagree with this statement by Judge Brorby. It did not find error, and therefore did not reach this issue.

[7] Before Sullivan, the United States Court of Appeals for the Ninth Circuit recognized that where a trial court has failed to instruct on an essential element, an appellate court may not review the record to determine whether a properly instructed jury would have found the missing element. In Martinez v Borg, 937 F2d 422, 426 (CA 9, 1991), where the trial court failed to instruct on an essential element, the Ninth Circuit said, "we cannot speculate about how the jury would have weighed this evidence [on the omitted element] had it been instructed to do so." The Ninth Circuit specifically disapproved of "reviewing the record to determine if the evidence overwhelmingly establishes the defendant's guilt...." Id. at 424.

[8] The Ninth Circuit has recently followed Martinez. United States v Mendoza, 11 F3d 126 (CA 9, 1993).

[9] The Ninth Circuit cited its decision in Willard, n 5 supra, as an example of how an appellate court may determine that a trial court's failure to instruct on an essential element may be harmless. In Willard, the defendant was charged with robbery, and the prosecution argued, inter alia, that Willard was guilty as an aider and abettor. The trial court failed to instruct the jury that an essential element of aiding and abetting is a specific intent to commit the crime committed by the principal, and the jury convicted Willard of robbery. The Ninth Circuit held that the failure to instruct on specific intent was harmless because

under the challenged instructions, the verdict represents a finding that Willard had knowledge of the gunman's unlawful purpose and that he was present at the robbery and aided, promoted, encouraged or instigated it. In our view, the jury could not have found these elements of the crime without also finding that Willard had the intent of committing . .. the crime. [Id. at 464.]

[10] See also State v Orosco, 113 NM 780; 833 P2d 1146 (1992). The New Mexico Supreme Court affirmed a conviction of criminal sexual contact of a minor although the trial court had failed to instruct the jury that the unlawfulness of the touching (i.e., that it was not for a medical or other proper purpose) was an element of the offense. The court said:

The circumstances of these cases are important also because, to the extent we affirm the convictions, we do not in effect direct a verdict for the state or make an independent finding on the element of unlawfulness. Rather, we rest our decision on the basis that, under the undisputed evidence of unlawfulness in the cases and the facts upon which the juries relied to find that defendants committed the acts, the juries themselves effectively determined the existence of the omitted element. [Id., 833 P2d 1152. Emphasis added; citations omitted.]

In Orosco, the defendant did not dispute that an unlawful touching occurred. He denied that he did the touching, and he denied knowing that another person was touching the child. The court held that the overwhelming evidence of an unlawful touching, the defendant's concession that an unlawful touching occurred and the jury's finding that the defendant touched the boy both combined to render the instructional error harmless.

The United States Court of Appeals for the Third Circuit applies this form of harmless-error review when a trial court fails to instruct on an essential element and when the defendant fails to object. See United States v Anderson, 859 F2d 1171, 1176 (CA 3, 1988) (finding failure to instruct on an essential element to be harmless where, in light of the jury's findings, "it is impossible to conclude that the jury may not have been in unanimous agreement that Anderson was guilty of three underlying drug crimes") (emphasis added).

[11] Ante, p 234.

[12] Cf. Martinez, supra, 425-426 (the jury's finding that the defendant knew that the perpetrator's purpose in firing a gun at the officer does not necessarily mean that the jury found that the defendant, who was charged as an aider and abettor, shared the perpetrator's purpose); United States v Mendoza, n 8 supra (failure to instruct the jury that the firearm that the defendant was carrying had to be "in relation to" the underlying felony is not harmless error where the court could not rule out that the jury convicted without finding that firearm related to the felony).

[13] Ante, p 238.

[14] BOYLE, J., ante, pp 253-254.

[15] People v Adams, 389 Mich. 222; 205 NW2d 415 (1973).

[16] BOYLE, J., ante, p 252.

[17] The only theory of CSC I on which the jury was instructed concerned the commission of forced penetration in conjunction with an underlying felony. Though other theories of CSC I may have been applicable in this case, they were not contained in the judge's instructions.