People v. Rollins

207 Mich. App. 465 (1994) 525 N.W.2d 484

PEOPLE
v.
ROLLINS

Docket No. 153783.

Michigan Court of Appeals.

Submitted September 14, 1994, at Lansing. Decided November 8, 1994, at 9:10 A.M.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Charles D. Sherman, Prosecuting Attorney, and Laura A. Cook, Assistant Prosecutor, for the people.

Patrick K. Ehlmann, for the defendant on appeal.

Before: WEAVER, P.J., and CAVANAGH and C.C. SCHMUCKER,^[*] JJ.

PER CURIAM.

Defendant was convicted by a jury of kidnapping, MCL 750.349; MSA 28.581, and kidnapping a child under fourteen, (child enticement), MCL 750.350; MSA 28.582, and he subsequently pleaded guilty of being an habitual offender, second offense, MCL 769.10; MSA 28.1082. He was sentenced to two concurrent life sentences. Defendant now appeals as of right, and we affirm.

I

The instant convictions arose out of an incident in which defendant approached a group of children in a trailer park and offered $2 to anyone who would help him retrieve his cat from beneath a trailer. The nine-year-old victim agreed and followed him to the trailer. Once there, defendant grabbed the victim, pulled her toward his car, picked her up, and threw her inside. A neighbor heard the girl's screams, and pulled defendant from the car. Meanwhile, the girl escaped. Defendant drove away in his car, but was quickly apprehended by a nearby police officer who had been alerted by the neighbor.

Defendant was charged with kidnapping and child enticement; a jury found him guilty as charged. This appeal followed.

II

Defendant raises four allegations of instructional error. First, he asserts that the trial court erred in refusing to instruct the jury that to convict defendant of kidnapping it must find that any asportation of the victim was not incidental to another offense, i.e., assault and battery. We disagree.

Defendant relies upon People v Rappuhn, 78 Mich App 348, 354-356; 260 NW2d 90 (1977), in which the defendant's kidnapping conviction was reversed because the trial court's asportation instruction did not convey adequately that movement must have significance independent of any underlying activity. However, in the more recent case of People v Robbins, 131 Mich App 429, 433; 346 NW2d 333 (1984), this Court held that where there is no evidence of an underlying lesser or coequal offense, an instruction on movement merely incidental to some unspecified underlying offense could only lead to confusion and should not be given. See People v Vaughn, 447 Mich 217; 524 NW2d 217 (1994) (BOYLE, J., concurring).

In this case, there was evidence that defendant assaulted the victim, although he was not charged with that offense. However, that assault was incidental to the kidnapping, i.e., it was perpetrated in furtherance of the kidnapping. Accordingly, we believe the instruction requested by defendant would have been confusing and would not have aided the jury in accurately resolving the kidnapping charge. Robbins, supra. The instruction given was adequate under the circumstances.^[1]

Defendant further contends that the trial court erred in failing to instruct that the asportation must not be incidental to child enticement. Defendant failed to object on this basis below and does not support his argument on appeal by citation to legal authority. Accordingly, we deem this issue abandoned. People v Hoffman, 205 Mich App 1, 17; 518 NW2d 817 (1994); Robbins, supra at 431.

Next, defendant alleges that the court erred in denying his request to instruct concerning assault and battery, MCL 750.81; MSA 28.276. We disagree.

A court must instruct concerning a lesser included misdemeanor where (1) the defendant makes a proper request; (2) there is an "inherent relationship" between the greater and lesser offense; (3) the jury rationally could find the defendant innocent of the greater and guilty of the lesser offense; (4) the defendant has adequate notice; and (5) no undue confusion or other injustice would result. People v Stephens, 416 Mich 252, 261-265; 330 NW2d 675 (1982); see People v Hendricks, 446 Mich 435, 444-446; 521 NW2d 546 (1994).

The instruction requested by defendant does not satisfy the second Stephens condition, because there is no inherent relationship between the offenses of kidnapping and assault and battery: kidnapping is not necessarily an assaultive crime. Thus, the trial court properly refused to instruct concerning assault and battery.

Defendant also claims that the court's instruction to the jury concerning the elements of the offense of child enticement was erroneous. Again, this issue is unpreserved, and we decline to consider it. Robbins, supra.

III

Defendant next asserts that the court erred in denying his motion for a directed verdict with respect to the child enticement charge. Viewing the evidence in a light most favorable to the prosecutor, a rational trier of fact could have found the essential elements of the crime (including the intent to detain or conceal the child from her parent) were proven beyond a reasonable doubt. People v Hampton, 407 Mich 354, 368; 285 NW2d 284 (1979). Accordingly, the court properly denied defendant's motion.

IV

Next, defendant contends that his two convictions violate the constitutional prohibition against double jeopardy.

Multiple convictions of legislatively linked crimes do not violate necessarily the double jeopardy protection against multiple punishments. The determinative inquiry is what punishment the Legislature intended to be imposed. People v Ward, 206 Mich App 38, 42; 520 NW2d 363 (1994). In determining legislative intent, a court must identify the type of harm the Legislature intended to prevent and the amount of punishment it authorized. Id.

This Court in Ward held that the criminal sexual conduct statutes (which involve sexual assaults on people of all ages) and the child sexually abusive activity statute (which focuses on protecting children from sexual exploitation, assaultive or otherwise) prohibit conduct that violates distinct social norms and that the Legislature intended to impose dual punishment. Id. at 42-43. Likewise, we conclude that the kidnapping and child enticement statutes have distinct social purposes and that the Legislature intended separate punishments for the two crimes: the kidnapping statute protects people of all ages from being secretly confined or forcibly moved against their will, while the child enticement statute specifically addresses the social evil of luring children away from their homes and families by force or fraud. Moreover, both statutes carry a maximum penalty of life or any term of years. See People v Robideau, 419 Mich 458, 488-489; 355 NW2d 592 (1984).

Consequently, defendant's convictions of both crimes do not violate double jeopardy.

V

Finally, defendant asserts that the court erred in allowing him to be convicted of both charges when he was bound over on both charges in the alternative only. Defendant did not raise this issue before the trial court, and it is accordingly unpreserved. People v Grant, 445 Mich 535, 546; 520 NW2d 123 (1994). In any event, review of the record reveals that the district court bound over defendant on both charges, stating only that the prosecutor could, if necessary, later elect to proceed with respect to either one of the charges. This issue is without merit.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] This case is distinguishable from People v Stapf, 155 Mich App 491; 400 NW2d 656 (1986), where the evidence of the defendant's intent to kidnap was far more tenuous than in the instant case.