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BlogsPublications | April 15, 2017
2 minute read

Statute means what it says: any movement of victim to a place of greater danger supports OV 8 score.

Judicial additions to a plainly defined word are impermissible, said the Michigan Supreme Court. In People v. Barrera, No. 151282, the court held that the trial court had correctly decided the scoring of Offense Variables (OVs) for a crime of sexual assault. Rejecting prior holdings that expanded the requirements in the relevant criminal statute, the court found that the statute means what it says—any movement, or “asportation,” that involves moving the victim to a place of greater danger results in OV 8 being scored at 15 points. The statute does not provide an “incidental movement” exception, and courts are not at liberty to add one.

People v. Barrera concerns a defendant who sexually assaulted his wife’s granddaughter and “pleaded no contest as a fourth-offense habitual offender, MCL 769.12, to two counts of CSC-II and two counts of third-degree criminal sexual conduct (CSC-III), MCL 750.520d.” The defendant had moved the victim to his bedroom to commit the assault, and the trial court assigned 15 points under OV 8 for the asportation.

“Asportation,” for purposes of the Michigan criminal code, is the moving of the victim to a place of greater danger prior to committing the crime. But several Michigan courts had previously held that the movement must not be “merely incidental to the commission of another underlying lesser or coequal crime.” In other words, the case law had created an “incidental movement” exception to the clear language of the statute. That exception was created to avoid constitutional violations. Under a broad interpretation of “asportation,” a prosecutor could bring kidnapping charges for any crime that involved a defendant incidentally moving a victim while committing a lesser offense.

But, seeing no potential constitutional issues at play in this case, the Michigan Supreme Court rejected that idea. Noting that the statute does not provide any “incidental movement” exception, the court overruled People v. Thompson and People v. Spanke “[t]o the extent [they] have been interpreted to have created an incidental-movement exception to OV 8.” Put simply, “Under the plain meaning of the term ‘asportation,’ the movement of a victim that is incidental to the commission of a crime nonetheless qualifies as asportation.”

The court therefore upheld the trial court’s findings for OV 8, but remanded for reconsideration of an error concerning OV 11 (not discussed in detail in the MSC opinion).