People v. Barrera
Docket No. 151282
Trial-Lawyers' Bottom Line: If a victim is carried or moved to a place of greater danger, then OV-8 applies
Barrera pled guilty to multiple counts of criminal sexual conduct. During the course of his crime, he moved the victim from the living room into a bedroom. The question was whether this movement constituted “asportation” for the purposes of sentencing. MCL 777.38, also called Offense Variable (or “OV”) 8, adds points during sentencing in part when “a victim was asported to another place of greater danger or to a situation of greater danger.”
Two cases, People v. Thompson, 488 Mich. 888 (2010) and People v. Spanke, 254 Mich. App. 642, were previously cited to have held that OV 8 did not apply if the asportation was “merely incidental” to the commission of the offense being scored. In other words, if the movement of the victim was part of the underlying crime, then OV 8 would not apply. In a per curiam opinion, the Court rejected this rule and overruled both cases in relation to OV-8 jurisprudence. The Court has instead given the word its plain meaning: “A plain reading of asportation is this: If a victim is carried away or removed to another place of greater danger or to a situation of greater danger,” then OV-8 applies.
The Court said the earlier cases drew from the meaning of “asportation” in Michigan’s kidnapping jurisprudence. In that area of law, the Court had previously limited the meaning of “asportation” in People v. Adams, 389 Mich. 222 (1973). But the Court said that the Adams limitation was for constitutional reasons and in relation to kidnapping only. The concern in Adams was that the plain meaning of “asportation” would “convert a misdemeanor, for example, assault and battery, into a capital offense” because “it is obvious that virtually any assault, any battery, any rape, or any robbery involves some ‘intentional confinement’” of the victim. This dicta seems to suggest that under the plain meaning of “asportation” (and not the Adams meaning) that assault, battery, rape, or robbery would always constitute asportation—and thus OV-8 would always apply.
Full opinion here.