PEOPLE v. VAUGHN

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 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.

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

I

This Court first engrafted the asportation requirement onto forcible-confinement kidnapping in People v Adams, 389 Mich. 222, 230; 205 N.W.2d 415 (1973), in order to distinguish the common-law misdemeanor of false imprisonment and prevent overcharging. 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 N.Y.2d 527, 540; 297 N.Y.S.2d 913; 245 N.E.2d 688 (1969). In discussing the rationale for New York's version of the incidental asportation rule, the Court of Appeals of that state explained:

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 N.W.2d 692 (1984).

[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 [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.

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.

In People v Barker, 411 Mich. 291, 296; 307 N.W.2d 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, 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." 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.

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.

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 N.W.2d 266 (1979).]

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 N.W.2d 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 US ___; 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.]

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" must always be given.

200 Mich. App. 611, 617; 505 N.W.2d 41 (1993).

In People v Wesley, 421 Mich. 375, 391; 365 N.W.2d 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. 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.

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.

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.

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, 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.

The defendant chose not to testify at trial.

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. 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.

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.

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." 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.

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.

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 N.W.2d 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. Any incidental asportation instruction was superfluous, potentially confusing, and properly eliminated.

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 N.W.2d 11 (1985).

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 US ___; 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 F.2d 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 N.W.2d 783 (1986) (CAVANAGH, J., dissenting); People v Robideau, 419 Mich. 458, 504-513; 355 N.W.2d 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.

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 F.2d 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 F.2d 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").

Assuming the rule set forth in People v Woods, 416 Mich. 581; 331 N.W.2d 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, 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.

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 N.W.2d 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 N.W.2d 867 (1975).

See also People v Hearn, 354 Mich. 468, 473; 93 N.W.2d 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 N.W.2d 359 (1946); People v Hernandez, 84 Mich. App. 1, 10; 269 N.W.2d 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 . . .").

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).

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, 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.

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 F.2d 9, 11 (CA 2, 1991).

Compare Hoover v Garfield Heights Municipal Court, 802 F.2d 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 P.2d 801 (1986) (same); State v Hamilton, 30 Conn. App. 68, 77; 618 A.2d 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 N.E.2d 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 F.2d 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 F.2d 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).

III

The United States Supreme Court's recent decision in Sullivan v Louisiana, 508 US ___; 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 US ___, ___; 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 F.2d 609, 636 (CA 9, 1993) (Hug, J., dissenting), opinion withdrawn and superseded by 21 F.3d 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 F.3d 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.]

In Vigil v State, 859 P.2d 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 P.2d 664 (emphasis added).

After Sullivan, 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.

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 F.2d 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.

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 F.2d 422 (CA 9, 1991), 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 has recently followed Martinez. United States v Mendoza, 11 F.3d 126 (CA 9, 1993).

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 F.2d 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 F.2d 424, quoting Rose v Clark, supra.

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.]

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 F.2d 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.

See also State v Orosco, 113 N.M. 780; 833 P.2d 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 P.2d 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 F.2d 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).

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." 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. The failure to instruct on the asportation element in this case cannot be considered harmless.

Ante, p 234.

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).

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, 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.

Ante, p 238.

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," it was successfully contested on a number of details.

BOYLE, J., ante, pp 253-254.

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 asportation instruction was necessary.

People v Adams, 389 Mich. 222; 205 N.W.2d 415 (1973).

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. 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. 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.

BOYLE, J., ante, p 252.

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.