Michigan v. Barrera

John Barrera was charged with two counts of first-degree criminal sexual conduct, and two counts of second-degree criminal sexual conduct (CSC-II) for sexually assaulting his wife’s granddaughter. Defendant pleaded no contest as a fourth-offense habitual offender to two counts of CSC-II and two counts of third-degree criminal sexual conduct (CSC-III). At sentencing, defendant objected to the scoring of several Offense Variables (OVs). The court overruled all of defense counsel’s objections to the scoring of the OVs except for the objection to the score for OV 12. Specifically, over defense counsel’s objection, the court scored OV 8 at 15 points because defendant asported the victim to a place of greater danger during his commission of the crimes (defendant took the victim to his bedroom where he sexually assaulted her). In an unpublished order, the Court of Appeals denied for lack of merit defendant’s delayed application for leave to appeal. Defendant then sought leave to appeal with the Michigan Supreme Court. After review, the Supreme Court held that movement of a victim incidental to the commission of a crime qualified as asportation under OV 8. Therefore, the Court overruled the controlling case to the extent that they stood for the contrary proposition, and the Court concluded that the trial court properly scored OV 8 at 15 points. In light of the trial court’s error in scoring OV 11, the Court remanded this case for further proceedings. View "Michigan v. Barrera" on Justia Law