If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.

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### S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff

- Appellee, FOR PUBLICATION March 12, 2020

9:00 a.m.

v No. 339452

Berrien Circuit Court

MICHAEL SCOTT BARBER, LC No. 2017

- 015214

- FC

Defendant

- Appellant.

ON REMAND

Before: B ECKERING

, P .J., and M URRAY C.J., and F ORT H OOD , J.

P ER C URIAM

.

This appeal arises from defendant’s jury trial convictions of assault by strangulation, MCL 750.84(1)(b) , third

- degree fleeing and eluding, MCL 257.602a(3) , assaulting and obstructing a police officer causing a bodily injury requiring medical attention, MCL 750.81d(2) , attempt to disarm a police officer, MCL 750.479b(2) , receiving and possessing a stolen veh icle, MCL 750.535(7) , and assault with intent to commit great bodily harm less than murder (AWIGBH), MCL 750.84(1)(a) . The trial court sentenced defendant to 10 to 15 years in prison for the assault by strangulation conviction, 60 to 90 months for the thi rd

- degree fleeing and eluding conviction, 24 to 36 months for the attempt to disarm a police officer conviction, 60 to 90 months for the receiving and possessing a stolen vehicle conviction, 10 to 15 years for the AWIGBH conviction,

and a consecutive 48 to 72 months for the assaulting and obstructing a police officer causing a bodily injury requiring medical attention conviction. The sole issue on remand is whether double jeopardy precludes defendant’s conviction of both assault by strangulation and AWIGBH arising from a single incident of assault. For the reasons explained below, we conclude that it does.

I. FACTUAL AND PROC EDURAL BACKGROUND

In its November 27, 2018 unpublished, per curiam opinion, this Court summarized the underlying facts as follows:

On February 20, 2017, Michigan State Police Trooper Garry Guild observed Barber driving a motorcycle, which was later determined to be stolen, on US

- 31 at- 2

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a speed of 92 miles per hour. When Trooper Guild turned on his emergency lights

to make a traffic s top, Barber looked back at the police cruiser, put on his turn signal, moved into the right lane, pulled onto the shoulder of the highway, and slowed to approximately 60 miles per hour. Barber did not stop, however, and he quickly accelerated back onto th e highway. Trooper Guild notified police dispatchers that the motorcyclist was fleeing from a traffic stop, and the trooper activated his siren in addition to his emergency lights. Barber twice drove onto exit ramps as if leaving the highway, but he veer ed back toward the highway and continued his flight from the state police trooper. Barber ultimately lost control of the motorcycle and crashed in the grass next to the highway, throwing Barber several feet from the motorcycle onto the ground.

Trooper Gu ild got out of his vehicle, pulled his firearm out of its holster, and yelled at Barber to stay back and get down on the ground. Barber failed to comply with the trooper’s commands. Instead, Barber got up off the ground and staggered toward the trooper. Trooper Guild was concerned that Barber had a weapon and that Barber might have been injured. Because the trooper did not see anything in Barber’s hands, he determined that Barber did not have a weapon and

decided to holster his firearm. Barber advanced toward Trooper Guild so quickly that the trooper did not have a chance to fully holster the firearm.

Trooper Guild put out his left hand and pushed Barber away from him. Barber fell backward, and the two men fell on the ground. Trooper Guild attempted to handcuff Barber, who continued to struggle with the trooper. At some point during the scuffle, the trooper’s firearm ended up on the ground. While the trooper was struggling to handcuff the noncompliant Barber, a vehicle pulled off the side of the hig hway, and an occupant of that vehicle threw a soda bottle at Trooper Guild. An individual, later identified as Barber’s brother, Travis Wise, got out of the car and attempted to push the trooper off of Barber. Wise then wrapped his arm around the trooper ’s neck, choked him, violently pulled him back several feet, and yelled at Barber to run. Trooper Guild felt his breathing getting heavy and heard himself struggling to breathe while he fought to maintain an airway. Barber began to run, but he returned t o where Wise was still choking the trooper. Barber then reached toward the trooper’s firearm holster on the right side of his utility belt and began tugging at the holster. Trooper Guild instinctively put his hand down to try to prevent removal of the fi rearm from the holster. At that moment, Trooper Guild did not know that his firearm was not in its holster. While the trooper struggled to breathe, he believed that he was balancing the risk of being choked to death against the risk of being shot to deat h with his own firearm. Trooper Guild testified that Barber punched him twice in the jaw, causing him to feel stunned. Trooper Guild believed that he was going to lose consciousness in a matter of seconds, and he thought he was going to die.

At that poi nt, two bystanders pulled Wise off of the trooper and held him to the ground. While the bystanders fought with Wise, Trooper Guild ta s ed Barber before he was able to handcuff him. The trooper retrieved his firearm that had fallen on the ground several fe et from where he struggled with Barber. While the- 3

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trooper took Barber to the patrol cruiser, Barber continued to struggle, attempting to pull away and run away. After Barber was placed in the backseat of the patrol cruiser, he opened the rear door and st arted running away. One of the bystanders ran after Barber and recaptured him. Barber was finally secured in a second police officer’s cruiser. [ People v Barber , unpublished per curiam opinion, issued November 27, 2018 (Docket No. 339452), pp 1

- 2, vacat ed in part and remanded People v Barber , ___ Mich ___; 936 NW2d 451 (2019) .]

Th is Court affirmed defendant’s convictions and sentences. Barber , unpub op at 1. It concluded that the trial court did not err by denying defendant’s motion for a directed verdict, defendant waived his right to challenge the manner in which voir dire was conducted, and the trial court did not abuse its discretion by imposing an upward dep arture and consecutive sentences. Id

. at 2

- 4, 5

- 7. In Part III of the opinion , which is relevant on remand, this Court concluded that defendant’s convictions for assault by strangulation and AWIGBH did not violate the constitutional protection against do uble jeopardy because each offense requires proof of an

element that the other does not. Id . at 4

- 5.

On February 4, 2019, defendant filed an application for leave to appeal to the Michigan Supreme Court

. On December 23, 2019, the Supreme Court vacated P art III of th is Court’s opinion because it “ did not address the defendant’s argument that the Legislature did not intend for a single act to result in convictions for both assault with intent to do great bodily harm less than

murder , MCL 750.84(1)(a), and assault by strangulation , MCL 750.84(1)(b) .” People v Barber

, ___ Mich ___, ___; 936 NW2d 451 (2019) (citations omitted). The Supreme Court remanded to this Court for reconsideration in light of People v Miller , 498 Mich 13, 19; 869 NW2d 204 (2015),

and denied leave to appeal in all other respects. Id

.

II. STANDARD OF REV IEW

Because defendant raised his double

- jeopardy challenge for the first time on appeal, it is not preserved for appellate review. “ However, a double jeopardy issue presents a significant constitutional question that will be considered on appeal regardless of whether the defendant raised

it before the trial court. ” People v McGee , 280 Mich App 680, 682; 761 NW2d 743 (2008)

. We review defendant’s unpreserved claim for plain er ror affecting his substantial rights.

III. ANALYSIS

Defendant argues that the Legislature did not intend that a single act of strangulation that is sufficient also to prove AWIGBH should result in two separate convictions under MCL 750.84. According t o defendant, the plain language of the statute provides that a person can violate it either by strangulation or by other means. Thus, the Court should vacate defendant’s conviction for AWIGBH while allowing the conviction for assault by strangulation to s tand.

The Double Jeopardy Clauses of the United States Constitution and the Michigan Constitution protect against multiple punishments for the same offense. People v Ford , 262 Mich App 443, 447

- 448; 687 NW2d 119 (2004). “The prohibition against double jeopardy protects individuals in three ways: (1) it protects against a second prosecution for the same offense after acquittal; (2) it protects against a second prosecution for the same offense after conviction; and (3)- 4

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it protects against multiple punish ments for the same offense.” Miller , 498 Mich at 1 7 (quotation marks and citation omitted). This case involves the “multiple punishments” strand of the prohibition against double jeopardy. See Miller

, 4 98 Mich at 17. Where the Legislature specifically authorizes cumulative punishment under two statu t es, the multiple punishments strand

is not violated. Id . at 18. “Conversely, where the Legislature expresses a clear intention in the plain language of a statute to prohibit multiple punishments, it will b e a violation of the multiple punishments strand for a trial court to cumulatively punish a defendant for both offenses in a single
trial.” Id

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In Miller , our Supreme Court held that “when considering whether two offenses are the

‘same offense’ in the co ntext of the multiple punishments strand of double jeopardy,” courts “must first determine whether the statutory language evinces a legislative intent with regard to the permissibility of multiple punishments. If the legislative intent is clear, courts ar e required to abide by this intent.” Id . at 19 (citation omitted). If the legislative intent is not clear, then courts must apply the “abstract legal elements” test to determine the legislative intent. Id

.

At issue in Miller was whether double jeopar dy precluded convictions of both operating while intoxicated (OWI) under MCL 257.625(1) and operating while intoxicated causing serious impairment of the body function of another person (OWI

- injury) under MCL 257.625(5) , based on a single intoxicated driving incident

. Miller , 498 Mich at 20 The Court concluded that, although the statutory provisions at issue were silent regarding multiple punishments, the specific authorization for multiple punishments found in another subsection of the statute led t o the conclusion that the Legislature did not intend to permit multiple punishments for OWI and OWI

injury offenses arising from the same incident. Id . at 23

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The first criterion in determining legislative intent is the specific language of the statut e. People v Lively , 470 Mich 248, 253; 680 NW2d 878 (2004). The Legislature is presumed to have intended the meaning it plainly expressed. People v Gardner , 482 Mich 41, 50; 753 NW2d 78 (2008). Thus , t o determine whether double jeopardy precludes defen dant’s conviction of assault by strangulation and AWIGBH arising from a single incident of assault , i t is necessary to first consider the language of the statutory provisions at issue. MCL 750.84(1) provides:

A person who does either of the following is guilty of a felony punishable by imprisonment for not more than 10 years or a fine of not more than $5,000.00,

or both:

(a) Assaults another person with intent to do great bodily harm, less than

the crime of murder.

(b) Assaults another person by strangu lation or suffocation.

The plain language of this subsection does not expressly address multiple punishments for AWIGBH and assault by strangulation. On the one hand, the statute provides that a person who

“ does either of the following is guilty of a felony

. . . .” Used as a pronoun , “either” means “the one or the other”; for example, “take either of the two roads.” Merriam

- Webster’s Collegiate Dictionary (11 th ed), p 399. Thus used, MCL 750.84(1) suggests that anyon e who either (a),

assaults another with intent to great bodily harm

, or (b), assaults another person by strangulation- 5

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or suffocation

, is guilty of a felony , thus suggesting that subsections (1)(a) and (1)(b) are alternate means of committing the same , sing le offense , i.e., “ a felony .”

On the other hand, the statute does not expressly address the situation in which a single act

constitutes both types of assaults. The prosecution asserts that the Legislature’s use of the word

“either” does not show an intent to list alternate means of committing the same offense. The prosecution identifies other statutes that it contends provide alternative means of committing an

offense , and observes that those statutes set forth alternate means of committing a specified cr ime, not simply “a felony,” as in MCL 750.84 . For example, MCL 750.110a(4) provides: “A person is guilty of home invasion in the third degree if the person does either of the following.” The implication seems to be that when the Legislature intends a statute to provide alternate means of committing a crime, it specifies the crime, rather than broadly describing it as “a felony.” Th is argument is made less persuasive by the fact that use o f the phrase “a felony” in MCL 750.84

, is necessary because the two types of assault listed in this statute have different names. By contrast, the types of home invasion listed in MCL 750.110a(4) are all called third

- degree home invasion.

The fact that A WIGBH and assault by strangulation have different names does not clearly

demonstrate the Legislature’s intent to allow the same conduct to give rise to cumulative punishment under subsections (1)(a) and (1)(b) rather than to identify two alternate ways one could be guilty of a single felony

.

The prosecution argues that its position is strengthened by the legislative history of MCL

750.84

. Again, w e disagree. The statute as introduced by the original Senate bill provided:

A person who assaults another with intent to do great bodily harm, less than the crime of murder, including, but not limited to, assaulting another by strangulation or suffocation, is guilty of a felony punishable by imprisonment in the state prison not more than 10 years or by fine of not more than $5,000.00, or both. As used in this section, “strangulation or suffocation” means intentionally impeding normal breathing or circulation of the blood by applying pressure on the throat or neck or by blocking the nose or mouth of another per son. [Senate Bill No. 848.]

Thus, the original language of the bill suggests that assault by strangulation would have been considered a type , or sub category, of AWIGBH. However, Legislators rejected this language in favor of language that makes clear tha t an assault by strangulation is not necessarily a sub category
of AWIGBH. Contrary to the prosecution’s argument, the rejection of the original language does not show a clear intent to allow for multiple punishments.

Read in isolation, MCL 750.84(1) is n ot clear as to legislative intent regarding multiple punishments. However, reading the statute as a whole, Miller , 498 Mich at 23 , it is significant that

s ubsection (3) of the statute provides: “This section does not prohibit a person from being charged

w ith, convicted of, or punished for any other violation of law arising out of the same conduct as
the violation of this section.” MCL 750.84(3)

. Thus, subsection (3) expressly allows multiple convictions and punishments where the same conduct violate s MCL 750.84(1) and some other

criminal statute. The fact that the Legislature expressly authorized multiple punishments for “the

violation of this section” and any other statutory violations de monstrates that the Legislature did not intend to permit multiple punishments for violations of the subsections MCL 750.84(1)(a) and- 6

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(b) . If the Legislature had intended to allow multiple punishments for both s ubsections (1)(a) and (1) (b) arising out of t he same conduct , it clearly knew how to do so. See Miller , 498 Mich at 24

- 25 . Additionally, to interpret MCL 750.84(1) as permitting multiple punishments for its subsections would render the specific authorization in MCL 750.84(3) surplusage. See Miller , 498

Mich at 25

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We conclude that MCL 750.84 reflects the Legislature’s intent that a person is guilty of a felony if he or she commits either AWIGBH or an assault by strangulation or suffocation

. Although t he statute does not permit “a trial court to cumulatively punish a defendant for both offenses in a single trial,” Miller , 498 Mich at 18, it does allow a trial court to punish a defendant

for violati on of MCL 750.84 together with any other violation of law arising out of the same

c onduct

. Therefore, defendant’s convictions of assault by strangulation and AWIGBH for the same conduct violated the double jeopardy prohibition. This is true even though concurrent sentences were imposed for these convictions. See id . at 26 n 34

. To re medy a double jeopardy violation, it is appropriate to “ affirm the conviction of the higher charge and to vacate the lower
conviction.” People v Herron , 464 Mich 593, 609; 628 NW2d 528 (2001) . In this case, neither assault by strangulation nor AWIGBH is a higher charge

, and the same sentence was imposed for

each conviction. Defendant requests that the AWIGBH conviction be vacated; because assault by strangulation is more factually specific and was the first count in defendant’s judgment of sentence

, we f ind no reason to disagree. Thus, we vacate the AWIGBH conviction and remand the matter to the trial court for resentencing. See Miller , 498 Mich at 27

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We vacate defendant’s conviction and sentence for AWIGBH and remand to the trial court for resentencing in accordance with this opinion. We do not retain jurisdiction.

/s/ Jane M. Beckering /s/ Christopher M. Murray

/s/ Karen M. Fort Hood