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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, FOR PUBLICATION June 2, 2015 9:15 a.m.

v No. 318479 Grand Traverse Circuit Court RYAN LOWELL BAILEY, LC No. 13-011601-FC

Defendant-Appellant.

Before: S HAPIRO , P.J., and G LEICHER and R ONAYNE K RAUSE , JJ.

R ONAYNE K RAUSE , J. (concurring in part and dissenting in part)

. I concur in all respects with the majority other than the majo rity’s analysis of the consecutive sentences imposed by the trial court. The majority profoundly misconstrues People v Ryan , 295 Mich App 388; 819 NW2d 55 (2012), and People v Brown , 495 Mich 962; 843 NW2d 743 (2014), and engages in an extremely limited analysis o f the facts in this matter. By equating a “same transaction” under MCL 750.520b(3) with “occur ring on the same day,” the majority wishes into being out of whole cloth a bright-line rul e that is clear, neat, simple, easily applied, and utterly wrong. Mor eover, no such rule is implied, much less dictated, by either Ryan or Brown . Rather than dispensing with any truly meaningful considerati on of the context of the offenses at issue, I would find that at least two of defendant’s acts of CSC-I were part of the “same transaction,” and therefore I would affirm defendant’ s sentences.

As the majority explains, sente ncing in Michigan is by default concurrent, but pursuant to MCL 750.520b(3), if a defendant is convicted of a charge of CSC -I, the trial court “may order [that the] term of imprisonment imposed under this section [is] to be served consecutively to any term of imprisonment imposed for any other criminal offense ari sing from the same transaction.” Critically, therefore, the trial c ourt’s discretion to impose a consecutive sentenc e here depends on whether Count I was part of the “ same transaction” as any other counts.

In Ryan , this Court observed that the Legislature has not defined “sam e transaction” by statute, but explained that the term had acquired “a unique leg al meaning” through its usage. Ryan , 295 Mich App at 402. This Court found “two particular sexual penetrations” to be part of the “same transaction” because they “sprang one from the other and had a connective relationship that was more than incidental” and “there was no r elevant disruption in time or in the flow of events between the two distinct offenses.” Id . at 403-404. In Brown , our Supreme Court, citing Ryan , expressed approval of a “same transaction” entailing “three s exual-2- penetrations [that] ‘grew out of a continuous time sequence’ an d had ‘a connective relationship that was more than incidental.’” Brown , 495 Mich at 963. Historically, the test was understood to be that “[t]he crimes were committed in a continuous time se quence and display a single intent and goal.” People v White , 390 Mich 245, 259; 212 NW2d 222 (1973), overruled on other grounds by People v Nutt , 469 Mich 565; 677 NW2d 1 (2004). Consequently, the definitio n of what constitutes a “same transact ion” is well esta blished and w ell understood.

Clearly, two acts that are immediately contiguous in time and space, as were the acts that formed the basis of a “same transaction” in Ryan , can be more obviously part of a “same transaction” than acts with any kind of separation between them . However, contiguous and continuous are not synonyms, and it is clearly critical that there must b e a relevant disruption between the acts rather than merely any disruption. Indeed, a “transaction” does not have any definitional limitations on scope, complexity, or duration. Tw o acts at issue in Ryan did, as the majority notes, occur on the same day, but I am frankly baffled by the majority’s apparent conclusion that this Court in Ryan somehow established that there is something magical or talismanic about acts falling on the same calendar date. Indee d, two acts occurring on the same day may not necessarily form part of a “continuous time sequence,” and eve n two acts occurring simultaneously may not be part of the same “continuous time sequence.” See People v Jackson
, 153 Mich App 38, 48-50; 394 NW2d 480 (1986). It is irrational and counterproductive to attempt to force what is fundament ally a totality-of-the-circum stances analysis into a completely arbitrary bright-line rule divorce d from the salient facts of t he particular case.

Defendant’s convictions were ba sed on several assaults against several victims over several years. There is no evidence that any of the acts that gave rise to defendant’s convictions occurred on the same day or immediately contiguous to each othe r, as was the situation in Ryan

. However, the victims, and other witnesses to the extent they no ticed defendant’s conduct with the victims, testified that defendant’s abuse was essentially c onstant and unremitting. After one victim left the house, defendant apparently transferred his tox ic attentions directly to another. Indeed, the victims testified that defendant subjected them to abuses on a daily basis, if not even more frequently. This evidence leaves no doubt that defendant’ s abuses were not discrete occurrences, but rather were part of a single, functionally unb roken enterprise. In other words, the incidents were deeply intertwined and had no relevant gap between them. Consequently, I conclude that, in this case and on these facts, they were clear ly part of the “same transaction.” The trial court was therefore within its discretion to impose c onsecutive sentences. To the extent I would extrapolate a “rule” appl icable to future cases, I woul d only hold that each case must be considered carefully by the trial court on its own merits and n ot stuffed into a box with no consideration for w hether it fits.

The majority does not address defendant’s other arguments atta cking his concurrent sentences; I find them unavailing. Defendant’s argument that t he trial court abused its discretion because imposition of consecutive sentences was not mandatory i s nonsensical: because the trial court was permitted to do so, this Court will not generally dis turb its decision unless that decision fell “outside [the] principled range of outcomes.” People v Babcock , 469 Mich 247, 269; 666 NW2d 231 (2003). I perceive no reason why a consecuti ve sentence here was unprincipled. Defendant also argues that the trial court shoul d have relied on objective and verifiable factors to impose a se ntence in excess of the guidel ines range established by the Legislature. This is equally nonsensical, because the consecut ive-sentencing law requires no-3- such special articulated findings, and this Court presumes that the Legislature understood and intended the laws it enacted.

I find no sentencing error. Cons equently, I would affirm defe ndant’s convictions and sentences in their entirety.

/s/ Amy Ronayne Krause