Order                                                                                       Michigan Supreme Court
                                                                                                  Lansing, Michigan

  September 29, 2016                                                                                  Robert P. Young, Jr.,
                                                                                                                Chief Justice

  151282                                                                                              Stephen J. Markman
                                                                                                           Brian K. Zahra
                                                                                                   Bridget M. McCormack
                                                                                                         David F. Viviano
                                                                                                     Richard H. Bernstein
  PEOPLE OF THE STATE OF MICHIGAN,                                                                         Joan L. Larsen,
            Plaintiff-Appellee,                                                                                      Justices

  v                                                                SC: 151282
                                                                   COA: 324831
                                                                   Saginaw CC: 14-039708-FC
  JOHN JOSEPH BARRERA,
            Defendant-Appellant.

  _________________________________________/

         On order of the Court, the application for leave to appeal the January 21, 2015
  order of the Court of Appeals is considered. We DIRECT the Saginaw County
  Prosecuting Attorney to answer the application for leave to appeal within 28 days after
  the date of this order. The prosecutor shall specifically address whether, pursuant to
  People v Thompson, 488 Mich 888 (2010) and People v Spanke, 254 Mich App 642
  (2003), Offense Variable 8, MCL 777.38, should not have been scored in this case where
  the movement was “incidental” to the offense of criminal sexual conduct in the second
  degree. See also People v Hardy, 494 Mich 430, 442 (2013) (“[A]bsent an express
  prohibition, courts may consider conduct inherent in a crime when scoring offense
  variables.”).

        The application for leave to appeal remains pending.




                          I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                    foregoing is a true and complete copy of the order entered at the direction of the Court.
                          September 29, 2016
           t0922
                                                                              Clerk
