                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   June 11, 2015
               Plaintiff-Appellee,

v                                                                  No. 319942
                                                                   Kent Circuit Court
HENRY RICHARD HARPER,                                              LC No. 12-006969-FC

               Defendant-Appellant.


Before: HOEKSTRA, P.J., and O’CONNELL and MURRAY, JJ.

MURRAY, J. (concurring in part, dissenting in part).

       I concur with the majority’s opinion in all respects except that pertaining to consecutive
sentencing. For the reasons set forth below, I would hold that defendant’s abuse of D.A. and
D.H. did “aris[e] from the same transaction” within the meaning of MCL 750.520b(3), and
accordingly, would affirm defendant’s consecutive sentences.

        MCL 750.520b(3) provides that a sentence for CSC-I can be served consecutive to any
term of imprisonment imposed for any other crime “arising from the same transaction.” Here,
the transaction was defendant’s singular scheme to get both boys to his home so he could abuse
them, either individually or together. Defendant approached the victims’ parents at the same
time, requested that both boys work at his house, and his intent was to abuse both boys once they
went to his house. Both crimes thus arise from the same transaction. In interpreting the relevant
statutory language, the majority looks to People v Ryan, 295 Mich App 388, 400-401; 819
NW2d 55 (2012), for guidance on the meaning of that statute. However, the majority’s
interpretation of that case’s temporary component is overly narrow. In that case, this Court
concluded that the criminal acts of sexual conduct arose out of the same transaction where one
“was immediately followed” by the other. Id. at 403. But immediacy is not the touchstone of
whether offenses arise from the same transaction. Rather, the test is temporal continuity coupled
with “a connective relationship that was more than incidental.” Id. at 403. The question then is
not exclusively how much time elapsed between related offenses, but whether temporal
continuity exists between acts that are unified with a single intent to the same transaction.
People v Sturgis, 427 Mich 392, 401; 397 NW2d 783 (1986). Indeed, in explaining the temporal
component of the same-transaction test, this Court has noted that acts that are simultaneous are
not necessarily continuous and that “mere temporal happenstance” is not enough. See People v
Jackson, 153 Mich App 38, 46, 50; 394 NW2d 480 (1986).


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        Mindful of this, the fact that defendant’s sexual abuse of the victims did not occur in
rapid succession does not mean those acts did not “[grow] out of a continuous time sequence.”
Ryan, 295 Mich App at 402 (citation omitted). To the contrary, defendant asked the victims’
mother at the same time for both boys’ assistance, and in succession, each boy visited
defendant’s house and experienced the nearly identical abuse. This is significant, for it reveals
that from the start, defendant’s singular intention was to abuse both boys in a specific way.
Moreover, the fact that defendant requested the second victim after he finished abusing the first
shows that the abuse of both was part of a single, continuous plan. Like Ryan, “these two
particular sexual [acts] sprang one from the other and had a connective relationship that was
more than incidental.” Id. at 403. The simple fact that the plan in this case unfolded over the
course of a couple of days rather than a couple of seconds does not mean that the time sequence
was not continuous. Rather, it merely shows that defendant’s single goal required time to
execute.

        Accordingly, defendant’s sentence was in accord with MCL 750.520b(3) and I would
affirm in this respect.



                                                           /s/ Christopher M. Murray




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