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




                          STATE OF MICHIGAN

                           COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN,                                    FOR PUBLICATION
                                                                    March 12, 2020
               Plaintiff-Appellee,                                  9:00 a.m.

v                                                                   No. 339452
                                                                    Berrien Circuit Court
MICHAEL SCOTT BARBER,                                               LC No. 2017-015214-FC

               Defendant-Appellant.


                                         ON REMAND

Before: BECKERING, P.J., and MURRAY C.J., and FORT HOOD, J.

PER CURIAM.

        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 vehicle, 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 third-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 PROCEDURAL 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       In its November 27, 2018 unpublished, per curiam opinion, this Court summarized the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


                                               -1-
a speed of 92 miles per hour. When Trooper Guild turned on his emergency lights
to make a traffic stop, 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 the 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 veered 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 Guild 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 highway, 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 to 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 firearm 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 death 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 point, two bystanders pulled Wise off of the trooper and held him to
the ground. While the bystanders fought with Wise, Trooper Guild tased Barber
before he was able to handcuff him. The trooper retrieved his firearm that had
fallen on the ground several feet from where he struggled with Barber. While the


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

        This 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 departure 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 double 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 Part III of this 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 REVIEW

        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 error 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 to 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 stand.

        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)



                                                  -3-
it protects against multiple punishments for the same offense.” Miller, 498 Mich at 17 (quotation
marks and citation omitted). This case involves the “multiple punishments” strand of the
prohibition against double jeopardy. See Miller, 498 Mich at 17. Where the Legislature
specifically authorizes cumulative punishment under two statutes, 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 be a violation of the multiple
punishments strand for a trial court to cumulatively punish a defendant for both offenses in a single
trial.” Id.

        In Miller, our Supreme Court held that “when considering whether two offenses are the
‘same offense’ in the context 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 are 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 jeopardy 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 to 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 23-24.

       The first criterion in determining legislative intent is the specific language of the statute.
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, to determine whether double jeopardy precludes defendant’s conviction of assault
by strangulation and AWIGBH arising from a single incident of assault, it 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 strangulation 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 (11th ed), p 399. Thus used, MCL 750.84(1) suggests that anyone who either (a),
assaults another with intent to great bodily harm, or (b), assaults another person by strangulation



                                                  -4-
or suffocation, is guilty of a felony, thus suggesting that subsections (1)(a) and (1)(b) are alternate
means of committing the same, single 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 crime,
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.” This
argument is made less persuasive by the fact that use of 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 AWIGBH 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, we 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 person. [Senate Bill No.
       848.]

Thus, the original language of the bill suggests that assault by strangulation would have been
considered a type, or subcategory, of AWIGBH. However, Legislators rejected this language in
favor of language that makes clear that an assault by strangulation is not necessarily a subcategory
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 not clear as to legislative intent regarding multiple
punishments. However, reading the statute as a whole, Miller, 498 Mich at 23, it is significant that
subsection (3) of the statute provides: “This section does not prohibit a person from being charged
with, 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 violates 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 demonstrates that the Legislature did
not intend to permit multiple punishments for violations of the subsections MCL 750.84(1)(a) and


                                                 -5-
(b). If the Legislature had intended to allow multiple punishments for both subsections (1)(a) and
(1)(b) arising out of the 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.

         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 the 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 violation of MCL 750.84 together with any other violation of law arising out of the same
conduct. 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 remedy 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 find 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.

        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




                                                 -6-
