                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     FOR PUBLICATION
                                                                     June 2, 2015
               Plaintiff-Appellee,                                   9:15 a.m.

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

               Defendant-Appellant.


Before: SHAPIRO, P.J., and GLEICHER and RONAYNE KRAUSE, JJ.

RONAYNE KRAUSE, J. (concurring in part and dissenting in part).

        I concur in all respects with the majority other than the majority’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 of the facts in this matter. By
equating a “same transaction” under MCL 750.520b(3) with “occurring on the same day,” the
majority wishes into being out of whole cloth a bright-line rule that is clear, neat, simple, easily
applied, and utterly wrong. Moreover, no such rule is implied, much less dictated, by either
Ryan or Brown. Rather than dispensing with any truly meaningful consideration 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, sentencing 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 arising from the same transaction.”
Critically, therefore, the trial court’s discretion to impose a consecutive sentence 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 “same transaction” by
statute, but explained that the term had acquired “a unique legal 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 relevant 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 sexual



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penetrations [that] ‘grew out of a continuous time sequence’ and 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 sequence 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 definition of
what constitutes a “same transaction” is well established and well 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 be 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. Two 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. Indeed, two acts occurring on the same
day may not necessarily form part of a “continuous time sequence,” and even 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 fundamentally a totality-of-the-circumstances analysis into a completely
arbitrary bright-line rule divorced from the salient facts of the particular case.

        Defendant’s convictions were based 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 other, as was the situation in Ryan.
However, the victims, and other witnesses to the extent they noticed defendant’s conduct with
the victims, testified that defendant’s abuse was essentially constant and unremitting. After one
victim left the house, defendant apparently transferred his toxic 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 unbroken 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 clearly part of the “same transaction.”
The trial court was therefore within its discretion to impose consecutive sentences. To the extent
I would extrapolate a “rule” applicable to future cases, I would only hold that each case must be
considered carefully by the trial court on its own merits and not stuffed into a box with no
consideration for whether it fits.

        The majority does not address defendant’s other arguments attacking his concurrent
sentences; I find them unavailing. Defendant’s argument that the trial court abused its discretion
because imposition of consecutive sentences was not mandatory is nonsensical: because the trial
court was permitted to do so, this Court will not generally disturb 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 consecutive sentence here was
unprincipled. Defendant also argues that the trial court should have relied on objective and
verifiable factors to impose a sentence in excess of the guidelines range established by the
Legislature. This is equally nonsensical, because the consecutive-sentencing law requires no


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such special articulated findings, and this Court presumes that the Legislature understood and
intended the laws it enacted.

       I find no sentencing error. Consequently, I would affirm defendant’s convictions and
sentences in their entirety.



                                                         /s/ Amy Ronayne Krause




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