Order                                                                       Michigan Supreme Court
                                                                                  Lansing, Michigan

  October 28, 2011                                                                  Robert P. Young, Jr.,
                                                                                              Chief Justice

  143403                                                                            Michael F. Cavanagh
                                                                                          Marilyn Kelly
                                                                                    Stephen J. Markman
                                                                                    Diane M. Hathaway
                                                                                        Mary Beth Kelly
  PEOPLE OF THE STATE OF MICHIGAN,                                                      Brian K. Zahra,
            Plaintiff-Appellee,                                                                    Justices


  v                                                      SC: 143403
                                                         COA: 303471
                                                         Chippewa CC: 10-000486-FH
  LEONARD GORDON FLAGEL,
           Defendant-Appellant.

  _________________________________________/

          On order of the Court, the application for leave to appeal the May 26, 2011 order
  of the Court of Appeals is considered, and it is DENIED, because we are not persuaded
  that the question presented should be reviewed by this Court.

        YOUNG, C.J. (concurring).

          In this case, the 75-year-old defendant sexually assaulted the 8-year-old victim
  over the course of a year. He pleaded guilty to three counts of criminal sexual conduct in
  the second degree. At sentencing, defendant was scored 15 points under offense variable
  8 (OV 8) for asportation of a victim to a place of greater danger because he took the
  victim to his hot tub or isolated places on the beach in order to sexually assault her. On
  appeal here, defendant argues that the trial court erred in assessing these points, relying
  on this Court’s order in People v Thompson, which held that where movement of a victim
  is “incidental to commission of the crime,” it does not amount to asportation.1

        As I stated in Thompson: there is no “bedroom exception” to OV 8, and thus even
  where a defendant takes a victim to places that are “traditionally favored location[s] for


  1
     488 Mich 888 (2010). In Thompson, the defendant had sexual relations with his 13-
  year old stepdaughter on over 70 occasions, always in the defendant’s or victim’s
  bedroom—places of relative seclusion where the victimization could occur without
  interruption or discovery by another person in the house.
                                                                                                               2

sexual activity,” he may still be assessed points pursuant to OV 8 if that asportation is to
a place or situation of greater danger.2 Contrary to defendant’s view, this Court’s order
in Thompson should not be read as having created a categorical new exception to OV 8
covering favored locations for sexual activity, such as a bedroom or, apparently, a hot tub
or isolated place at the beach.

        Because defendant took the victim to places of greater danger where others were
less likely to discover defendant committing the sexual assaults, he was appropriately
assessed 15 points under OV 8.




2
   See People v Thompson, 488 Mich 888, 889 (2010) (YOUNG, J., joined by CORRIGAN,
J., dissenting).



                         I, Corbin R. Davis, 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.
                         October 28, 2011                    _________________________________________
       p1025                                                                 Clerk
