(concurring). I concur in the result reached by the lead opinion, reversing the decision of the Court of Appeals. I write separately because the lead opinion, like the majority of the panel of the Court of Appeals, erroneously assumes that every charge of forcible-confinement kidnapping necessarily requires inclusion of the "merely incidental asportation” requirement articulated for the guidance of trial judges by the committee on standard jury instructions for criminal cases. Our precedent does not require the prosecution to prove a negative, that is, that movement was not merely incidental to another crime. What is required is proof of a positive act that is not "merely incidental” to another offense.
There was no error in the trial judge’s instruction to the jury in this case. The judge instructed the jury on the duty to find that the prosecution had proven all the essential elements of both forcible-confinement, false-imprisonment kidnapping and first-degree criminal sexual conduct beyond a reasonable doubt, including the requirement under the kidnapping charge that the victim be forcibly moved for the purpose of kidnapping. As has been ably pointed out by the lead opinion, if such asportation element was found to be proven to the satisfaction of the jury, as it was, the movement was more than just incidental to the commission of esc, and established that "the crime of forcible-confinement kidnapping both preceded *247and was complete well before defendant duped complainant into entering his motel” where the commission of the esc occurred. Ante at 245.
Where two crimes charged are coequal offenses, and it is beyond question that any movement proven was extensive and occurred well in advance of the commission of the esc, the concerns that dictate the instruction that the jury find an asportation not merely incidental to an underlying crime1 are not present. If the proofs of the prosecution and the charge to the jury require a finding of a significant movement for the purpose of abduction and kidnapping, there is no error in tailoring the standard jury instruction and choosing not to give the "merely incidental” language to the jury. If the facts, as alleged, are found by the jury to have occurred beyond a reasonable doubt, the movement is, as a matter of law, not merely incidental to a separate, coequal charge of forcible-confinement, false-imprisonment kidnapping.
i
This Court first engrafted the asportation requirement onto forcible-confinement kidnapping in People v Adams, 389 Mich 222, 230; 205 NW2d 415 (1973), in order to distinguish the common-law misdemeanor of false imprisonment and prevent overcharging.2 In that case, we also adopted the rule from New York and California jurisprudence that "the movement element must not be merely incidental to the commission of a lesser underlying *248crime, i.e., it must be incidental to the commission of the kidnapping.” Id. at 236. The asportation element and incidental asportation rule were adopted to provide an alternative to true movement and were " 'designed to prevent gross distortion of lesser crimes into a much more serious crime by excess of prosecutorial zeal.’ ” Id. at 232, quoting People v Miles, 23 NY2d 527, 540; 297 NYS2d 913; 245 NE2d 688 (1969). In discussing the rationale for New York’s version of the incidental asportation rule, the Court of Appeals of that state explained:
[I]n any robbery, there is a restraint of "false imprisonment” and in every rape there is a similar restraint and often removal in some limited sense. It is this kind of factual merger with the ultimate crime of the preliminary, preparatory, or concurrent action that the rule is designed to recognize, and thus prevent unnatural elevation of the "true” crime to be charged. [Id. at 539.]
The New York court went on to caution, however, that
the Levy-Lombardi[3] [incidental asportation] rule was designed to prevent gross distortion of lesser crimes into a much more serious crime by excess of prosecutorial zeal. It was not designed to merge "true” kidnappings into other crimes merely because the kidnappings were used to accomplish ultimate crimes of lesser or equal or greater gravity. Moreover, it is the rare kidnapping that is an end in itself; almost invariably there is another ultimate crime. [Emphasis added.]
In the present case, the facts presented by the *249prosecution and accepted by the jury do not present the kind of factual merger or preparatory action that requires a merely incidental instruction to guard against overcharging. The kidnapping that occurred was a "true” kidnapping, committed and completed before the esc, although used to accomplish the ultimate crime of sexual assault.4
In People v Barker, 411 Mich 291, 296; 307 NW2d 61 (1981), the Court expanded the incidental asportation rule of Adams to apply when two coequal offenses are charged. The issue in Barker was whether it was proper to affirmatively instruct the jury that it could satisfy the asportation element necessary for kidnapping by finding movement "merely” incidental to another offense when the punishment for both offenses was equal. While the Court did not focus on whether the crime charged was forcible-confinement kidnapping as it did in Adams,5 we again acknowledged that asportation was an alternative to other forms of kidnapping, id. at 298, and we again addressed the possibility of "excessive prosecutorial zeal.”6 In Barker, *250the manifestation of that zeal was the possibility that a prosecutor could transform one offense into two by using the incidental movement from one coequal charge to fulfill the asportation requirement of a second offense of kidnapping.7
*251However, while it is error to instruct the jury that movement incidental to committing another offense satisfies the asportation element, it does not follow, as the Court of Appeals concluded, that the words "asportation . . . not merely incidental to”8 must always be given.
In People v Wesley, 421 Mich 375, 391; 365 NW2d 692 (1984), we observed that the asportation requirement is applicable only to false-imprisonment kidnapping, not to the other forms of kidnapping incorporated in the Michigan statute. We explained that the interpolation of asportation as an element is not required for other forms of kidnapping because the elements of those other forms do not present the danger of overcharging or inappropriate punishment.9 We specifically held, *252for example, that no movement is needed to establish the offense of forcible confinement with intent to secretly confine because the required element of a purpose to cause such secret confinement served to avoid any overbreadth concerns. Id. at 389-390.10
As is apparent, the purpose of the inclusion of the asportation element and incidental asportation rule in forcible-confinement, false-imprisonment kidnapping is to (1) prevent the literal application of the kidnapping statute to sweep so broadly as to allow the improper elevation of lesser crimes to capital offenses, and (2) guard against the use of movement incidental to another coequal offense, charged along with kidnapping, to fulfill the movement requirement of forcible-confinement kidnapping to improperly present the prosecution with two opportunities to convict the defendant of a capital offense, instead of one.
. ii
Our concern in the present case is not with the first danger. The jury was instructed that asportation was an element of kidnapping that had to be found beyond a reasonable doubt, and there has been no suggestion that a lesser crime, such as assault, has been surreptitiously elevated to a capital offense by allowing some incidental movement to satisfy the asportation requirement. The danger then, if any, presented by the absence of a "merely incidental” asportation instruction, is the possible use by the jury of movement incidental to *253the coequal charge of esc to fulfill the asportation element of the kidnapping offense. As is true of the first possible hazard, on these facts, any such peril is nonexistent.
Evidence of extensive movement was presented at trial. According to testimony of the complainant,11 she joined the defendant voluntarily at approximately 1:40 a.m. They then proceeded to a party store to purchase alcohol, a gas station to make a phone call, and a parking lot to smoke marijuana. The complainant testified that she was no longer accompanying the defendant willingly after leaving the party store, that she tried to flee the moving vehicle once and was struck by the defendant before arriving at his friend’s home, that she later fled down the road from the friend’s home, and that defendant caught her, struck her, and forced her back into the car, all before proceeding to the motel where the sexual assault occurred.
While this testimony did not absolve the prosecutor of the duty to prove the element of movement for the purpose of kidnapping beyond a reasonable doubt, it did present ample evidence of movement independent of the ultimate commission of esc.12 Indeed, the evidence is so overwhelming that the lead opinion finds that ”[c]omplainant’s *254forcible confinement to defendant’s vehicle was asportation incidental exclusively to kidnapping, and no juror examining this record evidence against the backdrop of proper instructions on asportation could have concluded otherwise.” Ante at 242-243 (emphasis in original). The question, of course, is why, if there was such movement, it was error to eliminate the merely incidental language from the proposed standard jury instruction.
The jury was instructed that "the defendant must have forcibly moved or caused the victim to be moved from one place to another for the purpose of abduction and kidnapping.”13 This asportation for the purpose of kidnapping is the essential element the jury must find, not asportation not merely incidental to another offense charged. See Adams and Barker, supra.
Although "[jjurors are the sole judges of the facts and neither the trial court nor this court can interfere with their exercise of that right,” People v Miller, 301 Mich 93, 100; 3 NW2d 23 (1942), where the proofs as presented indicate completed offenses, it is not a usurpation of the jury’s function for the trial court to charge movement for the purpose of kidnapping. Where the proofs raise no question of fact or law regarding whether a false-imprisonment kidnapping is merely incidental to another crime, an instruction that the jury must find forcible movement for the purpose of kidnapping is a correct statement of law.
Under the particular facts of a given case, the *255dangers that require the instruction that the asportation element be found independent of its occurrence in the commission of another crime are absent. In the present case, the jury found asportation beyond a reasonable doubt on the basis of evidence presented by the prosecution that the lead opinion accurately characterizes as "overwhelming and unrefuted record evidence indicating that most of complainant’s involuntary confinement and asportation was incidental to kidnapping, and not movement merely for purposes of committing first-degree esc . . . .” Ante at 239. In short, if the jury was sufficiently convinced that the evidence presented at trial proved the element of asportation, this finding precluded concern that such evidence could be incidental to another coequal charge.
In the present case, an experienced trial court judge correctly recognized that because of the absence of the danger guarded against by the incidental asportation rule, the standard jury instruction was inapplicable and properly tailored the standard instruction to conform to the proofs in a form that clearly charged the elements that must be found beyond a reasonable doubt.14 Any incidental asportation instruction was superfluous, potentially confusing, and properly eliminated.
hi
Movement is a necessary element of forcible-confinement, false-imprisonment kidnapping, and *256the judge properly instructed the jury in respect to that fact. If such asportation was found on the facts presented at trial, however, there existed no reason for concern regarding the possibility of elevating a. lesser offense to a capital crime or borrowing asportation incidental to another offense to satisfy that element of the kidnapping charge. Because the jury was correctly instructed, I agree that the Court of Appeals decision should be reversed and the jury’s verdict should be reinstated.
Riley and Griffin, JJ., concurred with Boyle, J.Except in the case of murder, extortion, or taking a hostage.
We have previously held that the addition of the asportation element is only necessary to cure constitutional infirmities in the forcible-confinement, portion of our kidnapping statute, not those sections regarding secret confinement, forcible seizure, or forcible confinement with intent to secretly confine. People v Wesley, 421 Mich 375, 391; 365 NW2d 692 (1984).
People v Levy, 15 NY2d 159; 256 NYS2d 793; 204 NE2d 842 (1965); People v Lombardi, 20 NY2d 266; 282 NYS2d 519; 229 NE2d 206 (1967).
The dissent attempts to broaden this rationale for the incidental asportation rule. The concern in the cases establishing the rule was that the prosecutor might charge the more serious crime of kidnapping, instead of a lesser crime warranted by the evidence, by literal application of the kidnapping statute. See Adams, supra. There was no concern that proof of kidnapping could be used to improperly supply an essential element of another charge.
We have questioned that deviation in the past, stating that "[i]n its holding in Barker, the Court seems to have departed from the intellectual underpinning of Adams, the need to prevent prosecutorial overcharging.” Wesley, n 2 supra at 386, n 4.
We quoted with approval from the Court of Appeals in Barker:
"We are of the opinion that the thrust of Adams is not limited solely to the prevention of the distortion of lesser offenses into those more serious, but to further prevent one crime from being transformed into two (e.g., kidnapping and rape), and that those decisions holding Adams applicable to coequal offenses represent the better reasoned approach.
*250"It may be argued that a danger perceived by Adams, that of excessive prosecutorial zeal, is not as prevalent where two capital offenses are involved, inasmuch as the result would be two concurrent sentences of up to life instead of one.
"While it is certainly true that multiple sentences in Michigan run concurrently, it is also true that the conversion of a single capital offense into two capital offenses by charging incidental movement cf the victim results in not only perhaps an additional concurrent sentence up to life, but also in two chances for conviction instead of only one. It is entirely possible for the jury to acquit on the charge underlying the kidnapping but convict on the latter. For this reason, the danger of 'excessive prosecutorial zeal’ is equally present.” [Barker, supra at 299, n 4, quoting People v Barker, 90 Mich App 151, 156-157; 282 NW2d 266 (1979).]
There is no suggestion in Barker of a double jeopardy concern. Nor is there any justification for such concern in the present case. The Double Jeopardy Clause only serves as a restraint on the prosecutor and the courts, it does not limit the punishment authorized by the Legislature. People v Robideau, 419 Mich 458; 355 NW2d 592 (1984). Frustration with the inability of some to appreciate the absence of a multiple-punishment component of the Double Jeopardy Clause has recently been expressed in Dep’t of Revenue of Montana v Kurth Ranch, 511 US —; 114 S Ct 1937; 128 L Ed 2d 767, 791-792 (1994) (Scalia, J., dissenting):
Between [Ex parte Lange, 85 US (18 Wall) 163; 21 L Ed 872 (1874)], and our decision five terms ago in United States v Helper, 490 US 435 [109 S Ct 1892; 104 L Ed 2d 487] (1989), our cases often stated that the Double Jeopardy Clause protects against both successive prosecutions and successive punishments for the same criminal offense. . . . But the repetition of a dictum does not turn it into a holding, and an examination of the cases discussing the prohibition against multiple punishments demonstrates that, until Halper, the Court never invalidated a legislatively authorized successive punishment. The dispositions were entirely consistent with the proposition that the restriction derived exclusively from the due-process requirement of legislative authorization. Indeed, some cases expressed the restriction in precisely that fashion. See, e.g. [Ohio v Johnson, 467 US 493, 499, n 8; 104 S Ct 2536; 81 L Ed 2d 425 (1984)] ("protection against cumulative punishmen[t] is designed to ensure that the sentencing discretion of courts is *251confined to the limits established by the legislature”); Albernaz v United States, 450 US 333, 344 [101 S Ct 1137; 67 L Ed 2d 275] (1981) ("the question of what punishments are constitutionally permissible is not different from the question of what punishments the Legislative Branch intended to be imposed”); United States v DiFrancesco, 449 US 117, 139 [101 S Ct 426; 66 L Ed 2d 328] (1980) ("No double jeopardy problem would have been presented in Ex parte Lange if Congress had provided that the offense there was punishable by both fine and imprisonment, even though that is multiple punishment”); Whalen v United States, 445 US 684, 688 [100 S Ct 1432; 63 L Ed 2d 715] (1980) ("the question whether punishments imposed by a court after a defendant’s conviction upon criminal charges are unconstitutionally multiple cannot be resolved without determining what punishments the Legislative Branch has authorized”); id. at 697 (Blackmun, J., concurring in judgment) ("The only function the Double Jeopardy Clause serves in cases challenging multiple punishments is to prevent the prosecutor from bringing more charges, and the sentencing court from imposing greater punishments, than the Legislative Branch intended”) (emphasis in original); Brown v Ohio, 432 US 161, 165 [97 S Ct 2221; 53 L Ed 2d 187] (1977) ("The legislature remains free under the Double Jeopardy Clause to define crimes and fix punishments”). [Citations omitted; emphasis in original.]
200 Mich App 611, 617; 505 NW2d 41 (1993).
The lead opinion’s statement that "[i]t is well established that forcible-confinement kidnapping requires proof of asportation,” ante at 224, is not to the contrary. As the lead opinion notes, although the *252prosecution initially charged both forcible confinement and forcible confinement with intent to secretly confine, the jury was charged under only the former theory.
The lead opinion seems to proceed under the erroneous assumption that any kidnapping charged with a coequal offense requires proof of separate asportation as an essential element. See Wesley, supra.
The defendant chose not to testify at trial.
While the complainant’s credibility was questioned by defense counsel on cross-examination, it is apparent from the jury’s finding that asportation for the purpose of kidnapping occurred that this attempt was unsuccessful.
It defies common sense to hypothesize, as the dissent attempts to do, that in finding asportation beyond a reasonable doubt, the jury may have disbelieved all of complainant’s testimony regarding the events before the sexual assault and totally based its decision regarding this element on movement incidental to the attack. The jury was instructed regarding two separate offenses and made two separate findings. In this regard, it is revealing to note that defense counsel raised no objection to the instructions to the jury when specifically asked at trial, and even failed to raise the issue on appeal.
The defendant was originally charged with forcible or secretconñnement kidnapping. As I have noted, secret-confinement kidnapping requires no proof of an asportation element, there being no concern for overbreadth in interpretation of that portion of the statute. See n 2. The judge in the present case also originally stated the charge in the alternative in his instructions, but then chose only to describe to the jury the elements of forcible-confinement kidnapping.
As noted by the lead opinion, the Criminal Jury Instructions are not officially sanctioned or mandated by this Court, and may be modified or disregarded where appropriate. "Their use is not required, and trial judges are encouraged to examine them carefully before using them, in order to ensure their accuracy and appropriateness to the case at hand.” People v Petrella, 424 Mich 221, 277; 380 NW2d 11 (1985).