People v. Capriccioso, Docket Nos. 147178

• Citation: 207 Mich.App. 100,523 N.W.2d 846
• Decision Date: 20 September 1994
• Docket Number: 151508,Docket Nos. 147178
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard P. CAPRICCIOSO, Defendant-Appellant. (Two Cases)
• Court: Court of Appeal of Michigan (US)

Page 846

523 N.W.2d 846

207 Mich.App. 100

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard P. CAPRICCIOSO, Defendant-Appellant. (Two Cases)

Docket Nos. 147178, 151508.

Court of Appeals of Michigan.

Submitted April 7, 1994, at Lansing.

Decided Sept. 20, 1994, at 9:40 a.m.

Released for Publication Dec. 2, 1994.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Richard Thompson, Pros. Atty., Michael J. Modelski, Chief, Appellate Div., and Anica Letica, for people.

Richard M. Lustig, Birmingham, for defendant.

Before WAHLS, P.J., and MacKENZIE and GLASER, ^* JJ.

PER CURIAM.

Defendant, an emergency room physician, was charged in separate cases with eight counts of fourth-degree criminal sexual conduct, M.C.L. § 750.520e(1)(a); M.S.A. § 28.788(5)(1)(a), arising from his alleged improper conduct during the examinations of seven female patients from September 1987 until November 1990. In Docket No. 147178, defendant was convicted by a jury of fourth-degree criminal sexual conduct. ¹ In Docket No. 151508, defendant pleaded nolo contendere to the remaining seven counts. The trial court sentenced defendant to concurrent terms of four years' probation with the first six months to be served in the county jail, followed by one year on a tether.

Defendant's sole claim on appeal is that the statutory provision under which he was charged and convicted is unconstitutionally vague. Before trial, defendant raised this issue in a motion to quash, which the trial court denied. He also tendered a conditional plea in order to preserve the issue for our review.

The "void for vagueness" doctrine is derived from the constitutional guarantee that the state may not deprive a person of life, liberty, or property without due process of law. U.S. Const. Am. XIV; Const. 1963, art. 1, § 17. A statute that forbids an act in terms so vague that a person of common intelligence necessarily must guess at its meaning and may differ concerning its application violates the first essential element of due process of law. Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888 (1939); People v. Munn, 198 Mich.App. 726, 727, 499 N.W.2d 459 (1993). A statute may be challenged for vagueness on the grounds that it (1) is overbroad and thereby impinges on First Amendment freedoms, (2) does not provide fair notice of the conduct proscribed, or (3) is so indefinite that it confers unstructured and unlimited discretion on the trier of fact to determine whether an offense has been committed. People v. Hayes, 421 Mich. 271, 283, 364 N.W.2d 635 (1984), citing Woll v. Attorney General, 409 Mich. 500, 533, 297 N.W.2d 578 (1980); People v. Kalchik, 160 Mich.App . 40, 45, 407 N.W.2d 627 (1987). Whenever possible, courts should construe statutes in such a manner as to render them constitutional. Hayes, supra, 421 Mich. at 284, 364 N.W.2d 635.

Under M.C.L. § 750.520e(1)(a); M.S.A. § 28.788(5)(1)(a), a person who engages in sexual contact that is accomplished by force or coercion is guilty of fourth-degree criminal sexual conduct. Sexual contact includes an intentional touching of the victim's intimate parts for the purpose of sexual arousal or gratification. ² M.C.L. § 750.520b(1)(f)(iv); M.S.A. § 28.788(2)(1)(f)(iv) further defines force or coercion as including:

When the actor engages in the medical treatment or examination of the victim in a manner or for purposes which are medically recognized as unethical or unacceptable.

Defendant first contends that the above definition is unconstitutionally vague because it fails to provide fair notice of the conduct proscribed. We disagree.

Because defendant does not claim that his First Amendment rights were violated, his vagueness challenge must be examined in light of the facts of the case at hand. People v. Howell, 396 Mich. 16, 21-22, 238 N.W.2d 148 (1976); Kalchik, supra; People v. Cavaiani, 172 Mich.App. 706, 714, 432 N.W.2d 409 (1988). The evidence adduced at the preliminary examinations and the trial included testimony of similar instances of improper touching during defendant's medical examination of the female patients. One patient arrived at the emergency room complaining of back pains and dizziness. During his examination, defendant grabbed her breasts, rubbed them together, rubbed the nipples, and penetrated her vagina with an ungloved hand. He then removed her underpants and squeezed her buttocks. Another patient went to the emergency room around the same time, seeking treatment for bronchitis. During the examination, defendant grabbed the patient's breasts while standing behind her, pushed and kneaded the breasts, and brushed her nipples. Defendant examined other areas of her body, but resumed touching her breasts four or five times. The patient testified that during previous treatments for bronchitis she had never been asked to remove her bra or had a breast examination performed. After the allegations against defendant received publicity, the other patients voluntarily came forward to the police. These patients had sought medical treatment for stomach problems and fatigue, asthma, sinus allergy and chest congestion, and sinus infection. With each of these women, defendant grabbed and rubbed their breasts in a manner that they described as not typical of previous breast examinations. In some cases, defendant would continue touching their breasts for several minutes. The medical expert opined that the breast examinations performed by defendant were unnecessary for the patients' ailments and the manner of defendant's performance of the examinations, as described by the patients, was medically inappropriate and unacceptable.

We agree that the language "in a manner or for purposes which are medically recognized as unethical or unacceptable," standing alone, fails to give adequate notice...