Michigan ex rel. Wayne County Prosecutor v. Bennis

• Decision Date: 30 December 1994
• Docket Number: No. 97339,No. 5,97339,5
• Parties: MICHIGAN ex rel. WAYNE COUNTY PROSECUTOR, Plaintiff-Appellant, v. John C. BENNIS and Tina B. Bennis, Defendants-Appellees. Calendar
• Court: Michigan Supreme Court

Page 483

527 N.W.2d 483

447 Mich. 719

MICHIGAN ex rel. WAYNE COUNTY PROSECUTOR, Plaintiff-Appellant, v. John C. BENNIS and Tina B. Bennis, Defendants-Appellees.

No. 97339.

Calendar No. 5.

Supreme Court of Michigan.

Argued Oct. 5, 1994.

Decided Dec. 30, 1994.

John D. O'Hair, Pros. Atty., County of Wayne, George E. Ward, Chief Asst. Pros. Atty., Andrea Solak, Chief, Sp. Operations, Larry L. Roberts, Asst. Wayne County Pros. Atty., Detroit, for plaintiff-appellant.

Paul J. Denenfeld, ACLU Fund of Michigan, Detroit, for defendants-appellees.

RILEY, Justice.

In this case, we are required to construe various aspects of the nuisance abatement statute, M.C.L. § 600.3801; M.S.A § 27A.3801. ¹ Specifically, we must decide whether an act of prostitution was consummated absent proof that money was exchanged. Next, we must determine whether the trial court erred in abating a vehicle used to commit an act of prostitution in a neighborhood with a reputation for illicit activity. Finally, we must consider whether a co-owner's interest in a vehicle may be abated where the co-owner allegedly had no knowledge that the vehicle was used in proscription of the statute.

We would hold that lewdness, incidental to an act of prostitution, is activity squarely within the purview of the nuisance abatement statute. Alternatively, we conclude that proof of an exchange of money is not necessary where, as here, it is clear from the totality of circumstances that the sexual act was in exchange for payment. Additionally, we would uphold the abatement of this vehicle because the defendant entered a neighborhood that is a known place for prostitution and used his vehicle to engage in illicit activity, thereby contributing to the existing nuisance. Finally, pursuant to the clear and unambiguous language of the statute, we would hold that knowledge or consent is not required to abate the interest of a co-owner.

I

John Bennis was arrested for gross indecency on the evening of October 3, 1988. On that evening, Detroit police officers Jacob Anthony and John Howe set up surveillance after they witnessed a woman "flagging" ² passing vehicles on the corner of Eight Mile and Sheffield. The woman was later identified as Kathy Polarchio. The officers next observed a 1977 Pontiac, driven by a man, later identified as John Bennis, turn onto Sheffield and stop near Ms. Polarchio, who approached and entered the passenger side of the Pontiac. The officers followed the Bennis vehicle, which proceeded a block, made a U-turn, and stopped. Surveillance continued until the officers noticed Ms. Polarchio's head disappear toward the driver's side of the Pontiac. The officers immediately approached the Bennis vehicle, shined a flashlight into the front seat, and witnessed Ms. Polarchio performing an act of fellatio on Mr. Bennis.

Mr. Bennis was convicted of gross indecency in violation of M.C.L. § 750.338b; M.S.A. § 28.570(2). ³ The Wayne County prosecutor then filed a complaint alleging that the Bennis vehicle was a public nuisance subject to abatement pursuant to M.C.L. § 600.3801; M.S.A. § 27A.3801. The vehicle was co-owned by Mr. Bennis' wife, Tina Bennis, who claimed that she had no knowledge that her husband ever used their vehicle in violation of the statute. The trial judge held that the vehicle was a nuisance and abated the interest of defendant and his wife.

The Court of Appeals reversed the decision of the trial court, ⁴ holding first that the prosecution had an obligation under People v. Schoonmaker, 241 Mich. 177, 216 N.W. 456 (1927), to demonstrate that Mr. Bennis' wife knew that he used the vehicle in a manner proscribed by the statute and failed to offer such proof. ⁵ The Court of Appeals next held that under State ex rel. Oakland Co. Prosecutor v. Motorama Motel Corp., 105 Mich.App. 224, 307 N.W.2d 349 (1981), proof of a single incident of lewdness, assignation, or prostitution is insufficient to establish a nuisance. Finally, the Court of Appeals held that the prosecution failed to demonstrate that an act of lewdness, assignation, or prostitution occurred.

We granted leave to appeal ⁶ and now reverse the decision of the Court of Appeals.

II

We turn first to whether the act committed in the Bennis vehicle is within the purview of the nuisance abatement statute. Consistent with the 1909 Iowa "red light abatement acts," upon which the Michigan statute is based, ⁷ the Michigan statute requires that the act be one of "lewdness, assignation or prostitution." ⁸ In State ex rel. Wayne Co. Prosecuting Attorney v. Levenburg, 406 Mich. 455, 280 N.W.2d 810 (1979), this Court used the rule of construction, noscitur a sociis, to define assignation in the statute. ⁹ The Court upheld the abatement of a bar because it was used for accosting and soliciting acts of prostitution. In other words, "the making of an appointment for the purpose of prostitution" constituted assignation under the statute. Id. at 466, 280 N.W.2d 810. Levenburg based its decision on State ex rel. Wayne Co. Prosecutor v. Diversified Theatrical Corp., 396 Mich. 244, 246-250, 240 N.W.2d 460 (1976). Diversified essentially held that while lewdness, assignation, and prostitution are set forth in the alternative, the conduct constituting lewdness or assignation must be incidental to or in furtherance of an act of prostitution. ¹⁰

In the instant case, the prosecution maintains that an act of lewdness, within the context of the nuisance abatement statute, occurred. Although this aspect of the statute has yet to be defined, ¹¹ we agree with the contention put forth by the prosecution.

We analogize the definition of "assignation" in Levenburg with the definition we now give to "lewdness." Levenburg looked to the common meaning of "assignation" and concluded that the common definition of the term is limited to those instances in which the act of assignation is "for the purpose of prostitution." Id., 406 Mich. at 466, 280 N.W.2d 810. In this manner, the common definition of "lewdness" includes a lustful and obscene display of illicit sexual activity. ¹² Utilizing the common meaning of "lewdness," ¹³ we also conclude that it is limited to those instances in which an act of lewdness occurs in furtherance of or for the purpose of prostitution.

This result is consistent with Michigan decisions in Diversified and Levenburg, supra, as well as other jurisdictions interpreting similar language. ¹⁴ For example, in Pennsylvania v. MacDonald, 464 Pa. 435, 460-461, 347 A.2d 290 (1975), the court addressed the issue of lewdness and concluded:

Far more important than mere dictionary definitions is the statutory context in which the word "lewdness" appears.... That context proscribes use of any building "for the purpose of fornication, ... assignation, and/or prostitution." All of these forbidden purposes involve illicit sexual conduct, thus strongly indicating a legislative intention to proscribe only purposes of this type when it used the word "lewdness." Such a construction has the further advantage of obviating any problems of vagueness which might be entailed by construing the term "lewdness" in a broader fashion. [Emphasis supplied.]

In the case at bar, Mr. Bennis' conduct constitutes lewdness because it occurred in a residential neighborhood and was in furtherance of an act that traditionally forms the basis of a prostitution charge, i.e., fellatio. ¹⁵ This result is consistent with the definition of assignation in Levenburg, supra, 406 Mich. at 466, 280 N.W.2d 810. Indeed, we find particularly persuasive the fact that Mr. Bennis engaged in this act with a known prostitute in an area reputed for illicit activity. ¹⁶ Therefore, while no money was exchanged, the conduct clearly satisfies statutory requirements and is subject to abatement.

Moreover, even if we did not find the conduct lewd within the meaning of the nuisance abatement statute, we are persuaded that from the totality of the circumstances, an act of prostitution occurred. We primarily rely on the uncontroverted testimony of Detroit police officer Jacob Anthony who, along with his partner, witnessed Ms. Polarchio "flagging" ¹⁷ passing vehicles on Eight Mile and Sheffield. His testimony is a compelling indication that an act of prostitution occurred. As previously stated, the officers witnessed the Bennis vehicle stop in response to Ms. Polarchio's "flagging" and saw her enter the vehicle posthaste. The vehicle proceeded and within minutes again came to a stop. Ms. Polarchio's head immediately disappeared, and the officers then observed the two engaged in fellatio. The dissent fails to address this most persuasive testimony.

We are additionally persuaded by the following facts which support our conclusion. One witness, Sammie Parham, a security guard at a business located at Six Mile and Woodward, testified that he had seen Mr. Bennis in the area during the summer before Bennis' October 3, 1988, arrest. Mr. Parham saw Mr. Bennis talking to a prostitute on two separate occasions and ushered the prostitutes away in both instances just as they were about to enter the Bennis vehicle.

Furthermore, it is uncontested that Ms. Polarchio had been arrested several times for solicitation and disorderly conduct. The arresting officer testified that Mr. Bennis stopped at the waving, or what he perceived to be the "flagging," by Ms. Polarchio. Additionally we are persuaded by Mr. Bennis' admission at trial that he normally proceeds home across Eight Mile and turns north onto Woodward. It is uncontested that on the evening in question, Mr. Bennis drove down Eight Mile and proceeded south on Sheffield, the opposite direction of his home. It is also undisputed that minutes after he turned onto Sheffield and picked up Ms. Polarchio, two officers found them engaged in fellatio.

While the officers did not actually witness an exchange of money, from the testimony elicited at trial, a clear inference may be drawn that the sexual act was in...