People v. Drake
| Decision Date | 18 September 2001 |
| Docket Number | Docket No. 224398. |
| Citation | 633 N.W.2d 469,246 Mich. App. 637 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Chips DRAKE, Defendant-Appellee. |
| Court | Court of Appeal of Michigan — District of US |
Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, Stuart J. Dunnings, III, Prosecuting Attorney, Guy Sweet, Chief Appellate Attorney, and Linda A. Maloney, Assistant Prosecuting Attorney, for the people.
Todd M. Robinson, Lansing, for the defendant.
Before HOLBROOK, P.J., and HOOD and GRIFFIN, JJ.
The prosecution appeals by leave granted a circuit court order affirming the district court's refusal to bind over defendant for trial on three counts of gross indecency, M.C.L. § 750.338b. We reverse and remand.
Defendant allegedly invited several minor girls to participate in a "contest" that had a promised $5,000 prize. Three of the girls testified at the preliminary hearing that defendant would award them points for various activities, including beating him, spitting on him and his food, and providing him with urine, feces, and used tampons. There was testimony that defendant would eat the urine and feces, and that three or four girls would collectively beat him. The girls stated that they were also given money, cigarettes, and alcohol for engaging in these behaviors. The girls testified that both they and defendant remained fully clothed during these activities. One girl testified that defendant told her he "got high off from [these activities], and he liked it." There was also testimony that the girls never saw defendant "sexually gratify" himself, nor did he engage in any overt sexual touching or contact with the girls.1
After reviewing People v. Lino, 447 Mich. 567, 527 N.W.2d 434 (1994),2 the circuit court determined that "a majority of the Supreme Court concludes that there must be an overt sexual act when we are talking about conduct in private between an adult defendant and minors, and the procurement of degradation for the alleged purpose of sexual gratification or arousal would not be enough...."
"A magistrate's ruling that alleged conduct falls within the scope of a criminal statute is a question of law reviewed for error, and a decision to bind over a defendant is reviewed for abuse of discretion." People v. Orzame, 224 Mich.App. 551, 557, 570 N.W.2d 118 (1997). A circuit court reviews a district court's decision whether to bind over a defendant for an abuse of discretion. Id. Id. Hence, on appeal we review for an abuse of discretion the district court's original decision on the motion to bind over defendant.
To bind over a defendant to the circuit court for trial, the magistrate must determine that sufficient evidence was adduced to establish both "that a felony has been committed and there is probable cause for charging the defendant therewith...." M.C.L. § 766.13. The prosecution need not establish guilt beyond a reasonable doubt at the preliminary examination. People v. Hill, 433 Mich. 464, 469, 446 N.W.2d 140 (1989); People v. Fiedler, 194 Mich.App. 682, 693, 487 N.W.2d 831 (1992). "A preliminary hearing is ordinarily a much less searching exploration into the merits of a case than a trial, simply because its function is the more limited one of determining whether probable cause exists to hold the accused for trial." Barber v. Page, 390 U.S. 719, 725, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968). People v. Carlin (On Remand), 239 Mich.App. 49, 64, 607 N.W.2d 733 (1999). Accord Hill, supra at 469, 446 N.W.2d 140.
MCL 750.338b provides that "[a]ny male person who, in public or in private, commits or is a party to the commission of any act of gross indecency with a female person shall be guilty of a felony...." The statute does not define the term "gross indecency." While Lino provides a "definitive statement regarding how not to determine whether an act is grossly indecent, [it does not provide] a definitive statement regarding which acts are grossly indecent." People v. Jones, 222 Mich.App. 595, 602, 563 N.W.2d 719 (1997). In the absence of a clear definition by the Legislature of the term "gross indecency," we turn to the longstanding body of Michigan case law addressing the subject. This case law establishes that the crime of gross indecency consists of behavior that involves some type of overt sexual activity. See, e.g., Lino, supra at 578, 527 N.W.2d 434; People v. Hack, 219 Mich.App. 299, 307, 556 N.W.2d 187 (1996). However, no judicial definition has been set down defining what does and what does not constitute a sexual act. The case law we have found all involve either sexual intercourse, oral sexual stimulation, masturbation, or the touching of another person's genitals or anus. Defendant argues that such an overt sexual act is thus required to sustain a charge of gross indecency. We disagree.
Attending to our Supreme Court's admonition that "[o]ne of the lessons of the Lino inquiry is that it is prudent to decide only the case before us," People v. Warren, 449 Mich. 341, 345, 535 N.W.2d 173 (1995), the Jones Court "decline[d] to craft judicially an all-encompassing definition of what is, or what is not, grossly indecent." Jones, supra at 602, 563 N.W.2d 719. We agree that in the absence of any dispositive legislative guidance, this Court should refrain from trying to craft a judicial definition, given the extreme difficulty involved in detailing all the acts that could constitute grossly indecent behavior. Therefore, "[u]ntil the Legislature gives the courts of this state a workable definition of gross indecency, malleable enough to protect, without unlawfully infringing on, the rights of the public, we must decide case by case, as the Supreme Court did in Lino, whether an act is grossly indecent." Id. at 602, 527 N.W.2d 434.
Accordingly, while mindful of past appellate cases, we do not believe that this body of law definitively establishes the boundaries of "grossly indecent" behavior. In other words, even though the cases so far have all included overt sexual touching or contact of the type identified, this does not mean that only such overt acts constitute grossly indecent behavior. Instead, the operative principle is that the activity be sexual in nature.
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...notice of the conduct proscribed," and that his convictions of gross indecency are sustainable only if this Court's decision in Drake, 246 Mich. App. 637, is found to be valid. Overton contends that Drake was either wrongly decided or, if it was not, its holding must be limited to its facts......