People v. Emmerich

• Decision Date: 10 April 1989
• Docket Number: Docket No. 96167
• Citation: 437 N.W.2d 30,175 Mich.App. 283
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald Richard EMMERICH, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 30

437 N.W.2d 30

175 Mich.App. 283

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald Richard EMMERICH, Defendant-Appellant.

Docket No. 96167.

Court of Appeals of Michigan.

Submitted Oct. 19, 1988.

Decided Feb. 23, 1989.

Released for Publication April 10, 1989.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Nathan T. Fairchild, Pros. Atty., and Frank C. Riley, Asst. Pros. Atty., for the people.

David Pionkowsky, Ferndale, for defendant-appellant.

Before MICHAEL J. KELLY, P.J., and MacKENZIE and MILLER, ^* JJ.

MacKENZIE, Judge.

Defendant appeals by leave granted from an order denying his motion to dismiss a charge of gross indecency between males, M.C.L. Sec. 750.338; M.S.A. Sec. 28.570. We reverse and remand for dismissal of the charge.

At approximately 2:10 p.m. on May 1, 1986, undercover police officer Cletus Smith and defendant struck up a conversation at a roadside park. The conversation did not include anything of a sexual nature. When Smith told defendant he was going to leave, defendant asked Smith if he knew of a good place to go. Smith shrugged and may have moved his head. He then got into his car and drove out of the park, with defendant following in his car. Smith drove approximately four miles down a state highway, turned on a dirt road and continued for another quarter mile, pulled into a church parking lot, and drove three hundred to four hundred yards down a lane in an adjoining cemetery.

Smith and defendant got out of their respective cars and began making small talk. According to Smith, defendant bumped his belly against Smith's belly. Defendant then rubbed the back of his pocketed hand against the officer's clothing in the groin area. Later, defendant placed a leg between the officer's legs and rubbed it back and forth. Finally, defendant again placed his pocketed hand on Smith's groin area, putting pressure on Smith's genitals. Defendant and Smith conversed throughout these acts, at one point questioning each other as to "what he liked."

Defendant was initially charged with gross indecency, assault with intent to commit a felony, M.C.L. Sec. 750.87; M.S.A. Sec. 28.282, assault with intent to commit second-degree criminal sexual conduct, M.C.L. Sec. 750.520g(2); M.S.A. Sec. 28.788(7)(2), and fourth-degree criminal sexual conduct by use of force or coercion, M.C.L. Sec. 750.520e(1)(a); M.S.A. Sec. 28.788(5)(1)(a). Following a preliminary examination, the district court dismissed all charges except the gross indecency charge. The circuit court subsequently denied defendant's motion to dismiss that charge.

On appeal, defendant contends that, as a matter of law, the facts of this case do not establish a violation of the statute prohibiting gross indecency between males. The statute provides:

"Any male person who, in public or in private, commits or is a party to the commission of or procures or attempts to procure the commission by any male person of any act of gross indecency with another male person shall be guilty of a felony, punishable by imprisonment in the state prison for not more than 5 years, or by a fine of not more than $2,500.00, or if such person was at the time of the said offense a sexually delinquent person, may be punishable by imprisonment in the state prison for an indeterminate term, the minimum of which shall be 1 day and the maximum of which shall be life." [M.C.L. Sec. 750.338; M.S.A. Sec. 28.570.]

I

As recently noted by a panel of this Court in People v. Myers, 161 Mich.App. 215, 217, 409 N.W.2d 788 (1987), lv. den. 430 Mich. 859 (1988), a conflict exists as to the standard to be applied in determining whether a defendant's conduct falls within the gross indecency statute. In People v. Dexter, 6 Mich.App. 247, 253, 148 N.W.2d 915 (1967), a panel of this Court concluded that the statute penalizes "conduct that is of such character that the common sense of society regards it as indecent and improper." In People v. Howell, 396 Mich. 16, 22-24, 238 N.W.2d 148 (1976), on the other hand, three of the six participating justices rejected the Dexter formulation. Instead, they construed the term "act of gross indecency" to mean "oral and manual sexual acts committed without consent or with a person under the age of consent or any ultimate sexual act committed in public." 396 Mich. 24, 238 N.W.2d 148 (footnote omitted).

A number of panels of this Court have concluded that the Dexter "common sense of society" test remains viable after Howell, since the Howell standard was approved by only three justices. See, e.g., People v. William Clark, 68 Mich.App. 48, 52-53, 241 N.W.2d 756 (1976), People v. Masten, 96 Mich.App. 127, 132, 292 N.W.2d 171 (1980), rev'd on other grounds 414 Mich. 16, 322 N.W.2d 547 (1982), and People v. Dauer, 131 Mich.App. 839, 346 N.W.2d 599 (1984). "Viable" or not, however, Dexter is not, under principles of stare decisis, binding upon us; one panel of this Court is not bound to follow the opinion of another panel on any question of law. See People v. Waxman, 41 Mich.App. 277, 280, 199 N.W.2d 884 (1972), rev'd on other grounds 388 Mich. 774, 200 N.W.2d 322 (1972), and Moorhouse v. Ambassador Ins Co, Inc, 147 Mich.App. 412, 417, 383 N.W.2d 219 (1985). In this instance, we reject the Dexter formulation and instead adopt the Howell plurality's construction of the term "act of gross indecency."

As noted in the commentary to Criminal Jury Instruction 20:7:01, which defines gross indecency under the Howell standard, the Dexter "common sense of society" test is an anachronism. It is derived from People v. Hicks, 98 Mich. 86, 56 N.W. 1102 (1893), a turn-of-the century case involving the offense of taking indecent liberties with a child. The Hicks Court, quoting an 1846 Vermont indecent exposure case, stated:

"The offense is in taking indecent and improper liberties with the person of such child. Surely, the Legislature did not intend that the offense should not be regarded as committed unless the indecent liberties were taken with the private parts of the child. It certainly would be indecent for a man to place his hands upon certain other parts of the body of a female child, with intent to take liberties with her. 'Indecent and improper liberties with the person of such child' means such liberties as the common sense of society would regard as indecent and improper. In this case, as in State v. Millard, 18 Vt. 577 [1846], it may be said that 'no particular definition is given by the statute of what constitutes this crime. The indelicacy of the subject forbids it, and does not require of the court to state what particular conduct will constitute the offense. The common sense of the community, as well as the sense of decency, propriety, and morality which most people entertain, is sufficient to apply the statute to each particular case, and point out what particular conduct is rendered criminal by it.' " [98 Mich. 90, 56 N.W. 1102.]

In People v. Carey, 217 Mich. 601, 603, 187 N.W. 261 (1922), the Court found support for the Hicks rationale by citing to People v. Girardin, 1 Mich. 90 (1848), where it was noted that "[c]ourts will never allow its [sic] records to be polluted by bawdy and obscene matters." 1 Mich. at 91. In Carey, supra, the Court determined that an information alleging that the defendant committed "an act of gross indecency" provided a sufficiently specific description of the act charged because "[t]he gross indecency of the subject forbids" description. 217 Mich. 603, 187 N.W. 261.

Dexter perpetuates this nineteenth century avoidance of "the indelicacies of the subject," Hicks, supra, and refusal to offer a definition of gross indecency in order to spare Victorian-era sensibilities. We think the time has come to lay to rest the attitude that "the gross indecency of the subject" of the crime of gross indecency, Carey, supra, forbids a more precise definition of the conduct proscribed by the statute. The Howell plurality's standard accomplishes that purpose.

Moreover, we agree with the...