People v. Jones

• Decision Date: 04 April 1997
• Docket Number: Docket No. 194957
• Citation: 563 N.W.2d 719,222 Mich.App. 595
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. John Riley JONES and Shurie Danell Jones, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 719

563 N.W.2d 719

222 Mich.App. 595

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. John Riley JONES and Shurie Danell Jones, Defendants-Appellees.

Docket No. 194957.

Court of Appeals of Michigan.

Submitted Dec. 18, 1996, at Lansing.

Decided April 4, 1997, at 9:20 a.m.

Released for Publication June 16, 1997.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Dennis Hurst, Prosecuting Attorney, and Roberta S. Balon, Chief Appellate Attorney, for People.

Joseph S. Filip, P.C. by Joseph S. Filip, Jackson, for John R. Jones.

Defense Associates, P.C. by W.B. Raymer, Napoleon, for Shurie D. Jones.

Before McDONALD, P.J., and MURPHY and M.F. SAPALA ^*, JJ.

MURPHY, Judge.

The people appeal by leave granted from the trial court's order quashing the information charging defendants with gross indecency, M.C.L. § 750.338b; M.S.A. § 28.570(2). We reverse and remand.

I

The prosecution claims that defendants, husband and wife, engaged in sexual intercourse in a public visiting room, which was at full capacity, at the G. Robert Cotton Prison Facility in Jackson. The prosecution asserts that defendants performed this act near a vending machine and that defendants had their three minor children stand behind defendants, facing them, to shield defendants from the view of others in the visiting room. Defendants were charged with gross indecency and, following a preliminary examination, were bound over for trial on that charge. Defendants moved in the trial court to quash the information, claiming that there was insufficient evidence to support the bindover and that defendants' conduct did not, as a matter of law, violate the gross indecency statute. The trial court ruled, on the basis of People v. Lino, 447 Mich. 567, 527 N.W.2d 434 (1994), and People v. Danielac, 38 Mich.App. 230, 195 N.W.2d 922 (1972), both of which will be discussed further, that "irrespective of the offensiveness of the defendants' conduct, normal heterosexual intercourse between husband and wife is not proscribed by the gross indecency statute." The trial court entered an order quashing the information and remanding the case to the district court on the reduced charge of indecent exposure, M.C.L. § 750.335a; M.S.A. § 28.567(1). The prosecution was granted a stay of the district court proceedings and this Court granted the prosecution's application for leave to bring an interlocutory appeal.

The issue we must address is whether, under the circumstances of this case, normal heterosexual intercourse between a husband and wife is grossly indecent under M.C.L. § 750.338b; M.S.A. § 28.570(2). The trial court's order quashing the gross indecency charge on the legal ground asserted in this case is subject to review for error. See People v. Thomas, 438 Mich. 448, 452, 475 N.W.2d 288 (1991).

II

M.C.L. § 750.338b; M.S.A. § 28.570(2) states, in relevant part:

Any 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, punishable as provided in this section. Any female person who, in public or in private, commits or is a party to the commission of any act of gross indecency with a male person shall be guilty of a felony punishable as provided in this section.

In People v. Carey, 217 Mich. 601, 187 N.W. 261 (1922), our Supreme Court interpreted the gross indecency statute, 1915 CL 15511, which prohibited acts of gross indecency between males. ¹ The information in the case charged the defendant with gross indecency, but did not give the particulars of the alleged act of gross indecency. Carey, supra at 601-602, 187 N.W. 261. Our Supreme Court held that the information was sufficient because "[t]he gross indecency of the subject forbids" describing the particulars of the act charged. Id. at 603, 187 N.W. 261. In arriving at its holding, the Court quoted, with approval, People v. Hicks, 98 Mich. 86, 90, 56 N.W. 1102 (1893), a case dealing with taking indecent liberties with a child, which, in turn, quoted State v. Millard, 18 Vt. 574, 577, 46 Am Dec 170 (1846):

" '[N]o 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.' " [Carey, supra at 602-603, 187 N.W. 261.]

In People v. Dexter, 6 Mich.App. 247, 148 N.W.2d 915 (1967), this Court addressed the issue whether the statute regarding gross indecency between males, which at that time was M.C.L. § 750.85; M.S.A. § 28.280, was unconstitutionally vague because it did not define which acts are grossly indecent. This Court, relying in part on Hicks and Carey, answered in the negative, holding that the statute was intended to penalize " 'conduct that is of such character that the common sense of society regards it as indecent and improper,' " and that purpose gives sufficient guidance for a determination regarding which acts are in violation of the statute. Dexter, supra at 253, 148 N.W.2d 915, quoting People v. Szymanski, 321 Mich. 248, 252, 32 N.W.2d 451 (1948).

In People v. Howell, 396 Mich. 16, 238 N.W.2d 148 (1976), Justice Levin, authored an opinion that, in section II, rejected Dexter. Justice Levin asserted that because of the differing attitudes toward sexual conduct, there is no "common sense of society" regarding sexual behavior between consenting adults in private and that using such a test to define the offense of gross indecency "leaves the trier of fact 'free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case.' " Id. at 23-24, 238 N.W.2d 148, quoting Giaccio v. Pennsylvania, 382 U.S. 399, 402-403, 86 S.Ct. 518, 520-521, 15 L.Ed.2d 447 (1966). Instead, Justice Levin advocated a construction of the gross indecency statutes that would "prohibit 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." Howell, supra [222 Mich.App. 600] at 24, 238 N.W.2d 148. However, section II of Howell was joined by only two other justices, id. at 29, 238 N.W.2d 148, and therefore was not binding precedent. See People v. Anderson, 389 Mich. 155, 170-171, 205 N.W.2d 461 (1973).

Because the Howell definition was not binding, several panels of this Court continued to follow the Hicks-Carey-Dexter "common sense of society" standard. See, e.g., People v. Austin, 185 Mich.App. 334, 460 N.W.2d 607 (1990); People v. Gunnett, 158 Mich.App. 420, 404 N.W.2d 627 (1987). However, other panels of this Court shared Justice Levin's opinion that the "common sense of society" standard was outdated and unworkable and chose to follow the Howell definition. See, e.g., People v. Lino, 190 Mich.App. 715, 476 N.W.2d 654 (1991), rev'd 447 Mich. 567, 527 N.W.2d 434 (1994); People v. Lynch, 179 Mich.App. 63, 445 N.W.2d 803 (1989); People v. Emmerich, 175 Mich.App. 283, 437 N.W.2d 30 (1989).

This split of authority in this Court led to the convening of a special panel to resolve the conflict. People v. Brashier, 197 Mich.App. 672, 496 N.W.2d 385 (1992). The Brashier panel held that "Carey established an authoritative interpretation of the meaning of 'gross indecency' " and that other panels of this Court were not free to adopt the definition in section II of Howell, a plurality opinion. Brashier, supra at 679, 496 N.W.2d 385. Therefore, following the definitive opinion in Brashier, it was clear that what constituted an act of gross indecency was to be left to the trier of fact, who applied the "common sense of society" standard. However, the Supreme Court's recent decision in People v. Lino, 447 Mich. 567, 527 N.W.2d 434 (1994), which consolidated the appeals from the Court of Appeals' decision in Lino, supra, and Brashier, supra, has once again cast a shade of gray over the area of gross indecency.

In the Supreme Court's decision in Lino, a majority of the justices held that "[t]o the extent the Court of Appeals in Brashier interpreted People v. Carey to leave to the jury's assessment of the common sense of the community the definition of gross indecency, the Court of Appeals is reversed." Lino, 447 Mich. at 571, 527 N.W.2d 434. ² However, a majority of the justices could not agree on what standard should be used to determine if an act is grossly indecent. Justice Levin wrote separately and opined that the Court should state what is not gross indecency; adults engaging in "oral sex (fellatio, cunnilingus) or anal sex, or manual sex, including masturbation or other manual penetration or arousal, as long as the activity is consensual and in private." Id., at 582, 527 N.W.2d 434. ³ Justice Boyle, with Justice Brickley concurring, wrote that "gross indecency" is a euphemism for oral sexual conduct and the statute should punish only those acts. Id. at 606-617, 527 N.W.2d 434. Justice Riley, with Justice Griffin concurring, dissented from the majority's holding that gross indecency is not defined by the jury's assessment of the "common sense of society" and advocated the continued use of the Carey standard. Id. at 617-623, 527 N.W.2d 434. Consequently, Lino, leaves us with a definitive statement regarding how not to determine whether an act is grossly indecent, but without a definitive statement regarding which acts are grossly indecent.

However, we have been given some guidance regarding what our role should be in such cases. As stated by the Supreme Court in People v. Warren, 449 Mich. 341, 345, 535 N.W.2d 173 (1995), "[o]ne of the lessons of the Lino inquiry is that it is prudent to decide only the case before us, and not attempt to catalog what is...