People v. Lino, Docket Nos. 92352

• Decision Date: 01 December 1993
• Docket Number: 5,Docket Nos. 92352,Nos. 4,95687,s. 4
• Citation: 447 Mich. 567,527 N.W.2d 434
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Luciano LINO, Defendant-Appellee. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Edward Matthew BRASHIER, Defendant-Appellant. Calendar,
• Court: Michigan Supreme Court

Page 434

527 N.W.2d 434

447 Mich. 567

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Luciano LINO, Defendant-Appellee.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Edward Matthew BRASHIER, Defendant-Appellant.

Docket Nos. 92352, 95687.

Calendar Nos. 4, 5, Dec. Term, 1993.

Supreme Court of Michigan.

Argued Dec. 1, 1993.

Decided Dec. 28, 1994.

Donald E. Martin, Ingham County Pros. Atty. by Susan L. Leduc, James D. Lovewell, Lansing, for defendant-appellee in Docket No. 92352.

Richard Thompson, Pros. Atty. Oakland County by Robert C. Williams, Asst. Pros. Atty. Pontiac, Theodore H. Friedman, Southfield, for Defendant-Appellant in Docket No. 95687.

Mark Brewer, Detroit for amici curiae, Criminal Defense Attys. of Michigan and ACLU Fund of Michigan; Paul Denenfeld, Legal Director, ACLU Fund of Michigan, of counsel.

Rudolph A. Serra, Ferndale, Thomas F. Coleman, Los Angeles, CA (Admitted in California), for amici curiae.

MEMORANDUM OPINION.

I

These consolidated cases require us to decide the following questions: (1) whether M.C.L. § 750.338; M.S.A. § 28.570, is unconstitutionally vague, (2) whether the common-sense-of-the-community definition of gross indecency should be overruled, (3) whether oral sexual conduct committed in a public place constitutes gross indecency, and (4) whether the specific sexual conduct alleged in People v. Brashier constitutes gross indecency because it was committed with a person under the age of consent.

A majority of the justices are of the opinion that

(1) M.C.L. § 750.338; M.S.A. § 28.570 is not unconstitutionally vague as it is applied to the conduct in Lino (Cavanagh, C.J., and Levin, Brickley, Boyle, Riley, Griffin, and Mallett, JJ.), and that the statute is not unconstitutionally vague as applied to the alleged conduct in Brashier. (Cavanagh, C.J., and Levin, Riley, Griffin, and Mallett, JJ.)

(2) To the extent the Court of Appeals in Brashier [447 Mich. 571] _ 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. (Cavanagh, C.J., and Levin, Brickley, Boyle, and Mallett, JJ.)

(3) Oral sexual conduct committed in a public place is grossly indecent under M.C.L. § 750.338; M.S.A. § 28.570. (Cavanagh, C.J., and Levin, Brickley, Boyle, Riley, Griffin, and Mallett, JJ.)

(4) Procuring or attempting to procure the specific sexual conduct alleged in Brashier with a person under the age of consent can support a conviction under M.C.L. § 750.338; M.S.A. § 28.570, regardless of whether the conduct is performed in public. (Cavanagh, C.J., and Levin, Riley, Griffin, and Mallett, JJ.)

In Lino, we reverse the decision of the Court of Appeals and we affirm the defendant's conviction. Fellatio performed in a public place clearly falls within the ambit of M.C.L. § 750.338; M.S.A. § 28.570.

In Brashier, we reverse the decision of the Court of Appeals in part and affirm in part. Defendant Brashier's case is remanded to the trial court so that he may stand trial. Procuring or attempting to procure the specific sexual conduct alleged in Brashier with a person under the age of consent can support a conviction under M.C.L. § 750.338; M.S.A. § 28.570, regardless of whether the conduct is performed in public.

II

A. People v. Lino

On August 23, 1988, several officers, including officers Smith and Ferguson, were investigating complaints of prostitution in the Michigan Avenue and Larch Street area of Lansing. Smith and Ferguson noticed defendant Lino walking on Larch, waving at passing cars. Lino was dressed as a woman; however, from past experience the officers knew that Lino was a man. The police followed a tan pickup truck that picked up Lino. The pickup eventually came to a stop in the overflow parking lot at DeMarco's restaurant.

The overflow parking lot was enclosed by a six- to eight-foot tall wooden fence on the north and east sides. The south side of the lot is open to the street. There is also an opening on the north side of the fence that allows pedestrian traffic. Although DeMarco's was open for business at the time of the incident (approximately 12:30 a.m.), there were no other vehicles in the overflow lot.

Officer Ferguson testified that, while he was behind the fence to the north, he saw the driver of the truck lean back in his seat and the defendant's head moving over the driver's lap. It was not until the officer climbed up three feet on the fence that he witnessed the defendant performing oral sex (fellatio) on the driver of the pickup truck.

Officer Smith testified that from his vantage point at the pedestrian opening on the north fence, approximately twenty feet away from the vehicle, he saw the driver sitting in the driver's seat while the defendant bent down out of sight. Officer Smith approached the vehicle and observed the defendant performing oral sex on the driver.

The driver of the truck testified that when he picked up the defendant, the defendant offered to perform oral sex for money. After arriving at the parking lot, the driver paid the defendant twenty dollars and the events, as described, occurred.

Judge Peter Houk presided at the defendant's jury trial. Following the state's proofs, the defense moved for a directed verdict, claiming that the prosecution failed to present sufficient evidence that the act was committed "openly and in a public place." Judge Houk denied the motion. The jury found the defendant guilty of gross indecency between males, M.C.L. § 750.338; M.S.A. § 28.570, under the standard announced by the plurality opinion in People v. Howell, 396 Mich. 16, 238 N.W.2d 148 (1976).

On appeal, the defendant claimed that (1) there was insufficient evidence that the act took place in a public place, (2) the gross indecency statute is unconstitutionally vague as applied, and (3) the trial court erred by not instructing the jury under the "common sense of the society standard." The Court of Appeals reversed the defendant's conviction using the Howell test and reasoning that the prosecution failed to present sufficient evidence that the act occurred in a public place. 190 Mich.App. 715, 721, 476 N.W.2d 654 (1991).

This Court initially denied the prosecutor's application for leave to appeal, but the prosecutor's motion for reconsideration was granted. 443 Mich. 882, 508 N.W.2d 491 (1993). We ordered that Lino be submitted with People v. Brashier.

B. People v. Brashier

Brashier was charged in four separate informations. In each, a fourteen- or fifteen-year-old boy was victimized by Brashier and codefendant Goike. These events occurred in November and December of 1989.

The details varied, but the basic theme was the same. Defendant Brashier would strike up a conversation with the minor victim, eventually asking whether the victim was interested in earning some money by "beatin' up a queer." Defendant Brashier would buy the minor victims lunch and then take them to a hotel room where codefendant Goike was waiting.

With Brashier directing the proceedings, the minors would physically and verbally abuse Goike, while Goike masturbated. The minors would hit Goike with a stick, urinate on him, vomit on him, pour syrup on him, and force him to consume combinations of these materials. All the while, Goike would continue to masturbate, eventually to climax.

For the most part, defendant Brashier's participation was limited to directing the activities. At times, he would actively participate in the abuse of Goike. At the end of these sessions, the minors were paid and threatened with harm if they ever revealed what happened.

There was never any direct physical sexual contact between the victims and either Brashier or Goike.

In separate informations corresponding to the four minors, these defendants were charged with one count of procuring or attempting to procure the commission of an act of gross indecency between the male minor victim and another male (the codefendant). In the circuit court, the defendant filed a motion to quash. Oakland Circuit Court Judge Fred Mester denied the motion.

The Court of Appeals reversed on interlocutory appeal, holding that the adoption of the Howell test by the Lino panel compelled the result. On the prosecutor's petition, the Court of Appeals agreed to convene a special panel to resolve the conflict between the Howell standard and the common-sense-of-the-community standard.

The special panel issued a per curiam opinion rejecting the Howell standard for gross indecency and adopting the common-sense-of-the-community standard. 197 Mich.App. 672, 679; 496 N.W.2d 385 (1992). The three concurring judges would have adopted the Howell test; however, they agreed that this defendant nevertheless could be bound over. This Court granted leave to appeal, 443 Mich. 882, 508 N.W.2d 490 (1993).

III

A

Defendants challenge M.C.L. § 750.338; M.S.A. § 28.570, ¹ as being unconstitutionally vague. ² In order to pass constitutional muster, a penal statute must define the criminal offense "with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983) (citations omitted). Vagueness challenges that do not implicate First Amendment freedoms are examined in light of the facts of each particular case. People v. Howell, 396 Mich. 16, 21, 238 N.W.2d 148 (1976). When making a vagueness determination, a court must also take into consideration any judicial constructions of the statute. Kolender 461 U.S. at 355, 103 S.Ct. at 1857.

Thus, there are at least three ways a penal statute may be found unconstitutionally vague: (1) failure to provide fair notice of what conduct is prohibited, (2) encouragement of arbitrary and discriminatory enforcement, or (3) being overbroad and impinging on First Amendment freedoms. ³ Howell ...