People v. Lynch

• Decision Date: 22 September 1989
• Docket Number: Docket No. 106903
• Citation: 179 Mich.App. 63,445 N.W.2d 803
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Mark Dean LYNCH, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 803

445 N.W.2d 803

179 Mich.App. 63

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Mark Dean LYNCH, Defendant-Appellee.

Docket No. 106903.

Court of Appeals of Michigan.

Submitted March 21, 1989.

Decided Aug. 7, 1989.

Released for Publication Sept. 22, 1989.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Donald E. Martin, Pros. Atty., Robert B. Ebersole, Chief Appellate Atty., and Susan L. LeDuc, Asst. Pros. Atty., for the People.

Paul E. Hamilton, Okemos, for defendant-appellee.

Before MacKENZIE, P.J., and HOOD and GRIBBS, JJ.

HOOD, Judge.

The prosecutor appeals as of right the trial court's dismissal of charges against defendant and its grant of defendant's motion to suppress. Defendant was charged with two counts of gross indecency between males, M.C.L. Sec. 750.338; M.S.A. Sec. 28.570, arising out of alleged sexual activities occurring at the mens' public restroom on US Highway 127 in Alaiedon Township, Ingham County, Michigan, commonly known as the Holt rest area. The two major issues on appeal are whether the gross indecency statute is unconstitutionally vague as applied and whether there was a reasonable expectation of privacy in the common area of the public restroom so that videotapes resulting from a surveillance of that area without a warrant could not be used to support a search warrant. We reverse.

The trial court found the challenged statute unconstitutionally vague because it did not provide defendant with fair notice of the conduct proscribed, either as written by the Legislature or as interpreted by the courts. We disagree.

A majority of our Supreme Court has already determined that the term "act of gross indecency" standing alone fails to give adequate notice of the conduct proscribed by the statute. People v. Howell, 396 Mich. 16, 21-22, 238 N.W.2d 148 (1976). ¹ However, when a statute vague on its face has been construed by the court so that a person is forewarned of the conduct subject to prosecution, the claim of vagueness will not require reversal. Id.; People v. Hicks, 149 Mich.App. 737, 741, 386 N.W.2d 657 (1986). It is not necessary that the case law have defined or set forth every specific variation of an act which is prohibited. The question is whether defendant was forewarned that his conduct was prohibited and that he was subject to prosecution under the gross indecency statute. Howell, supra, 396 Mich. p. 22, 238 N.W.2d 148; People v. Kalchik, 160 Mich.App. 40, 46, 407 N.W.2d 627 (1987).

Looking to our case law, we are met by a conflict as to how the term gross indecency is to be defined. Having reviewed the cases, we are convinced that the better view is that set forth by the decision in People v. Howell, supra. For the reasons set forth in People v. Emmerich, 175 Mich.App. 283, 437 N.W.2d 30 (1989), we adopt the construction of the term "act of gross indecency" as prohibiting "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, 396 Mich. p. 24, 238 N.W.2d 148. ²

Applying the relevant part of this definition, the question in this case becomes whether an act of mutual masturbation is any "ultimate sexual act committed in public." There is no indication in Howell that "any ultimate sexual act" is limited to intercourse or to an act involving penetration. The act here was mutual masturbation of exposed penises by two males. We do not believe that defendant can seriously maintain that this was not an "ultimate sex act" or that he was not on notice that performance of this act in public was prohibited and left him subject to prosecution under the statute proscribing gross indecency between male persons. ³ Compare Emmerich, supra.

Even if we were to subscribe to the alternative definition of gross indecency as set forth in People v. Dexter, 6 Mich.App. 247, 253, 148 N.W.2d 915 (1967)--"conduct that is of such character that the common sense of society regards it as indecent and improper"--our decision would be the same.

Our decision in this case was clear given the nature of the act in question and the guidance provided by the Howell standard. However, in reviewing the case law and the variety of situations which other courts have faced, we are greatly troubled by the lack of direction and guidance that the Legislature has provided in gross indecency statutes. As stated in Emmerich, the time has come to stop perpetuating nineteenth century avoidance of an indelicate subject in order to spare Victorian-era sensibilities. The time has come to lay to rest the attitude that the "gross indecency" of the subject of the crime of gross indecency forbids a more precise definition of the conduct proscribed. Emmerich, supra, 175 Mich.App. p. 288, 437 N.W.2d 30. The Legislature took the statute proscribing "carnal knowledge" and redefined the prohibited acts as criminal sexual conduct so as to deal with the reality of the actions for which our society would hold an individual criminally liable. The same should be done for the gross indecency statutes.

We are convinced that to follow the Dexter standard would leave the statute unconstitutionally vague because it leaves the trier of fact free to decide, without any legally fixed standard, both what the prohibited criminal act is and whether it has been committed. Howell, supra, 396 Mich. pp. 23-24, 238 N.W.2d 148; Emmerich, supra, p. 288, 437 N.W.2d 30. However, we recognize the problem faced by other panels when faced with a situation that instinctively would appear to be an act that would not be tolerated in public and therefore should come under the statute, but that would not come under the Howell test. See People v. Trammell, 171 Mich.App. 128, 429 N.W.2d 810 (1988). We are confident that the mutual masturbation alleged here comes under the Howell test. We believe it is accepted that fellatio is also prohibited. See Howell; People v. Myers, 161 Mich.App. 215, 220, 409 N.W.2d 788 (1987). We accept that merely touching the clothed groin area or genitals would not be. Emmerich, supra; Myers, supra. Having established these signposts, this Court will continue to determine whether individual cases come within the construction of the statute. However, it should not be the role of our citizens, the police, the prosecutors, or the trial and appellate courts to try to catalog or characterize each and every sexually related activity that men and women may engage in and then try to place them on this spectrum of prohibited acts. See, e.g., Myers, supra. It is time that the Legislature acted in this area.

We also find that the trial court erred in finding that defendant had a reasonable expectation of privacy in the common area of the restroom. At the time of the alleged activities in this case, the police had secured a warrant to install cameras in the ceiling above the stalls in the restroom. Previously, the police had maintained surveillance of the common area of the facility. Videotapes of alleged acts of gross indecency occurring in the common area were then submitted to support the warrant. It is these videotapes that defendant challenged.

The videotapes of activities that took place in the common area of the restroom did not violate the constitutional right to privacy guaranteed by the federal and state constitutions. As noted in People v. Heydenberk, 171 Mich.App. 494, 497-498, 430 N.W.2d 760 (1988), it is not sufficient in itself that defendant have an actual or subjective expectation of privacy. There must also be a determination that defendant's expectation is one society is prepared to recognize as reasonable. See People v. Smith, 420 Mich. 1, 26-28, 360 N.W.2d 841 (1984). Viewing the totality of the circumstances here, even if we assume that defendant had a subjective expectation of privacy, we cannot conclude that society would be willing to recognize this expectation as reasonable. This was a public bathroom in a public rest area off a public highway. Any member of the public could feel free to enter that restroom. While the structure itself preserves a certain amount of privacy to those using the facilities, it can be presumed that any member of the public would expect that in the common area of the facility their privacy is not absolute and that any activity in that area is open to public examination.

The court below gave great significance to the fact that anyone entering the facility had to open two separate doors before entering the common area. ⁴ The theory is that anyone seeking to...