People v. Myers

• Decision Date: 19 August 1987
• Docket Number: Docket No. 92855
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard Herman MYERS, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 788

409 N.W.2d 788

161 Mich.App. 215

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard Herman MYERS, Defendant-Appellant.

Docket No. 92855.

Court of Appeals of Michigan.

Submitted Jan. 14, 1987.

Decided July 6, 1987.

Released for Publication Aug. 19, 1987.

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.

Timothy P. Pickard, Adrian, for Myers.

Before HOLBROOK, P.J., and WAHLS and CROCKETT , JJ.

PER CURIAM.

By way of interlocutory appeal, defendant was granted leave to appeal from an order denying his motion to dismiss the charge against him of one count of gross indecency with another male, M.C.L. Sec. 750.338; M.S.A. Sec. 28.570.

The facts giving rise to this case are essentially undisputed. On October 25, 1985, at approximately 2:45 p.m., a state police trooper, acting in an undercover capacity, was at the entryway of a toilet stall in a public restroom at a highway rest area. Defendant entered the restroom and struck up a conversation with the trooper. After they exchanged small talk, the trooper advised defendant that he had an appointment to keep and had to leave. Defendant leaned across the entryway and continued talking to the trooper. Defendant then began stroking himself in the groin area and stated that he wanted to play with the trooper. When the trooper asked what defendant meant, defendant put his arm around the trooper's shoulder and with his other hand grabbed and began to massage the trooper's groin area. According to the trooper, defendant again stated "let's play." The trooper advised defendant of his official capacity and placed defendant under arrest.

Defendant was bound over to circuit court on one count of gross indecency, one count of assault with intent to commit burglary or any other felony, M.C.L. Sec. 750.87; M.S.A. Sec. 28.282, and one count of 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).

In circuit court defendant moved to quash the information with respect to all three counts. The motion was granted except as to the gross indecency charge.

Defendant contends on appeal that the facts of this case, as adduced by the evidence presented at the preliminary examination, i.e., his touching of the trooper over his clothing in the genital area, as a matter of law do not establish a violation of the statute prohibiting gross indecency between males, M.C.L. Sec. 750.338; M.S.A. Sec. 28.570. We agree and reverse defendant's bindover.

M.C.L. Sec. 750.338; M.S.A. Sec. 28.570 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."

As can be seen, gross indecency is not defined by the terms of the statute.

A conflict exists over whether gross indecency is defined by a "common sense of society" test articulated by this Court in People v. Dexter, 6 Mich.App. 247, 253, 148 N.W.2d 915 (1967), or whether the term carries the meaning offered by Justice Levin in People v. Howell, 396 Mich. 16, 24, 238 N.W.2d 148 (1976). In Dexter the defendant was convicted, inter alia, of attempting to procure the commission of an act of gross indecency, specifically, fellatio. In rejecting a claim that the gross indecency statute was unconstitutionally vague, this Court stated:

"Statutes of the indecent liberties or gross indecency type penalize 'conduct that is of such character that the common sense of society regards it as indecent and improper'. People v. Szymanski, 321 Mich 248, 252 [32 N.W.2d 451 (1948) ]. The gross indecency statute is not vague or bereft of guidelines." Dexter, supra, 6 Mich.App. at p. 253, 148 N.W.2d 915.

In part II of Howell, supra, Justice Levin rejected the common sense of society test employed in Dexter, supra, stating at 396 Mich. 24, 238 N.W.2d 148:

"Accordingly, we reject the construction of the Court of Appeals in Dexter and construe the term 'act of gross indecency' to 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. ¹⁰"

10. "This construction makes it unnecessary either to determine whether the Legislature may constitutionally proscribe sexual conduct between consenting adults in private or to make distinctions regarding such conduct between married persons, persons living with each other, dating couples, and between persons of the same sex.

"Michiga recently enacted a criminal sexual conduct law (1974 PA 266; MCL 750.520a et seq.; MSA 28.788(1) et seq.). There is an overlap between the gross indecency statute (fn 2) [MCL 750.338; MSA 28.570] and this enactment insofar as the new statute proscribes 'sexual penetration' and 'sexual contact' where (1) the victim is under 13 years of age; (2) the victim is between 13 and 16 and resides in the same household as the actor or is related by blood or affinity to the actor or the actor used a position of authority to coerce the victim to submit; (3) the conduct occurs under circumstances involving the commission of any other felony; or (4) force or coercion is used.

"The statute at issue in Howell (assault with intent to commit certain crimes including gross indecency [fn 1] [MCL 750.85; MSA 28.280] was repealed by 1974 PA 266 effective November 1, 1974. The people allege that Howell committed the proscribed act on April 30, 1973."

Since part II of Howell was approved by only three justices, it is of no precedential value. See Negri v. Slotkin, 397 Mich. 105, 109, 244 N.W.2d 98 (1976); In re Perry, 148 Mich.App. 601, 609, 385 N.W.2d 287 (1986), lv. den. 426 Mich. 866 (1986). Under these circumstances it appears, and subsequent panels of this Court have held, that the common sense of society test remains viable after Howell, though somewhat limited. 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). ¹

Specifically, post-Dexter appellate decisions that have construed the gross indecency statute at issue have arisen from a factual background in which fellatio occurred. The statute has long been applied to cases involving forced fellatio and fellatio with a minor. Howell, supra, 396 Mich. at p. 21, 238 N.W.2d 148; Dexter, supra; Masten, supra; People v. Kalchik, 160 Mich.App. 40, 407 N.W.2d 627 (1987). Prosecutions for sodomy, however, have always been brought under a separate statute, M.C.L. Sec. 750.158; M.S.A. Sec. 28.355. See Dexter, supra; People v. Schmitt, 275 Mich. 575, 267 N.W. 741 (1936). No cases were found in which another sexual act, i.e., the massage of fully covered male genitalia, has occurred.

Similarly, prosecutions brought under other gross indecency statutes which also do not define an "act of gross indecency," namely M.C.L. Sec. 750.338a; M.S.A. Sec. 28.570(1) (gross indecency between females) and M.C.L. Sec. 750.338b; M.S.A. Sec. 28.570(2) (gross indecency between a male and a female) have involved acts of fellatio or cunnilingus. People v. Livermore, 9 Mich.App. 47, 56-59, 155 N.W.2d 711 (1967) (sexual conduct between two females); People v. McCaleb, 37 Mich.App. 502, 195 N.W.2d 17 (1972), lv. den. 389 Mich. 784 (1973) (fellatio); People v. Rea, 38 Mich.App. 141, 195 N.W.2d 809 (1972), lv. den. 388 Mich. 795 (1972) (cunnilingus); People v. Roy Edwards, 58 Mich.App. 146, 227 N.W.2d 263 (1975), reversed in light of People v. Edwards, supra, 396 Mich. 825, 238 N.W.2d 536 (1976) (fellatio); People v. Towlen, 66 Mich.App. 577, 239 N.W.2d 668 (1976), lv. den. 397 Mich. 831 (1976) (fellatio).

In each of the above cases (except Livermore, which did not involve a determination of whether the sexual act committed constituted gross indecency), the trier of fact determined that the act was grossly indecent in light of community mores. In People v. Danielac, 38 Mich.App. 230, 195 N.W.2d 922 (1972), app. dis. 389 Mich. 545, 208 N.W.2d 167 (1973), and People v. Holland, 49 Mich.App. 76, 211 N.W.2d 224 (1973), however, this Court determined, as a matter of law, that the sexual acts at issue did not constitute...