People v. Trammell
| Decision Date | 12 October 1988 |
| Docket Number | Docket No. 92492 |
| Citation | 429 N.W.2d 810,171 Mich.App. 128 |
| Parties | PEOPLE of The State of Michigan, Plaintiff-Appellee, v. Kenneth TRAMMELL, Defendant-Appellant. 171 Mich.App. 128, 429 N.W.2d 810 |
| Court | Court of Appeal of Michigan — District of US |
[171 MICHAPP 129] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Harold F. Closz, III, Pros. Atty., and Judith K. Simonson, Sr. Asst. Pros. Atty., for the People.
Vander Ploeg, Ruck, Luyendyk & Wells by Douglas M. Hughes, Muskegon, for defendant-appellant on appeal.
Before WAHLS, P.J., and MAHER and BOYLE, * JJ.
Defendant, Kenneth Trammell, was convicted by a jury of gross indecency between a male and female, 1 and subsequently pled guilty to being an habitual offender, third offense. 2 He was sentenced to a term of four to ten years imprisonment by the Muskegon Circuit Court and now appeals as of right, arguing that the trial court erred in denying his motion for a directed verdict of acquittal. We affirm.
The record reveals that on August 22, 1985, defendant, who was incarcerated in the Muskegon Correctional Facility, received a visitor named Kelle McCurdy in the facility's visiting room at about 2:10 p.m. Elmer Eckloff, an inspector at the facility, observed McCurdy take defendant's penis out of his sweat suit pants and stroke it up and down with her hands. Eckloff was about fifteen feet away from the couple at this time, behind a two-way mirror, and filmed part of the occurrence with an eight-millimeter camera. After the elapse of about one minute, Eckloff terminated the visit. He testified that the visiting room contained bathrooms, vending machines, seats, and a row of [171 MICHAPP 130] windows in a wall abutting a corridor and that, although he remembered that other people had entered the room to use the vending machines and bathrooms, he could not specifically recall whether anyone was present in the room at the time of the incident. The film footage taken by Eckloff was shown to the jury.
Defendant testified that McCurdy put her hand inside his sweat suit pants and touched his penis and that, in response, he walked away from her and told her "it wasn't the right time or the right place and to get that off of her mind." This testimony was corroborated by McCurdy, who also explained that on the date of the incident she and defendant were prohibited from going outside the visiting room due to their prior improper sexual activity at the facility.
On appeal, defendant argues that the trial court erred in failing to grant his motion at the end of proofs in the case, contending that the allegations in the felony complaint did not, as a matter of law, constitute "gross indecency" between a male and a female under the statute, M.C.L. Sec. 750.338b; M.S.A. Sec. 28.570(2). The motion was presumably one for a directed verdict. A trial judge, when ruling on a motion for a directed verdict of acquittal, must consider the evidence presented by the prosecution up to the time the motion is made, view that evidence in a light most favorable to the prosecution, and determine whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. 3
The statute concerning the crime of gross indecency[171 MICHAPP 131] between a male and a female 4 provides as follows:
M.C.L. Sec. 750.338b; M.S.A. Sec. 28.570(2).
We have upheld the validity of this statute when challenged on grounds of being unconstitutionally vague and giving no definite standard for the ascertainment of guilt. 5 Nevertheless, our statutes do not specifically define what constitutes "gross indecency," which has for many years caused some confusion in the case law. Almost a century ago, our Supreme Court, in People v. Hicks, 6 announced that the lack of a specific definition of the criteria [171 MICHAPP 132] which constitute prohibited gross indecency is wholly appropriate in view of the "indelicacy of the subject." Enunciating what has become known as the "common sense of society" test, the Hicks Court, quoting from State v. Millard, 18 Vt. 574, 577, 46 Am Dec 170 (1846), stated:
" '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. at 90, 56 N.W. 1102.
Thus, under the test set forth in Hicks, the question whether a defendant's behavior constitutes gross indecency violative of Michigan law is for the trier of fact and must be resolved by examining that behavior in light of the community's sense of morality and propriety. This test regarding the meaning of gross indecency was subsequently endorsed by the Supreme Court 7 and by the vast majority of panels of this Court. 8 Clearly, under this test, since a determination of gross indecency is left to the trier of fact, the trial judge [171 MICHAPP 133] in this case did not err in denying defendant's motion for directed verdict, thus preserving the issue for resolution by the jury.
Defendant cites two cases from this Court--in fact, the only cases cited by defendant on appeal--in support of his contention that his conduct at the correctional facility, as a matter of law, does not constitute gross indecency. Those cases are People v. Danielac 9 and People v. Holland. 10
In Danielac, defendant was convicted upon a plea of guilty of committing an act of gross indecency between a male and a female, M.C.L. Sec. 750.338b; M.S.A. Sec. 28.570(2), which consisted of engaging in sexual intercourse with a girl over sixteen years of age in the presence of others. The Danielac panel, recognizing that the behavior was "crude and offensive" and "despicable conduct on the part of the defendant," nevertheless found that it did not constitute a violation of the gross indecency statute. In rendering its opinion, the Court stated:
(Emphasis in original). 38 Mich.App. 232, 195 N.W.2d 922.
Subsequently, relying on Danielac, another panel of this Court, in People v. Holland, reversed a defendant's conviction for gross indecency between [171 MICHAPP 134] a male and a female. In Holland, the defendant's companion, "a girl of chronologically young years, but of questionable naivete," was observed by two police officers with her hand on the defendant's exposed penis while inside an automobile parked in a dark area of a private parking lot. The Holland Court, alluding to Danielac, reasoned that "[i]f an act of intercourse is not 'gross indecency' we do not see how the action with which defendant is charged could possibly constitute a violation of the statute." 49 Mich.App. 79, 211 N.W.2d 224.
We view Danielac and Holland to be aberrational and therefore, decline to follow them. What these cases embody is a judicial encroachment on the Hicks rule that the allegedly grossly indecent behavior must be assessed by the trier of fact on a case-by-case basis as tested against the touchstone of the community's sense of morality and propriety. Moreover, the Danielac proposition that the behavior must constitute grossly indecent activity per se, i.e., must constitute such activity without regard to whether it occurred in public or in private, we find inimical to the legislative intent. It seems impossible to us that the Legislature, in prohibiting "gross indecency" in public or in private, intended that the arbiter of this question examine an accused's behavior in a vacuum. Such an interpretation might virtually erase the statute from our law since, we suspect, there are very few private acts between consenting adults of the opposite sex which society today would find objectionable. Interpreting a statute, we must ascertain and give effect to the legislative intent, construing unclear or ambiguous language in light of the general purpose sought to be accomplished by the Legislature. 11 The legislative intent here surely was not to pass a law prohibiting nothing.
[171 MICHAPP 135] On this issue, we agree with the sentiments expressed in People v. Gunnett 12 that in determining whether an accused's behavior or action is grossly indecent, "the act under scrutiny cannot be separated from the circumstances in which it was performed." Cervantes recognized a practical aspect of this observation in acknowledging that "[a] private sin is not so prejudicial in this world as a public...
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