People v. Williams

• Decision Date: 21 December 1999
• Docket Number: Docket No. 215983.
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Eugene Franklin WILLIAMS, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

603 N.W.2d 300

237 Mich. App. 413

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Eugene Franklin WILLIAMS, Defendant-Appellee.

Docket No. 215983.

Court of Appeals of Michigan.

Submitted August 11, 1999, at Detroit.

Decided September 3, 1999, at 9:05 a.m.

Released for Publication December 21, 1999.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, Carl Marlinga, Prosecuting Attorney, and Steven Kaplan, Assistant Prosecuting Attorney, for the people.

Michael R. Osaer (Jerald R. Lovell, of Counsel, Mount Clemens), Sterling Heights, for the defendant. Before: HOEKSTRA, P.J., and O'CONNELL and R.J. DANHOF¹, JJ.

PER CURIAM.

The prosecution appeals by leave granted from the magistrate's dismissal of the charge of gross indecency, M.C.L. § 750.338b; MSA 28.570(2), brought against defendant. We reverse and remand.

Defendant, an attorney, visited his client, a female inmate at the Macomb County Jail. The visit occurred in an attorney interview room at the jail. The general public was not permitted access to this area of the jail, but jail personnel, attorneys, clergymen, medical personnel, and certain visitors, such as tour groups, were permitted access to the room and its immediate vicinity. The room was accessible by two doors, and the doors contained windows from which passersby could see into the attorney interview room. Once inside the room, defendant allegedly requested a favor from his client, who had paid defendant a retainer, but owed him additional attorney fees. Defendant did not state anything further, but unzipped his pants and exposed his penis. The client proceeded to perform oral sex on defendant until a jail supervisor entered the room and interrupted the act.

The magistrate refused to bind over defendant on a charge of gross indecency. The magistrate held that the preliminary examination testimony had established that sexual conduct had occurred, but that case law provided that sexual acts inside the confines of a prison facility did not constitute gross indecency. The prosecutor appealed to the circuit court, which affirmed the magistrate's decision, holding that the attorney interview room was not a public place for purposes of the gross indecency statute.

A lower court's ruling regarding whether alleged conduct falls within the scope of a criminal statute is a question of law, which appellate courts review de novo for error. People v. Thomas, 438 Mich. 448, 452, 475 N.W.2d 288 (1991); People v. Orzame, 224 Mich.App. 551, 557, 570 N.W.2d 118 (1997).

The gross indecency statute, M.C.L. § 750.338b; MSA 28.570(2), provides, in pertinent part, that "[a]ny 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." Assuming, without deciding, that an act of oral sex between consenting adults in private does not constitute gross indecency, the prosecution must establish in this case that, for purposes of the statute, defendant committed an act of gross indecency "in public." See People v. Lino, 447 Mich. 567, 571, 527 N.W.2d 434 (1994) (a majority of the justices concluded that "[o]ral sexual conduct committed in a public place is grossly indecent under M.C.L. § 750.338; MSA 28.570," but could not agree on a definition or a test to establish "a public place").

In examining the issue whether an act of gross indecency between female persons was committed in public for purposes of the statute, this Court explained in People v. Brown (After Remand), 222 Mich.App. 586, 591-593, 564 N.W.2d 919 (1997):

We consider the distinction between oral sexual conduct committed in a public place and oral sexual conduct committed in private to be of significance in applying the statute. Also, we have determined, based on the facts in Lino, that the key issue in determining whether an act of oral sexual conduct was performed in a "public place" is not so much the exact location of the act, but whether there is the possibility that the unsuspecting public could be exposed to or view the act. The logical implication from this is that, according to Lino, the gross indecency statute seeks to protect the public from the possibility of being exposed to or viewing such acts of oral sexual conduct. As a result, oral sexual conduct performed in a...