People v. Lino

527 N.W.2d 434, 447 Mich. 567

• Court: Michigan Supreme Court
• Decided: December 28, 1994
• Docket: Docket Nos. 92352, 95687, (Calendar Nos. 4-5)
• Status: Published

Opinions

Memorandum Opinion.

i

These consolidated cases require us to decide the following questions: (1) whether MCL 750.338; MSA 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) MCL 750.338; MSA 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 Bra-shier 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 MCL 750.338; MSA 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 MCL 750.338; MSA 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 MCL 750.338; MSA 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 MCL 750.338; MSA

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, MCL 750.338; MSA 28.570, under the standard announced by the plurality opinion in People v Howell, 396 Mich 16; 238 NW2d 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 NW2d 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 (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 Bra-shier 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 commonsense-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 NW2d 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 (1993) .

in

A

Defendants challenge MCL 750.338; MSA 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 US 352, 357; 103 S Ct 1855; 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. Howell at 21. When making a vagueness determination, a court must also take into consideration any judicial constructions of the statute. Kolender at 355.

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 at 20-21, n 4.

Defendant Lino’s vagueness challenge fails because it is clear that a number of cases hold that the public act of fellatio between males is encompassed within the scope of the gross indecency statute; See Howell at 22, and People v Kalchik, 160 Mich App 40, 45-46; 407 NW2d 627 (1987). Lino had fair notice that public fellatio between males is prohibited by the statute, and, correspondingly, the statute does not create a risk of arbitrary and discriminatory enforcement.

Nor is the statute vague as it applies to Mr. Brashier. He cannot plausibly claim that he could not have known his conduct was prohibited. In McSherry v Block, 880 F2d 1049 (CA 9, 1989), cert den 499 US 943 (1991),⁴ the United States Court of Appeals for the Ninth Circuit, rejected a vagueness challenge brought by a defendant convicted of "loiter[ing]” under a California statute that provides in pertinent part:

Every person who loiters about any school or public place at or near which children attend or normally congregate and who remains at any school or public place at or near which children attend or normally congregate, or who reenters or comes upon such school or place within 72 hours, after being asked to leave ... is a vagrant .... [Cal Penal Code, § 653g.]

Although it was undisputed that the petitioner had not been asked to leave, "[t]he evidence at trial consisted of highly incriminatory observations of the appellant at five different schools, other relevant observations of his behavior, and his prior convictions for kidnapping a minor and lewd conduct with a girl under the age of eighteen.” 880 F2d 1051. The court rioted that "[i]n applying the rule against vagueness or overbroadness something . . . should depend on the moral quality of the conduct.” Freund, The supreme court and civil liberties, 4 Vand LR 533, 540 (1951), quoted with approval in Bouie v City of Columbia, 378 US 347, 362, n 9; 84 S Ct 1697; 12 L Ed 2d 894 (1964).⁵ The court stated that it was placing "considerable emphasis on this factor,” in rejecting the petitioner’s vagueness challenge. 880 F2d 1055.

In Rose v Locke, 423 US 48, 51; 96 S Ct 243; 46 L Ed 2d 185 (1975), the United States Supreme Court said: "[Although [Wainwright v Stone, 414 US 21; 94 S Ct 190; 38 L Ed 2d 179 (1973)] demonstrated that the existence of previous applications of a particular statute to one set of facts forecloses lack-of-fair-warning challenges to subsequent prosecutions of factually identical conduct, it did not hold that such applications were a prerequisite to a statute’s withstanding constitutional attack.” In that case, the United States Supreme Court upheld a conviction for forced cunnilingús under a Missouri statute proscribing "crime[s] against nature,” despite the fact that Missouri courts had never applied the statute to the precise facts of the defendant’s case. Brashier was therefore on notice that sexual activity involving persons under the age of consent could constitute the statutory crime of gross indecency.

B

With respect to defendant Lino, fellatio performed in a public place clearly falls within the ambit of the gross indecency statute.

With respect to defendant Brashier, we remand his case to the trial court so that he may stand trial. If proven true, Brashier’s alleged conduct in orchestrating the conduct of the minors, to facilitate Goike’s sexual arousal and masturbation in the presence of the minors would constitute the offense of procuring, or attempting to procure, an act of gross indecency even though it was not committed in a public place. Procuring or attempting to procure an act of gross indecency with a person under the age of consent can support a conviction under MCL 750.338; MSA 28.570, regardless of whether the conduct is performed in public.

c

This memorandum opinion is signed by the seven participating justices. There are separate concurring and dissenting opinions. However, at least four justices concur in every holding, statement, and disposition of this memorandum opinion.

Levin, J.

(separate opinion). We all agree that Luciano Lino was subject to prosecution for the offense of gross indecency between male persons¹ on presentation of sufficient evidence that he performed oral sex (fellatio) with another man in public.²

I agree with the majority³ that Edward Brashier is subject to prosecution for gross indecency between male persons on presentation of sufficient evidence that he procured minors to perform fetishes to arouse Paul Goike sexually while Goike was masturbating to climax, even though the conduct was not in public and the minors and Goike did not touch each other.⁴_

I

The question shrouded under the sheets, and veiled behind the pages, of the several opinions, is whether it constitutes the felony of gross indecency for consenting adults to engage in oral, anal, or manual sex in private.

Lino is subject to prosecution, if at all, on presentation of sufficient evidence that a sexual act was committed in public, not because oral sex between consenting adults itself is grossly indecent. A married man and woman would be subject to prosecution for gross, indecency between a male and a female person⁵ if they were to engage in “normal” heterosexual intercourse in public._

I would hold, following the lead of the Court of Appeals of Maryland in Schochet v Maryland, 320 Md 714; 580 A2d 176 (1990), that it does not constitute the felony of gross indecency for adults to engage in oral sex (fellatio, cunnilingus) or anal sex, or manual sex, including masturbation or other manual penetration or arousal, as long as the activity is consensual and in private.⁶_

Schochet had been acquitted by the jury of rape, anal intercourse, sodomy, and fellatio of the complaining witness by force or threat of force against her will and without her consent, but convicted of committing "a certain unnatural and perverted sexual practice,” namely fellatio, with the complaining witness. Id., p 718.

Schochet alleged that the statute criminalizing "unnatural and perverted sexual practice” on evidence of fellatio was unconstitutional as applied to private and noncommercial sexual acts between consenting heterosexual adults._

Maryland’s highest court said that the principle that a statute should be construed to avoid constitutional questions⁷ was applicable, and that, to avoid deciding whether criminalizing fellatio was unconstitutional, it would hold that the statute did not encompass consensual, noncommercial heterosexual activity between adults in the privacy of a home. Schochet’s conviction was reversed, with the direction that a judgment of acquittal be entered.

Instructions to a jury should be clear that the accused cannot be convicted of the offense of gross indecency because it might be thought by some or many members of the community that oral, anal, or manual sex is grossly indecent, or that sex between a transvestite⁸ and another man, or between persons who are not married to each other, or in exchange for the payment of money or other consideration,⁹ is grossly indecent.

After the superpanel decision of the Court of Appeals in People v Brashier, 197 Mich App 672; 496 NW2d 385 (1992), a new standard criminal jury instruction, replacing an instruction based on the definition of gross indecency set forth in the plurality opinion in People v Howell, 396 Mich 16; 238 NW2d 148 (1976),¹⁰ was promulgated by the Michigan State Bar Standing Committee on Standard Criminal Jury Instructions, which was established under the authority of this Court.

The new standard instruction allows a jury to decide whether the sexual act charged in the information constitutes an act of gross indecency. The new standard instruction reads:

(1) The defendant is charged with the crime of committing an act of gross indecency with another person. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

(2) First, that the defendant voluntarily committed a sexual act with another person.

(3) Second, that this sexual act was an act of gross indecency. An act is grossly indecent if it is of such a character that the common Sense of society regards it as indecent and improper. [CJI2d 20.31. Emphasis added.]

This new standard instruction shows the deficiency of the common-sense-of-the-community¹¹ definition, absent further direction from this Court. This new standard instruction does not, in contrast with the former instruction, state that where consenting adults are the only persons involved, the accused may be convicted of gross indecency only if the jury finds that the sexual act was committed in public.

Nor does the new standard instruction state—as the old instruction in effect provided—that an oral, anal, or manual sexual act between consenting adults in private is not an act of gross indecency. Nor does the new standard instruction state—as the old instruction in effect provided—that whether a sexual act is grossly indecent does not depend on whether the act is heterosexual or between gays or lesbians.

Unless a majority of this Court is prepared to affirm a jury verdict finding that oral, anal, or manual sex in private between consenting adult heterosexuals, or gays or lesbians, is grossly indecent, a majority of this Court should preclude such a prosecution or conviction by providing an alternative standard instruction that does not permit the prosecution or conviction of consenting adults under any such circumstances for the commission of such acts in private.

Even if a prosecutor knows that he might not be able to obtain a conviction, he may ruin a person, such as an elected official, by bringing the prosecution. Permitting a prosecutor to commence a prosecution and cause arrests for, and conduct a preliminary examination concerning, and the trier of fact, generally a jury, to decide whether sexual acts committed by consenting adults in private constitute acts of gross indecency, poses a substantial risk of abuse.¹²

This Court should not wait until long after a prosecutor in one of the eighty-three counties files an information against gays or lesbians or heterosexuals for consensual sexual acts committed in private to rein in unstructured prosecutorial/jury discretion.

D

Penalties are provided by the criminal sexual conduct act to cover nonconsensual sexual behavior, or sexual behavior with a person under the age of consent.¹³ In addition to the gross indecency charge, Brashier was charged with contributing to the delinquency of a child under the age of seventeen,¹⁴ with accosting, enticing, or soliciting a child under the age of sixteen years to commit an immoral act,¹⁵ and with conspiracy to commit an offense prohibited by law.¹⁶

It, therefore, appears that there is little, or at least less, need to continue to include within the definition of gross indecency sexual acts committed without consent, or with a person under the age of consent,¹⁷ or, indeed, for a definition of gross indecency stating what constitutes gross indecency.

There is, however, clearly a need—to avoid conferring unstructured discretion on the prosecutor/ trier of fact to determine whether an offense has been committed—for this Court to state what does not constitute gross indecency, and specifically for this Court to state that oral, anal, or manual sexual acts committed in private by consenting adults are not grossly indecent. As in People v Myers, 161 Mich App 215; 409 NW2d 788 (1987), and People v Emmerich, 175 Mich App 283; 437 NW2d 30 (1989), this Court should state what does not constitute gross indecency.¹⁸

II

I agree with the majority that the gross indecency statutes are not void for vagueness as applied to Lino and Brashier. Because of the manner in which the gross indecency statutes have been construed,¹⁹ Lino and Brashier cannot claim that the statutes failed to "define the criminal offense [of gross indecency] with sufficient definiteness that ordinary people can understand what conduct is prohibited . . . .”²⁰

Although the gross indecency statutes are not void for vagueness as applied to Lino and Brashier, this Court has an obligation to construe them to remedy the vagueness of "gross indecency.”

In Hamling v United States, 418 US 87, 110-116; 94 S Ct 2887; 41 L Ed 2d 590 (1974), the United States Supreme Court held that the defendant had notice, through earlier decisions, that a federal obscenity statute applied to the materials he circulated, and thus the statute was not void for vagueness as applied to him. The Court nevertheless .then construed the statute so that it would be consistent with the obscenity definition set forth in Miller v California, 413 US 15; 93 S Ct 2607; 37 L Ed 2d 419 (1973).

In Commonwealth v Balthazar, 366 Mass 298; 318 NE2d 478 (1974), the Supreme Judicial Court of Massachusetts held that a statute barring unnatural and lascivious acts was not vague as applied to the defendant, but nevertheless narrowed an earlier construction of the statute to remedy vagueness.

In Pryor v Municipal Court of Los Angeles, 25 Cal 3d 238, 253; 158 Cal Rptr 330; 599 P2d 636 (1979), a statute prohibiting solicitation oí "lewd” and "dissolute” conduct, was held not to be vague as applied to the defendant. The California Supreme Court nevertheless adopted a narrowing construction to remedy vagueness, and said: "The judiciary bears an obligation to 'construe enactments to give specific content to terms that might otherwise be unconstitutionally vague.’ ”²¹_

Ill

A criminal statute must provide fair warning of the conduct it prohibits, and may not vest law enforcement officials and juries with unbridled discretion to determine the conduct that is prohibited. Kolender v Lawson, 461 US 352, 357; 103 S Ct 1855; 75 L Ed 2d 903 (1983). The "common sense of the community” definition fails both prongs of this proscription.

An average citizen would not be able to determine the conduct that offends the "common sense of the community.” "In the final analysis, each individual has his own moral codes, private and public, and what acts [sexual acts in this case] might be considered as injurious to public morals are as numerous as the opinions of man.”²² The common-sense-of-the-community definition specifies "no standard of conduct ... at all.” Coates v Cincinnati, 402 US 611, 614; 91 S Ct 1686; 29 L Ed 2d 214 (1971).

The common-sense-of-the-community definition is vague in much the same way as the ordinance in Coates that prohibited "three or more persons to assemble ... on any of the sidewalks . . . and there conduct themselves in a manner annoying to persons passing by . . . .” In striking down the ordinance, the United States Supreme Court said:

Conduct that annoys some people does not annoy others. Thus, the ordinance is vague, not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all. [Coates, supra, p 614.]

A legislature, thus, may not enact a standard for criminal liability that depends on the varied and constantly changing sensibilities of the public.²³

In Commonwealth v Balthazar, supra, the court reconsidered its earlier decision in Jaquith v Commonwealth, 331 Mass 439, 442; 120 NE2d 189 (1954), in which it had defined the term "unnatural and lascivious acts” as signifying "irregular indulgence in sexual behavior, illicit sexual relations, and infamous conduct which is lustful, obscene, and in deviation of accepted customs and manners.” (Emphasis added.) The court, to remedy vagueness, held that the "unnatural and lascivious acts” statute would no longer apply to private consensual sexual relations between adults. The court said:

In light of these changes [developments in the right to privacy] and in light of our own awareness that community values on the subject of permissible sexual conduct no longer are as monolithic as the Jaquith case suggested they were in 1954, we conclude that [Mass Ann Laws, ch 272, § 35] must be construed to be inapplicable to private, consensual conduct of adults. We do so on the ground that the concept of general community disapproval of specific sexual conduct, which is inherent in § 35, requires such an interpretation. [Balthazar, supra, p 302. Emphasis added.]

The court held, however, that because Balthazar had been convicted of forcing a woman to engage in sexual relations, the statute could be applied to him.

When Balthazar sought a writ of habeas corpus, the federal courts joined Massachusetts’ highest court in recognizing the impermissible vagueness of a criminal statute that bases liability on community standards. The United States District Court for the District of Massachusetts said:

While a state may have a legitimate interest in protecting community sensibilities, criminal liability should only attach to clearly delineated transgression. Currents of community standards are constantly shifting. These changes are sometime subtle. Standards are apt to vary from generation to generation without the specific awareness of either generation. This is true in the area of private sexual conduct, among others. [Balthazar v Superior Court of Massachusetts, 428 F Supp 425, 433 (D Mass, 1977).]

On appeal to the United States Court of Appeals for the First Circuit, the court said that the "District Court was rightly concerned that the use of constantly shifting community standards, as the test of what conduct falls within the terms of a criminal statute, places the public 'at its peril to anticipate a judicial pronouncement that public standards of morality have changed.’5,²⁴ Balthazar v Superior Court of Massachusetts, 573 F2d 698, 701 (CA 1, 1978).²⁵

B

The "common sense of the community” definition vests the community—law enforcement officials and juries—with discretion to criminalize sexual behavior it finds offensive. This discretion conflicts with the United States Supreme Court’s recent statement "that the more important aspect of the vagueness doctrine ’is not actual notice, but the other principal element of the doctrine—the requirement that a legislature establish minimal guidelines to govern law enforcement.’ ” Kolender, supra, p 358. Where the legislature fails to enact such guidelines, the Court explained, "a criminal statute may permit 'a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.’ ”

Under the "common sense of the community” definition, police, prosecutors, and especially juries make the sort of standardless sweep of sexual behavior prohibited in Kolender. As stated by the Supreme Court of Alaska, in holding that a statute proscribing the "crime against nature” was void for vagueness: "[w]e cannot allow criminality to depend only upon the moral sentiment or idiosyncracies of the tribunal before which a defendant is tried.” Harris v State, 457 P2d 638, 641 (Alas, 1969).

In a gross indecency prosecution under the common sense of the community definition, the prosecutor is not required to call "expert” witnesses to provide evidence concerning the common sense of the community. The prosecutor simply presents proof of the allegedly indecent act. The judge then instructs the jury that if it finds that the defendant committed the act and that the act offends the common sense of the community, it should convict. The jury thus becomes the arbiter of what constitutes the common sense of the community.²⁶

There is no fixed yardstick against which to measure the jury’s conclusion that the act in question violates the "common sense of the community.” Because the jury is "the community,” its determination that an act offends the common sense of the community would ordinarily decide the matter. Under the "common sense of the community” definition, a reviewing court would find it difficult to decide that the "community” misapplied its own "common sense.”

The United States Supreme Court’s obscenity jurisprudence²⁷ shows the importance of substantive limitations ("fixed yardsticks”) in criminal statutes. In Jenkins v Georgia, 418 US 153, 159; 94 S Ct 2750; 41 L Ed 2d 642 (1974), the Court reversed a decision of the Georgia Supreme Court that affirmed the defendant’s obscenity conviction for showing the movie "Carnal Knowledge.” In the United States Supreme Court, the State of Georgia argued that the question whether the film was obscene was "a question of fact for the jury, and that the jury having resolved this question against appellant, and there being some evidence to support its findings, the judgment of conviction should be affirmed.” The Court unanimously rejected Georgia’s argument that the jury’s verdict must be affirmed simply because there was some evidence to support it, and the implication that an obscenity conviction must be affirmed whenever a jury determines that the material violated "community standards.”²⁸_

The Jenkins decision²⁹ shows that an obscenity conviction cannot rest on a jury’s ad hoc, ad hominem application of community standards.³⁰ An obscenity conviction must be consistent with "substantive constitutional limitations.” Id., p 160.

The common sense of the community definition is devoid of substantive limitations. The common sense of the community definition is the Miller definition for obscenity minus any substantive limitations like those found in Miller. It is, in short, the test for obscenity squarely rejected in Jenkins.

The Supreme Court of California recently observed:

The obscenity test as developed in Supreme Court decisions was not framed to measure non-communicative conduct; with no audience to be aroused pruriently or redeemed socially, all that is left of the test is the appeal to contemporary community standards. That appeal is the vaguest part of the test and, standing alone, does not provide a sufficient standard to judge the criminality of conduct. [Pryor, supra, p 250.]

IV

In Lino, the jury was instructed that the prosecutor must prove beyond a reasonable doubt that the act was "committed .openly and in a public place,” and, apparently, so found.³¹_

We all agree, that a person, man or woman, who commits fellatio, in public has committed an "act of gross indecency.”

The meaning of "public” is not, however, self-evident. The New York Court of Appeals explained that, "[b]ecause the term 'public place’ has no cut- and-dried meaning, it is necessary to interpret and apply the statute [banning lewd public conduct] in a manner that comports with its purpose.” People v McNamara, 78 NY2d 626, 633; 585 NE2d 788 (1991).

The New York Court of Appeals held that New York’s public lewdness statute applies only where the "objective circumstances” establish that lewd acts "can, and likely would, be seen by the casual passerby, whose sensibilities the statute seeks to protect.” McNamara, supra, pp 634-635. In the words of New York’s highest court:

That a member of the public may pass by is certainly part of the essence of a public place, and the harm to such a person’s sensibilities is precisely that aimed at by the statute. Conversely, where no such harm is likely, the statute is not violated. [Id., p 633.]

The Supreme Judicial Court of Massachusetts and the California Supreme Court have similarly defined the term "public place” as set forth in public lewdness statutes. The Supreme Judicial Court of Massachusetts held that to establish the "public place” element of public lewdness, "[t]he Commonwealth must prove that the likelihood of being observed by a casual passerby must have been reasonably foreseeable to the defendant or, stated otherwise, that the defendant acted upon an unreasonable expectation that his conduct would remain secret.” Commonwealth v Ferguson, 384 Mass 13, 16; 422 NE2d 1365 (1981). In Pryor, supra, p 256, the California Supreme Court held that its public lewdness statute prohibited only a limited range of conduct, and only when "the actor knows or should know of the presence of persons who may be offended by his conduct.”

This Court should follow the lead of the highest courts of New York, Massachusetts, and California, and hold that, to establish the "public place” element of gross indecency, the prosecutor must prove that when the sexual act was committed, the objective circumstances indicated that the conduct could have been seen, and was likely to have been seen, by members of the public.³²

The jury in Lino’s trial was not properly instructed concerning the "public place” element of gross indecency.³³ After deliberating for approximately one-half hour, the jury asked the judge, "[w]hat constitutes a public place and is being in a personal vehicle the same as being in a public place?” The judge responded that, "[t]here is no exact answer to the questions that you have asked. Those judgments are entrusted to you for your sound judgment. I will tell you generally that a public place is one to which the public has an open view or access.” (Emphasis added.)

The judge’s response did not inform the jury that a public place, in addition to being open to the public’s view, is a place in which one would reasonably expect to find members of the public or casual passersby.³⁴

v

One of my colleagues’ opinions suggests that Brashier’s conduct might be chargeable as a felony punishable by imprisonment for up to twenty years.³⁵ The penal statute adverted to³⁶ provides such a penalty on conviction of causing a person who is less than eighteen years of age to engage in "child sexually abusive activity for the purpose of producing any child sexually abusive material . . . .” The term "child sexually abusive material” is defined as meaning a photograph, film, slide, electronic visual image, or sound recording of a child engaging in sexual intercourse, erotic fondling, sadomasochistic abuse, masturbation, passive sexual involvement, sexual excitement, or erotic nudity, as each of those terms is specifically defined in the statute. The record does not, however, indicate that the sexual activity charged in Brashier was photographed or otherwise recorded so that it could be viewed on a subsequent occasion.

The statute also subjects to prosecution with a like penalty "a person who attempts or prepares or conspires to arrange for, produce, make, or finance any child sexually abusive activity or child sexually abusive material . . . .” There was no "audience” other than Brashier, and it does not appear that the conduct of the minors was for the purpose of Brashier’s sexual gratification or stimulation.³⁷

That colleague also states that the majority of this Court today defines gross indecency as including "any and all conduct that a jury thinks is indecent,”³⁸ and "[d]espite contrary protestations, [has] adopt[ed] a broad view of the statute,”³⁹ and "[f]aced with the unattractive prospect of finding Brashier’s conduct outside the reach of the gross indecency statute,”⁴⁰ the majority has solved the problem by saying in effect, that gross indecency is what four members of this Court say it is.

In Howell, supra, a plurality of this Court defined gross indecency as including oral and manual sexual acts committed "with” a person under the age of consent. The three concurring judges in the superpanel decision in Brashier read the Howell definition as permitting prosecution of Brashier on the basis that his conduct involved a manual sexual act committed by Goike "with” a person under the age of consent even though the person under the age of consent did not touch Goike.⁴¹

I would reverse and remand for a new trial in Lino, and join in remanding for trial in Brashier.

1 The statute in question 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 $2500.00 .... [MCL 750.338; MSA 28.570.]

2 This constitutional challenge is brought under the Due Process Clause of the Fourteenth Amendment of the United States Constitution.

3 Neither defendant claims that MCL 750.338; MSA 28.570 impinges on any of their First Amendment freedoms; thus, we do not consider the matter further.

4 See also United States v White, 882 F2d 250, 252 (CA 7, 1989). "Provided that conduct is of a sort widely known among the lay public to be criminal ... a person is not entitled to clear notice that the conduct violates a particular criminal statute. It is enough that he knows that what he is about to do is probably or certainly criminal.” (Emphasis in original.)

5 In Bouie at 362, the Court held that due process notice requirements prevented a previously unannounced interpretation of a trespassing statute from being applied retroactively to civil rights protesters. The Court noted that "[a]pplication of this rule is particularly compelling where, as here, the petitioners’ conduct cannot be deemed improper or immoral.”

1 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 .... [MCL 750.338; MSA 28.570.]

2 Lino is a male prostitute, who, at the time, was dressed as a woman. He was charged with gross indecency on evidence that he was waiving at automobiles, entered a pick-up truck, which drove to an empty, well-lit, overflow parking lot, and was observed by a police officer, standing in an opening in a fence surrounding the lot, performing fellatio on an occupant. ■

Lino contended that the sexual act was done in private and therefore did not constitute gross indecency under the circumstances that the act took place in an empty parking lot, in a private vehicle where there was a reasonable expectation of privacy, and the arresting offlcers were able to observe the act only by making a deliberate effort to look into the vehicle.

The Court of Appeals reversed Lino’s conviction because there was "insufficient evidence that the act defendant was convicted of occurred in a public place.” People v Lino, 190 Mich App 715, 721; 476 NW2d 654 (1991). The Court stated "that the better definition of gross indecency is that expressed in the Howell opinion,” id, p 720, referring to the plurality opinion in People v Howell, 396 Mich 16, 24; 238 NW2d 148 (1976), where the plurality said:

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. [Emphasis added.]

People v Dexter, 6 Mich App 247, 253; 148 NW2d 915 (1967), referred to in the plurality opinion in Howell, restated the definition of gross indecency set forth in People v Carey, 217 Mich 601; 187 NW2d 261 (1922), which was based on People v Hicks, 98 Mich 86, 90; 56 NW 1102 (1893), which so defined the offense of taking "indecent and improper liberties with the person of a [female child under the age of 14].”

The Court of Appeals said that there was no light on inside the pick-up truck, and described the other evidence as follows:

The parking lot was enclosed by a six- to eight-foot-tall wooden fence on the north and east sides. Officer Ferguson parked his vehicle and approached the lot where the pickup’ was parked. The truck was parked in the northeast corner of the lot with its lights off. From behind the fence, Officer Ferguson observed defendant’s head moving "in an up-and-down motion on the lap of the driver.” Officer Ferguson then stood on a supporting crosspiece of the fence that was about three feet off the ground. From that vantage point, Officer Ferguson also observed the driver’s exposed penis. Officer Ferguson and two other officers then approached the vehicle. When one officer identified himself, the driver started his vehicle and drove away at a high rate of speed. The driver was later apprehended.

Lansing Police Officer Clyde Smith was also working surveillance that night, and was riding alone in an unmarked police car. Officer Smith observed the driver of the truck pick up defendant. He then followed the truck to the parking lot, got out of his vehicle, and met with Officer Ferguson, who was observing the truck. Officer Smith was also able to observe defendant performing an act of fellatio on the driver.

The driver of the truck testified that when he picked up defendant, defendant offered him sex for money. After the two arrived in the parking lot, the driver paid defendant, and defendant thereafter performed fellatio upon him. The driver testified that, when he parked in the lot, he intended that the activities in the truck would remain private. [190 Mich App 716-717.]

3 As set forth in the memorandum opinion signed by all seven justices, this opinion and one of the two dissenting/concurring opinions,(see opinion of Riley, J., post, p 623).

4 Brashier involves behavior with minors. Brashier procured minors to perform fetishes described in the memorandum opinion and in one of the dissenting/concurring opinions (Riley, J., post, pp 622-623) that aroused Goike. It appears that the minors observed, and, to the extent so described, assisted and participated in Goike’s acts of masturbation, who, aided by the activity of the minors so arousing him, masturbated until he reached orgasm.

In the instant case of Brashier, a superpanel of the Court of Appeals, disagreeing with the panel in Lino (see n 2), restated the definition of gross indecency set forth in People v Carey, n 2 supra. People v Brashier, 197 Mich App 672, 679; 496 NW2d 385 (1992).

I agree with the concurring judges in Brashier that a jury could find that what is alleged to have occurred was grossly indecent under the Howell definition of gross indecency. It involved a manual sexual act committed by Goike "with a person under the age of consent” (see n 2 for the Howell definition), even though the persons under the age of consent did not touch Goike. Brashier, supra, p 680, n 1.

The judges said that the Howell definition "is clear, concise, and sufficiently inclusive to include defendant Brashier’s grossly indecent conduct.” Id., p 680. The concurring opinion explained:

The principal, Goike, performed' manual sex acts, masturbation, while defendant encouraged and assisted several persons under the age of consent to abuse Goike until he experienced orgasm. Defendant paid the juveniles; he threatened them; he scripted their actions; he participated in the abuse. He aided and abetted the commission of gross indecency as defined by Howell. [Brashier, supra, p 680, n 1. Emphasis in original.]

In sum, without regard to whether one opts for the definition put forth in Howell or for the "common sense of the community” definition, a person who procures minors to perform the fetishes of a person who is masturbating in their presence, has committed, or aided and abetted, or procured, the commission of an act of gross indecency, even though the activity occurs in private.

5 Any 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, punishable as provided in this section. Any female person who, in public or in private, commits or is a party to the commission of any act of gross indecency with a male person shall be guilty of a felony punishable as provided in this section. Any person who procures or attempts to procure the commission of any act of gross indecency by and between any male person and any female person shall be guilty of a felony punishable as provided in this section. [MCL 750.338b; MSA 28.570(2).]

The Penal Code also proscribes, in identical language, the commission of "any act of gross indecency” between female persons:

Any female person who, in public or in private, commits or is a party to the commission of, or any person who procures or attempts to procure the commission by any female person of any act of gross indecency with anpther female person shall be guilty of a felony, punishable by imprisonment in the state prison for not more than 5 years .... [MCL 750.338a; MSA 28.570(1).]

6 In Kentucky v Wasson, 842 SW2d 487 (Ky, 1992), the Supreme Court of Kentucky held that a criminal statute proscribing consensual homosexual sodomy violates private and equal protection guarantees of the Kentucky Constitution.

In Texas v Morales, 826 SW2d 201 (Tex App, 1992), the Court of Appeals of Texas held that a Texas statute criminalizing private sexual relations between consenting adults of the same sex was unconstitutional, and enjoined enforcement. The court ruled that lesbians and gay men had standing to bring a civil action challenging the statute’s constitutionality, the district court had jurisdiction to grant declaratory and injunctive relief, and the statute violated the state constitutional right of privacy. This decision was reversed by the Texas Supreme Court on the basis that the Texas Court of Appeals did not have jurisdiction regarding criminal statutes, and that only the Texas Supreme Court had jurisdiction. State v Morales, 869 SW2d 941 (Tex, 1994).

In Bowers v Hardwick, 478 US 186; 106 S Ct 2841; 92 L Ed 2d 140 (1986), in an opinion by Justice White and signed by Chief Justice Burger and Justices Powell, Rehnquist and O’Connor, the United States Supreme Court held that the Due Process Clause of the Fourteenth Amendment does not confer a fundamental right on homosexuals to engage in consensual sodomy, even in the privacy of their home.

Justice Powell concurred, pointing out that Hardwick had not been tried, much less convicted and sentenced, and that this was an action for declaratory judgment challenging the validity of the statute. Justice Powell said that it was conceded during oral argument that there had been no reported decision involving prosecution for private homosexual sodomy for several decades, and added:

The history of nonenforcement suggests the moribund character today of laws criminalizing this type of private, consensual conduct. Some 26 States have repealed similar statutes. But the constitutional validity of the Georgia statute was put in issue by respondents, and for the reasons stated by the Court, I cannot say that conduct condemned for hundreds of years has now become a fundamental right. [Id., p 198, n 20.]

Justice Blackmun’s dissent, joined by Justices Brennan, Marshall and Stephens, began with the following statement:

This case is no more about "a fundamental right to engage in homosexual sodomy,” as the Court purports to declare, ante, at 191, than Stanley v Georgia, 394 US 557 [89 S Ct 1243; 22 L Ed 2d 542] (1969), was about a fundamental right to watch obscene movies, or Katz v United States, 389 US 347 [88 S Ct 507; 19 L Ed 2d 576] (1967), was about a fundamental right to place interstate bets from a telephone booth. Rather, this case is about "the most comprehensive of rights and the right most valued by civilized men,” namely, "the right to be let alone.” Olmstead v United States, 277 US 438, 478 [48 S Ct 564; 72 L Ed 944; 66 ALR 376] (1928) (Brandeis, J., dissenting). [Id., p 199.]

7 See part 11, pp 589 ff.

8 Lino, a male prostitute, was clothed as a woman.

9 If, as I would hold, an act of fellatio or cunnilingus committed by consenting adults in private is not grossly indecent, it does not, in my opinion, become grossly indecent because money is paid.

10 See n 2 for the definition of gross indecency set forth in the plurality opinion in Howell.

The former instruction, based on Howell, read as follows:

(1) The defendant is charged with having committed an act of gross indecency with [another male/another female/a male/ a female]. The defendant pleads not guilty to this charge. To establish this charge the prosecution must prove each of the following elements beyond a reasonable doubt:

(2) First, the defendant must have voluntarily committed either a manual or an oral sexual act with a [male/female] person.

(3) A manual sexual act means that the defendant handled the sexual organs of the victim.

(4) An oral sexual act means that [the mouth or tongue of one person was placed in contact with the sexual organs of •another/the penis of one person entered into or against the mouth of another].

(5) Second, if you find that such an act was committed, then you must further determine that the act was committed [without the consent of the complainant/with the complainant and that the complainant was under the age of sixteen years at the time of the alleged offense/openly in a public place], [CJI 20:7:01.]

11 The early cases adverted to in Brashier and by- the majority speak of both the "common sense of the community” and the "common sense of society.”

12 Such prosecutions could also again become a weapon in a divorce action, where one spouse employs private detectives, obtains the names of lovers or prostitutes, and demands prosecution of the other spouse for engaging in an act of gross indecency.

13 Csc of the third degree, a felony punishable by imprisonment for not more than fifteen years, includes sexual penetration with another person where force or coercion is used, or with a person who is at least thirteen and under sixteen. MCL 750.520d; MSA 28.788(4).

Force or coercion includes any of the circumstances listed in § 520b(lXf)(i) to (v) of the Penal Code. MCL 750.520b; MSA 28.788(2).

Csc of the first degree, a felony punishable by imprisonment for life or for any term of years, includes sexual penetration with another person who is under thirteen years of age. MCL 750.520b; MSA 28.788(2).

14 MCL 750.145; MSA 28.340.

15 MCL 750.145a; MSA 28.341.

16 MCL 750.157a; MSA 28.354(1).

17 In People v Howell, n 2 supra, a plurality of this Court defined "gross indecency” to include sexual acts committed in public, or without the consent of the other person involved, or with a person under the age of consent.

The criminal sexual conduct act (MCL 750.520a et seq.; MSA 28.788[1] et seq.) became effective after the sexual conduct involved in Howell occurred, a little over a year before Howell was decided.

The esc act defines "sexual contact” and "sexual penetration” broadly.

(k) "Sexual contact” includes the intentional touching of the victim’s or actor’s intimate parts or the intentional touching of the clothing covering the immediate area of the victim’s or actor’s intimate parts, if that intentional touching can reasonably be construed as being for the purpose of sexual arousal or gratification.

(l) "Sexual penetration” means sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person’s body or of any object into the genital or anal openings of another person’s body, but emission of semen is not required. [MCL 750.520a; MSA 28.788(1).]

The definition of sexual penetration would include sodomy.

Sodomy, "the abominable and detestable crime against nature, either with mankind or with any animal,” continues to be defined in a separate provision of the Penal Code, with a fifteen-year penalty. MCL 750.158; MSA 28.355. See Bowers, n 6 supra.

18 In Myers, the Court of Appeals held that a male person’s grabbing and massaging over clothing the groin area of another male person did not constitute gross indecency. The other male person was a state trooper who, acting in an undercover capacity, was at the entry of a toilet stall in a public restroom at a highway rest area. The two engaged in small talk. The defendant begem stroking himself in the groin area and stated he wanted to play with the trooper. When the trooper asked the defendant what he meant, the defendant put his arm around the trooper’s shoulder and, with his other hand, grabbed and began to massage the trooper’s groin area, stating "let’s play.” The trooper then arrested the defendant. Id., p 216.

The Court said that since the Court of Appeals, following the "common sense of the community” definition, stated in People v Dexter, n 2 supra, had "consistently applied the gross indecency statute at issue and the other gross indecency statutes to cases involving oral sexual acts, we decline, in this instance, to apply the statute to the fact situation herein involving the defendant’s touching of another’s genital area over clothing.” Myers, supra, pp 220-221.

In Emmerich, as in Myers, an undercover police officer engaged in conversation and then some activity with the defendant, concluding with the defendant placing his leg between the officer’s legs, rubbing back and forth, and finally placing his pocketed hand on the officer’s groin area, putting pressure on his genitals, with inquiry regarding what the other "liked.” Id., p 284. The Court opted for the Howell test, but said that even under the "common sense of the community” definition, the touching of the genital area over clothing was not grossly indecent, citing Myers. Emmerich, supra, p 289. •

19 Before Lino’s conduct, the Court of Appeals held that performing fellatio in public constitutes gross indecency. See People v Kalchik, 160 Mich App 40, 45-46; 407 NW2d 627 (1987).

In Howell, n 2 supra, p 21, a plurality of this Court held that the gross indecency statutes prohibit oral sexual acts with a person under the age of consent. The Howell test was adopted by at least two panels of the Court of Appeals before Brashier’s conduct. People v Emmerich, supra, text accompanying n 18; People v Lynch, 179 Mich App 63; 445 NW2d 803 (1989). The phrase "with a person under the age of consent” (see n 2 for definition of gross indecency in the Howell opinion) can fairly be read to cover sexual acts that "involve” the participation of minors although the minors do not touch the person performing the sexual act. See n 4.

20 Kolender v Lawson, 461 US 352, 357; 103 S Ct 1855; 75 L Ed 2d 903 (1983).

21 Similarly, see People v Hayes, 421 Mich 271, 284; 364 NW2d 635 (1984).

22 State v Musser, 118 Utah 537, 544; 223 P2d 193 (1950) (Latimer, J., concurring in the result).

23 The Court in Coates was concerned that the ordinance had the potential to infringe on the First Amendment right of assembly. The decision did not rest, however, entirely on the Court’s First Amendment concerns. The Court said that even "conduct clearly within the city’s constitutional power to prohibit” could not be prohibited "through the enactment and enforcement of an ordinance whose violation may entirely depend upon whether or not a policeman is annoyed.” Id., p 614.

24 The district court had issued a writ of habeas corpus releasing Balthazar because "unnatural and lascivious acts” was impermissibly vague. The First Circuit affirmed.

25 In District of Columbia v Walters, 319 A2d 332, 335 (DC App, 1974), the District of Columbia Court of Appeals held that the portion of a district statute that prohibited the commission of any "lewd, obscene, or indecent act” was void for vagueness. The court said:

The statute betrays the classic defects of vagueness in that it fails to give clear notice of what conduct is forbidden and invests the police with excessive discretion to decide, after the fact, who has violated the law. . . . Opposing segments of the public may well agree as to the lewdness, obscenity or indecency of many acts, to paraphrase the court in Ricks v District of Columbia, 134 US App DC 201, 210-211; 414 F2d 1097 (1968), but they will disagree about many other acts without approaching absurdity. Thus, there is a broad gray area in which the words of the statute will convey substantially different standards to different people. An act that is obscene to one person may be quite innocent to another—and by proscribing ",any other lewd, obscene or indecent act” the statute is so encyclopedic in its reach that areas of reasonable disagreement are limitless. [Emphasis added.]

In Pryor, supra, the California Supreme Court similarly held that language of a criminal statute that required a citizen to make predictions about his community’s moral sensibilities was impermissibly vague. The-court said:

Some jurors would find that acts of extramarital intercourse fall within that definition [lustful, lascivious, unchaste, wanton, or loose in morals and conduct]; some would draw the line between intercourse and other sexual acts; others would distinguish between homosexual and heterosexual acts. Thus one could not determine what actions are rendered criminal by reading the statute or even the decisions which interpret it. He must gauge the temper of the community, and predict at his peril the moral and sexual attitudes of those who will be called to serve on the jury. [Id., pp 251-2521 Emphasis added.]

The court limited the offense of committing "lewd and dissolute conduct” in public to "conduct which involves the touching of genitals, buttocks, or female breast for the purpose of sexual arousal, gratification, annoyance or offense . . . .” Id. at 256. The court adopted this narrowing construction, in part, because it did "not impose vague and far-reaching standards under which the criminality of an act depends upon the inoral views of the judge or jury . . . .” Id., p 257. (Emphasis added.)

26 In People v Ferguson, 45 Mich App 697, 700; 206 NW2d 812 (1973), and People v McCaleb, 37 Mich App 502, 507; 195 NW2d 17 (1972), the Court of Appeals explained that, under the "common sense of the community” test, the jury must be instructed that an essential element of the charge is "whether the defendant’s conduct measured by their own common sense was indecent and improper.” (Emphasis added.)

27 In Miller v California, 413 US 15; 93 S Ct 2607; 37 L Ed 2d 419 (1973), the United States Supreme Court held that a trier of fact may convict a defendant under an obscenity statute if it finds that (1) the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; (2) the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; (3) the work as a whole lacks serious artistic, literary, political, or scientific value.

28 The Court said that it did not

agree with the Supreme Court of Georgia’s apparent conclusion that the jury’s verdict against appellant virtually precluded all further appellate review of appellant’s assertion that his exhibition of the film was protected by the First and Fourteenth Amendments. Even though questions of appeal to the "prurient interest” or of patent offensiveness are “essentially questions of fact,” it would be a serious misreading of Miller to conclude that juries have unbridled discretion in determining what is "patently offensive.” Not only did we there say that "the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary,” [Miller, supra] 413 US 25, but we made it plain that under that holding "no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive 'hard core’ sexual conduct. . . .” Id. at 27.

We also took pains in Miller to "give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced,” that is, the requirement of patent offensiveness. Id. at 25. These examples included "representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated,” and "representations or descriptions of masturbations, excretory functions, and lewd exhibition of the genitals.” Ibid. While this did not purport to be an exhaustive catalog of what juries might find patently offensive, it was certainly intended to £x substantive constitutional limitations, deriving from the First Amendment, on the type of material subject to such a determination. It would be wholly at odds with this aspect of Miller to uphold an obscenity conviction based upon a defendant’s depiction of a woman with a bare midriff, even though a properly charged jury unanimously agreed on a verdict of guilty. [418 US 160-161. Emphasis added.]

29 While the values underlying the First Amendment were important to the Court in Jenkins, the broader teaching of Jenkins is that unbridled discretion to find conduct criminal cannot be confided to the trier of fact.

In State v Henry, 302 Or 510, 513; 732 P2d 9 (1987), an obscenity prosecution that focused on the application of "contemporary standards” to allegedly obscene material, the court said:

The indeterminacy of the crime created by [Oregon Revised Statutes] 167.087 does not lie in the phrase "sexual conduct” that is further defined in ORS 167.060(10). It lies in tying the criminality of a publication to "contemporary state standards.” Even in the ordinary criminal law, we doubt that the legislature can make it a crime to conduct oneself in a manner that falls short of "contemporary state standards.” In a law censoring speech, writing, or publication, such an indeterminate test is intolerable.

30 The political, literary, scientific, and artistic value, of a work is judged not by community standards, but according to the "reasonable person” standard. Pope v Illinois, 481 US 497, 501; 107 S Ct 1918; 95 L Ed 2d 439 (1987).

31 The jury was instructed:

The Defendant is charged with having committed an act of gross indecency with another male. The Defendant pleads not guilty to this charge. To establish this charge the prosecution must prove each of the following elements beyond a reasonable doubt:

First, the Defendant must have voluntarily committed an oral sexual act with another male person. An oral sexual act means that the mouth or tongue of one person was placed in contact with the sexual organs, the penis, of another person. Second, if you find that such an act was committed, then you must further determine that the act was committed openly and in a public place.

32 The commentary to the public lewdness section of the Model Penal Code states that

the rationale of this provision is to prevent the open flouting of societal conventions, it should not condemn as debauchers of public morality persons who desire privacy and who take reasonable measures to secure it. [American Law Institute, Model Penal Code, § 251.1, p 452.]

A couple who drive out to a secluded "lover’s lane” and engages in sexual conduct should not be said to have committed an act of gross indecency in a public place if a lost hiker happens to stumble across them.

33 No member of the public inadvertently witnessed the sexual act. Nor does it appear that it was likely that a member of the public would have inadvertently witnessed the act.

If an automobile had unexpectedly driven into the overflow parking lot, Lino might have ceased fellating the customer.

When the officer identified himself, the driver started his vehicle and drove away at a high rate of speed.

There is no evidence that the use of the parking lot as a “lover’s lane” had become sufficiently notorious that adults or minors congregated near the opening of the fence and vied with each other for an opportunity to stand where the officer stood so that they could observe such sexual activity.

The prosecution presented evidence that, at the time of Lino’s conduct, the restaurant connected to the overflow parking lot in which Lino’s conduct occurred, was open. This evidence alone is not sufficient to support a finding that it was reasonably likely that members of the public would in fact be present in the overflow parking lot. The parking lot was, after all, an overflow lot.

34 See McNamara, supra, p 793 where the Court said that an information that failed to "establish that [parked] vehicle was situated in a place where it was likely that respondent’s lewd acts would be observed” by a member of the public was insufficient.

35 Opinion of Boyle, J., post, pp 603-604.

36 MCL 750.145c(2); MSA 28.342a(2).

37 See ns 13-16 and accompanying text.

38 Opinion of Boyle, J., post, p 614.

39 Id., p 616.

40 Id., p 617.

41 Brashier, supra, p 680, n 1.