People v. Masten

292 N.W.2d 171, 96 Mich. App. 127, 1980 Mich. App. LEXIS 2540

Opinions

Danhof, C.J.

The defendant was charged with attempting to procure an act of gross indecency, MCL 750.338; MSA 28.570.¹ At his trial before the bench, the people’s evidence indicated that on the evening of August 6, 1976, the defendant approached three Grand Rapids police officers in the vicinity of that city’s Pantlind Hotel and offered to perform acts of fellatio for the sum of $25. One of the officers asked the defendant "if he had a place to go”. The defendant replied that he did not, and was arrested without further conversation. The defendant testified that his offer was the product of threats against him by three other men, who had instructed him to bring them the money he received for "hustling”. Upon conviction, a sentence of two to five years was imposed.

The defendant’s first claim on appeal challenges the sufficiency of the people’s evidence, arguing that the exchange between the arresting officers and himself was not adequate to show that he proposed to them the public commission of an "act of gross indecency”. This contention draws its legal force from the opinion in People v Howell, 396 Mich 16; 238 NW2d 148 (1976), in which three justices wrote:

"[We] 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.” 396 Mich 16, 24.

The defendant is correct in his assessment of the proofs. His statement to the officers that he did not have a place to go for the performance of the acts he proposed does not show an offer to perform them in public. However, in arguing the meaning of the evidence, both the prosecution and the defendant mistake the precedential impact of the statutory construction offered in Howell.

Five and perhaps all six of the justices who sat in Howell concurred in the greater part of that opinion, while that portion of the opinion on which the defendant relies (section II, pp 22-24) did not receive the same degree of support. Two justices withheld their concurrence from section II completely; Justice Lindemer abandoned section II with respect to one defendant and apparently dissented from the opinion altogether as it applied to the other defendant in the case.² Two panels of this Court have found that Howell’s section II announced no more than the law of that case. People v William Clark, 68 Mich App 48, 53, fn 1; 241 NW2d 756 (1976), People v Jones, 75 Mich App 261, 272, fn 5; 254 NW2d 863 (1977).³ Without the limitations set forth in Howell’s section II, the gross indecency statute operates by its terms to control both public and private conduct. Thus, the defendant cannot profit from the people’s failure to show a proposal of a public sexual act.

The defendant’s principal attack on his conviction consists of a claim that the gross indecency statute is unconstitutionally vague, insufficiently apprising potential offenders of the conduct that it proscribes. In this connection, People v Howell, supra, is of substantial import, for with the support of at least five justices it resolved a similar claim by the application of an analysis that is binding on this Court and well fitted for use in the case at bar.

The Howell Court utilized the "specific conduct” approach illustrated in United States v National Dairy Products Corp, 372 US 29; 83 S Ct 594; 9 L Ed 2d 561 (1963). That case indicates that an enactment that is too vague to disclose every case in which it might apply may properly form the basis of a prosecution for a particular act that is clearly and fairly within its meaning. The focus of this analysis is on the conduct charged rather than the precision of the legislative drafting. The possibility of indecision or unfair application at the periphery of the statute’s meaning does not preclude its use when uncertainty or surprise as to a particular act does not fairly arise.⁴ The Howell majority also approved the principles employed in Wainwright v Stone, 414 US 21; 94 S Ct 190; 38 L Ed 2d 179 (1973), and Rose v Locke, 423 US 48; 96 S Ct 243; 46 L Ed 2d 185 (1975). These cases, seeking to define what sources may supply the notice a statute affords, recognized judicial construction and comment as a logical and proper adjunct to the language of statutory enactments. Rose demonstrated that if the case law fairly supplies adequate warning of the statute’s potential effect, the absence of a holding directly on point will not serve to relieve a defendant of his criminal liability.

Addressing the Howell defendant’s attacks on the gross indecency statute, the Supreme Court held that while the statute itself could not have warned the defendants that the acts charged against them (fellatio by force and with a child) were illegal, the fact that it had "long been applied” to those acts adequately forewarned them of the possible consequences.⁵

All that remains in evaluating the defendant’s "fair warning” claim is the application of the Howell analysis to the present conviction for attempting to procure the commission of a private act of fellatio between consenting adult males.⁶ We have little difficulty in determining that the decisions of this Court were ample to warn the defendant that his conduct was illegal. That the statute would be applied when prohibited sexual acts occurred in private and with the consent of the participants was announced by People v McCaleb, 37 Mich App 502; 195 NW2d 17 (1972) (applying the substantially identical provisions of MCL 750.338[b]; MSA 28.570[2]), and People v Livermore, 9 Mich App 47; 155 NW2d 711 (1967) (in which another nearly identical provision, MCL 750.338[a]; MSA 28.570[1] was applied). Acts of fellatio were said to be within the statute’s reach in People v Schmitt, 275 Mich 575, 577-578; 267 NW 741 (1936), and People v McCaleb, supra. In People v Dexter, 6 Mich App 247; 148 NW2d 915 (1967), this statute was held to allow prosecution on a charge of attempting to induce a male adult to engage in fellatio with the male defendant in a private place.⁷

A statute may be void for vagueness if it "confers on the trier of fact unstructured and unlimited discretion to determine whether an offense has been committed”. People v Howell, supra, 20, citing Grayned v City of Rockford, 408 US 104; 92 S Ct 2294; 33 L Ed 2d 222 (1972). It is the defendant’s claim that the gross indecency statute permits that improper exercise of discretion by failing to enumerate the acts to which it applies.

In People v Dexter, supra, the same argument was advanced and rejected by this Court:

"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 (1948), 321 Mich 248, 252. The gross indecency statute is not vague or bereft of guidelines.” 6 Mich App 247, 253.

The Supreme Court addressed Dexter and left it untouched in Howell’s section II, supra. Thus, we regard Dexter’s application of the Szymanski decision as controlling in the case at bar.

We cannot find it within the judicial purview to measure the "common sense of society” or to produce a "construction” of this extremely general statute so as to insulate particular classes of sexual conduct from criminal liability. Nevertheless, one aspect of Howell’s section II cannot be ignored. The justices’ removal of private consensual sexual acts from tíie statute’s reach reflected not only their doubts as to the values of the society but a concern for constitutionally protected privacy rights as well; their proposed construction of the statute wholly avoided the necessity of confronting that issue. 396 Mich 16, 24, fn 10. The belief that private sexual conduct is not a matter of state concern is not an irrational one. However, our function here is simply to determine whether, with respect to the conduct we have seen to be affected by this legislative enactment, that concern enjoys constitutional foundation. The Supreme Court of the United States has indicated that it does not. Doe v Commonwealth’s Attorney for the City of Richmond, 403 F Supp 1199 (ED Va, 1975), aff’d 425 US 901; 96 S Ct 1489; 47 L Ed 2d 751 (1976).

Affirmed.

Beasley, J., concurred.

Footnotes

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, 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.”

2

"Cavanagh, C.J., and Williams, J., concurred with Levin, J.

"The undersigned concur in this opinion with the exception of section II:

"Coleman and Fitzgerald, JJ.; Lindemer, J., as to Helzer only.

"Ryan, J., took no part in the decision of this case.” 396 Mich 16, 29.

3

We observe that the compilers of the Michigan Criminal Jury Instructions have concluded that the enigmatic array of concurrences in Howell created section II as precedent "binding on the Court of Appeals * * * until overruled” under the rule of Negri v Slotkin, 397 Mich 105, 110; 244 NW2d 98 (1976). III CJI, Commentary, p 20-104.

4

National Dairy held that the sale of goods below cost for the purpose of destroying competition was a potential charge adequately announced by the Robinson-Patman act, which proscribes the selling of goods at "unreasonably low prices for the purpose of destroying competition or eliminating a competitor,” 15 USC 13a.

5

The Court cited no examples of the history to which it referred. The fact that it found that citation unnecessary confirms a point that is implicit in the reasoning of Wainwright, supra: It is not crucial to a "fair warning” analysis that the judicial pronouncements said to give that warning be of any particular age. Both statutes and judicial opinions give notice of their contents when they are published. The "long” application noted in Howell simply reduced the vitality of an already inadequate constitutional attack.

6

Because the statute does not attach any significance to the transfer of money in connection with the acts it proscribes, we conclude that the commercial aspect of the defendant’s proposition to the officers has no significance.

7

Dexter also implicitly held that "procuring” an act of gross indecency may occur when a defendant proposes that he and another person engage in prohibited conduct. Contrary to the defendant’s assertion, the meaning of the term "procure” is not limited to situations in which one person attempts to induce an illegal act involving two or more other persons.