Gross indecency; MCL 750.338b; Definition of gross indecency; People v Lino; Overt sexual activity; People v Drake; Public masturbation; People v Bono; Party to commission of an act; Sufficiency of evidence; Ineffective assistance of counsel; Failure to call witness; People v Dixon; Effect of the lack of a Ginther hearing

The court held that sufficient evidence supported defendant’s gross-indecency conviction and that trial counsel was not ineffective for failing to call an officer as a witness. Defendant was convicted after a bench trial based on an incident in a prison visiting room in which a female visitor touched his penis through his clothing for several minutes while other people were present. The trial court denied his motion for a directed verdict and found him guilty. On appeal, the court reviewed the caselaw defining gross indecency and noted that, after Lino, courts must decide “case by case” whether an act is grossly indecent. The court held that the evidence was sufficient because the act was sexual in nature, occurred in a public visiting room without privacy or obstruction, and was visible enough that Officer F could determine in real time from video that sexual contact was occurring. It rejected defendant’s reliance on the lack of exposure or skin-to-skin contact because caselaw establishes that “public masturbation is a grossly indecent act,” and the act was “open and perceivable.” The court also rejected his argument that he was merely present and not a party to the act. Assuming consent was required, the evidence supported that he consented because the visitor believed he did, he did not ask her to stop, Officer F did not see him try to stop her, and the incident lasted 8 to 10 minutes. Finally, counsel was not ineffective for failing to call Officer P, who would have testified that a strip search found no contraband or altered clothing, because direct genital contact or exposure was unnecessary and the testimony would not have changed the outcome. Affirmed.