PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Anthony William VRONKO, Defendant-Appellant.
Docket No. 197378.
Court of Appeals of Michigan.
Submitted October 8, 1997, at Grand Rapids. Decided March 17, 1998, at 9:10 a.m. Released for Publication June 17, 1998.*139 Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, William A. Forsyth, Prosecuting Attorney, Timothy K. McMorrow, Chief Appellate Attorney, and Vicki L. Seidl, Assistant Prosecuting Attorney, for People.
Carolyn A. Blanchard, Northville, for Defendant-Appellant on appeal.
Before WHITE, P.J., and MARK J. CAVANAGH and REILLY, JJ.
PER CURIAM.
Defendant appeals as of right from his bench trial conviction of indecent exposure, M.C.L. § 750.335a; M.S.A. § 28.567(1), and from his subsequent guilty plea of being a sexually delinquent person, M.C.L. § 750.10a; M.S.A. § 28.200(1). Pursuant to M.C.L. § 750.335a; M.S.A. § 28.567(1), the trial court sentenced defendant to an indeterminate term of one day to life in prison. We affirm.
*140 At defendant's bench trial on the charge of indecent exposure, a witness testified that she noticed a "suspicious" automobile parked in a no-parking zone in front of her house at approximately 8:00 a.m. Defendant was sitting alone in the driver's side of the vehicle looking around. The passenger-side window of defendant's automobile was down and the doors were shut. There were two elementary schools in the neighborhood. Children walking to school passed on the sidewalk between the witness' house and the passenger side of defendant's automobile. From the front door of her house, above street level, the witness noticed that defendant was wearing a long-sleeved shirt and that his legs were bare. She could not tell whether defendant was wearing any shorts or underwear. The witness testified that defendant's "right hand was in his crotch and it was just going like gangbusters." She then explained that it looked like defendant had something in his hand, but she could not see what it was. Although she had "no doubt" that defendant was exposing himself to the passing school children and masturbating, the witness never saw defendant's penis and never saw the children react to defendant in any way.
On appeal, defendant first contends that his conviction must be reversed because the indecent exposure statute is unconstitutionally vague on its face and as applied to him. We disagree. This Court reviews de novo a challenge to a statute's constitutionality under the void-for-vagueness doctrine. People v. Hubbard (After Remand), 217 Mich.App. 459, 484, 552 N.W.2d 493 (1996).
A statute challenged on constitutional grounds is presumed to be constitutional and will be construed as such unless its unconstitutionality is clearly apparent. Hubbard, supra at 483-484, 552 N.W.2d 493. A penal statute is unconstitutionally vague if (1) it does not provide fair notice of the conduct proscribed, (2) it confers on the trier of fact unstructured and unlimited discretion to determine whether an offense has been committed, or (3) its coverage is overly broad and impinges on First Amendment Freedoms. People v. Howell, 396 Mich. 16, 20, 238 N.W.2d 148 (1976); Hubbard, supra at 484, 552 N.W.2d 493. In this case, defendant has asserted no violation of the First Amendment. Accordingly, neither the doctrine of overbreadth, see People v. Cavaiani, 172 Mich.App. 706, 711, 432 N.W.2d 409 (1988), nor the third prong of the above test apply. When a defendant's vagueness challenge does not implicate First Amendment freedoms, the constitutionality of the statute in question must be examined in light of the particular facts at hand without concern for the hypothetical rights of others. See Howell, supra at 21, 238 N.W.2d 148; People v. Lynch, 410 Mich. 343, 352, 301 N.W.2d 796 (1981); People v. Gunnett, 158 Mich.App. 420, 426-427, 404 N.W.2d 627 (1987). The proper inquiry is not whether the statute may be susceptible to impermissible interpretations, but whether the statute is vague as applied to the conduct allegedly proscribed in this case. See People v. Harbour, 76 Mich.App. 552, 558, 257 N.W.2d 165. (1977).
The indecent exposure statute provides, in pertinent part, that "[a]ny person who shall knowingly make an open or indecent exposure of his or her person or of a person of another shall be guilty of a misdemeanor." M.C.L. § 750.335a; M.S.A. § 28.567(1). Defendant argues that this language, including the euphemism "of his or her person," failed to give him fair notice of the proscribed conduct. When making a vagueness determination, a court must take into consideration any judicial constructions of the statute. People v. Lino, 447 Mich. 567, 575, 527 N.W.2d 434 (1994). A statute is not vague if the meaning of the words in controversy can be fairly ascertained by reference to judicial determinations, the common law, dictionaries, treatises, or their generally accepted meaning. Cavaiani, supra at 714, 432 N.W.2d 409. The Michigan Supreme Court, addressing the predecessor to the current indecent exposure statute, explained:
The well settled and generally known significance of the phrase "indecent and obscene exposure of the person" is the exhibition of those private parts of the person which instinctive modesty, human decency or natural self-respect requires shall be customarily kept covered in the *141 presence of others. [People v. Kratz, 230 Mich. 334, 337, 203 N.W. 114 (1925); see also People v. Ring, 267 Mich. 657, 662,255 N.W. 373 (1934).]
Accordingly, this Court has held that a defendant's on-stage act of masturbation in the presence of a consenting audience could constitutionally be prohibited under the indecent exposure statute. See People v. Wilson, 95 Mich.App. 440, 441-444, 291 N.W.2d 73 (1980).
With respect to the common uses of the words contained in the statute, Webster's New Collegiate Dictionary (1977) defines "open," in part, as being "exposed to general view or knowledge," "having no protective covering," and "to disclose or expose to view." Likewise, the word "exposure" is defined as meaning a "disclosure to view" especially of "a weakness or something shameful or criminal." Id. "Indecent" is defined as "grossly unseemly or offensive to manners or morals." Id. Finally, "indecent exposure" is defined as being an "intentional exposure of part of one's body (as the genitals) in a place where such exposure is likely to be an offense against the generally accepted standards of decency in a community." Id. Given these definitions and judicial constructions, the language of the indecent exposure statute (1) provided fair notice to defendant that the act of exposing one's penis and masturbating while seated in an automobile parked on a public street with its window open was conduct proscribed by the statute, and (2) did not confer on the trier of fact unstructured and unlimited discretion to determine whether an offense has been committed in the context of the charged conduct. Therefore, we hold that the indecent exposure statute was not unconstitutionally vague as applied to defendant. Hubbard, supra at 484, 552 N.W.2d 493.
Defendant next contends that the evidence was insufficient to support a conviction of indecent exposure. When reviewing the sufficiency of the evidence in a criminal case, this Court must view the evidence in a light most favorable to the prosecution to determine whether a rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt. People v. Wolfe, 440 Mich. 508, 515, 489 N.W.2d 748 (1992), amended 441 Mich. 1201 (1992). Defendant first argues that the evidence was insufficient to support the inference that his penis was ever uncovered. We disagree. From the witness' testimony that defendant's legs were bare, that his hand was moving in his crotch, and that it looked like he had something in his hand, a rational trier of fact could infer that defendant was masturbating and that his penis was uncovered. Defendant also argues that, even if his penis was uncovered, the evidence was insufficient to support his conviction because, according to the testimony of the witness, nobody actually saw defendant's uncovered penis. Again, we disagree.
The issue whether a person's exposure must actually be witnessed by another person in order to constitute the crime of indecent exposure is one of first impression in Michigan. Although the standard criminal jury instruction purports to include as an element of the crime a requirement that the defendant's exposure be witnessed by "another person," see CJI2d 20.33, the language of the statute does not explicitly require the existence of such a witness, see M.C.L. § 750.335a; M.S.A. § 28.567(1). Thus, if the offense does in fact include such an element, it must be contained within the words "open or indecent exposure." All provisions of the Penal Code are construed according to the fair import of their terms. M.C.L. § 750.2; M.S.A. § 28.192; People v. Armstrong, 212 Mich.App. 121, 127, 536 N.W.2d 789 (1995). Where a statutory provision employs the general terms of the common law to describe an offense, courts will construe the statutory crime by resorting to the common-law definition. People v. Reeves, 448 Mich. 1, 8, 528 N.W.2d 160 (1995); People v. Schmitt, 275 Mich. 575, 577, 267 N.W. 741 (1936); see also Morissette v. United States, 342 U.S. 246, 263, 72 S.Ct. 240, 250, 96 L.Ed. 288 (1952). At common law, it was not required that an "indecent exposure" be observed in order to constitute a punishable misdemeanor. 3 Wharton's Criminal Law (15th ed.), § 308, pp. 196-200, citing State v. Martin, 125 Iowa 715, 101 N.W. 637 (1904); Van Houten v. State, 46 N.J.L. 16 (1884); State v. Roper, 18 *142 N.C. 208 (1835). But see State v. Buffano, 5 N.J.Super. 255, 257, 68 A.2d 765 (1949). Instead, it was necessary merely that the exposure occur in a public place. 3 Wharton's Criminal Law (15th ed.), § 308, p. 200 (citing cases).
The common-law interpretation of indecent exposure is consistent with our interpretation of the statutes proscribing "gross indecency," M.C.L. § 750.338-750.338b; M.S.A. § 28.570-28.570(2). The gross indecency statutes seek to protect the public from the possibility of being exposed to certain acts of sexual conduct. Such conduct is grossly indecent "when an unsuspecting member of the public, who is in a place the public is generally invited or allowed to be, could have been exposed to or viewed the act." People v. Brown (After Remand), 222 Mich.App. 586, 591-592, 564 N.W.2d 919 (1997). Similarly, Michigan Supreme Court Justice Boyle, concurring in In re Certified Question, 420 Mich. 51, 63, 359 N.W.2d 513 (1984), defined "open exposure" under the indecent exposure statute as being "any conduct consisting of a display of any part of the human anatomy under circumstances which create a substantial risk that someone might be offended." According to Justice Boyle, "[t]his standard would require evaluation of the setting in which the exposure took place in order to determine whether anyone might reasonably have been expected to observe it and, if so, whether the person might reasonably have been expected to have been offended by what was seen." Id. Justice Boyle's definition, although not binding on this Court, is consistent with the common-law interpretation of the offense, and nothing in the language of the statute suggests that the Legislature intended to modify the common-law interpretation. For these reasons, we hold that there is no requirement that the defendant's exposure actually be witnessed by another person in order to constitute "open or indecent exposure," as long as the exposure occurred in a public place under circumstances in which another person might reasonably have been expected to observe it. Applying this definition to the facts at hand, the evidence was sufficient to support defendant's conviction. Wolfe, supra at 515, 489 N.W.2d 748.
Next, defendant argues that the indeterminate nature of his sentence of one day to life in prison was an improper delegation of judicial authority to the executive branch in violation of the Separation of Powers Clause of the state constitution, Const. 1963, art. 3, § 2. Defendant's argument is without merit. "Since the 1902 amendment of the 1850 Michigan Constitution, the people of this state have provided the Legislature with the power to establish indeterminate sentences, and the constitutionality of indeterminate sentencing legislation has been upheld by our courts." People v. Legree, 177 Mich.App. 134, 139, 441 N.W.2d 433 (1989); see also Const. 1963, art. 4, § 45 (establishing the power of the Legislature to provide for indeterminate sentences); Manaca v. Ionia Circuit Judge, 146 Mich. 697, 699-704,110 N.W. 75 (1906) (upholding the constitutionality of indeterminate sentencing). In this case, although defendant's sentence of one day to life in prison contained the widest range possible, the Parole Board was given no more power to determine defendant's actual day of release than it would be given with any other indeterminate sentence. Defendant also argues that his sentence violated the indeterminate sentencing act, specifically M.C.L. § 769.9(2); M.S.A. § 28.1081(2). This argument too is without merit. This Court has held that the imposition of an indeterminate sentence of one day to life in prison on a defendant found to be a sexually delinquent person at the time of an indecent exposure offense did not violate the indeterminate sentencing act. People v. Kelly, 186 Mich.App. 524, 528-531,465 N.W.2d 569 (1990). Therefore, defendant's sentence of one day to life in prison was valid.
Finally, defendant argues that the factual basis was insufficient to support his plea of guilty of being a sexually delinquent person. However, because defendant failed to move to withdraw his guilty plea pursuant to MCR 6.311(A) and failed to move for remand pursuant to MCR 7.211(C)(1), this *143 issue has not been preserved for appeal. See MCR 6.311(C); People v. Kaczorowski, 190 Mich.App. 165, 172, 475 N.W.2d 861 (1991). In any event, we note that even if we were to consider the merits of this claim, the factual basis was sufficient to support defendant's plea. See M.C.L. § 750.10a; M.S.A. § 28.200(1).
Affirmed.