Howell test in Michigan

1999The district court limited its analysis to the second prong of the Howell test. 2 We reject defendant’s assertion that the reasonable person standard does not vitiate the constitutional infirmity of the term “annoy.” It is true that the United States Supreme Court concluded in Coates v Cincinnati, 402 US 611, 614 ; 91 S Ct 1686 ; 29 L Ed 2d 214 (1971), that an ordinance proscribing conduct that was “annoying to passers by” was unconstitutionally vague.

1999The district court limited its analysis to the second prong of the Howell test. 2 We reject defendant’s assertion that the reasonable person standard does not vitiate the constitutional infirmity of the term “annoy.” It is true that the United States Supreme Court concluded in Coates v Cincinnati, 402 US 611, 614 ; 91 S Ct 1686 ; 29 L Ed 2d 214 (1971), that an ordinance proscribing conduct that was “annoying to passers by” was unconstitutionally vague.

1994Emmerich, supra, p 289 . [19] Before Lino's conduct, the Court of Appeals held that performing fellatio in public constitutes gross indecency.

1994Emmerich, supra, p 289 . [19] Before Lino's conduct, the Court of Appeals held that performing fellatio in public constitutes gross indecency.

1994On 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).

1994On 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).

1994People v Emmerich, supra , text accompanying n 18; People v Lynch, 179 Mich App 63 ; 445 NW2d 803 (1989).

1994People v Emmerich, supra , text accompanying n 18; People v Lynch, 179 Mich App 63 ; 445 NW2d 803 (1989).

1994The special panel issued a per curiam opinion rejecting the Howell standard for gross indecency *575 and adopting the common-sense-of-the-community standard. 197 Mich App 672, 679 ; 496 NW2d 385 (1992).

1994The special panel issued a per curiam opinion rejecting the Howell standard for gross indecency *575 and adopting the common-sense-of-the-community standard. 197 Mich App 672, 679 ; 496 NW2d 385 (1992).

1994See, e.g., Howell, supra at 22 (finding forced fellatio and fellatio performed on a nine-year-old boy gross indecency); People v Myers, 161 Mich App 215, 220 ; 409 NW2d 787 (1987). [8] Indeed, even under the Howell standard, fellatio should be understood as an "ultimate" sex act.

1994See, e.g., Howell, supra at 22 (finding forced fellatio and fellatio performed on a nine-year-old boy gross indecency); People v Myers, 161 Mich App 215, 220 ; 409 NW2d 787 (1987). [8] Indeed, even under the Howell standard, fellatio should be understood as an "ultimate" sex act.

1994This 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).

1994This 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).

1994See, e.g., Howell, supra at 22 (finding forced fellatio and fellatio performed on a nine-year-old boy gross indecency); People v Myers, 161 Mich App 215, 220 ; 409 NW2d 787 (1987). [8] Indeed, even under the Howell standard, fellatio should be understood as an "ultimate" sex act.

1994See, e.g., Howell, supra at 22 (finding forced fellatio and fellatio performed on a nine-year-old boy gross indecency); People v Myers, 161 Mich App 215, 220 ; 409 NW2d 787 (1987). [8] Indeed, even under the Howell standard, fellatio should be understood as an "ultimate" sex act.

1989Having considered the conflict in the context of this case, I have reconsidered my position and determined that the Howell test is the appropriate standard. 3 Panels of this Court have disagreed on whether the touching or stroking of an exposed penis is an act of gross indecency People v Holland, 49 Mich App 76 ; 211 NW2d 224 (1973) (charge dismissed); People v Trammell, 171 Mich App 128 ; 429 NW2d 810 (1988) (conviction affirmed).

1989Having considered the conflict in the context of this case, I have reconsidered my position and determined that the Howell test is the appropriate standard. 3 Panels of this Court have disagreed on whether the touching or stroking of an exposed penis is an act of gross indecency People v Holland, 49 Mich App 76 ; 211 NW2d 224 (1973) (charge dismissed); People v Trammell, 171 Mich App 128 ; 429 NW2d 810 (1988) (conviction affirmed).

1989See, e.g., People v William Clark, 68 Mich App 48, 52-53 ; 241 NW2d 756 (1976), People v Masten, 96 Mich App 127, 132 ; 292 NW2d 171 (1980), rev’d on other grounds 414 Mich 16 ; 322 NW2d 547 (1982), and People v Dauer, 131 Mich App 839 ; 346 NW2d 599 (1984).

1989See, e.g., People v William Clark, 68 Mich App 48, 52-53 ; 241 NW2d 756 (1976), People v Masten, 96 Mich App 127, 132 ; 292 NW2d 171 (1980), rev’d on other grounds 414 Mich 16 ; 322 NW2d 547 (1982), and People v Dauer, 131 Mich App 839 ; 346 NW2d 599 (1984).

1989Giaccio v Pennsylvania, 382 US 399, 402-403 ; 86 S Ct 518 ; 15 L Ed 2d 447 (1966). [ 396 Mich 23 -24.] Finally, unlike the Dexter test, the Howell standard has the advantage of diffusing several potential constitutional challenges to this gross inde *289 cency statute, or to other statutes prohibiting gross indecency between males and females.

1989Giaccio v Pennsylvania, 382 US 399, 402-403 ; 86 S Ct 518 ; 15 L Ed 2d 447 (1966). [ 396 Mich 23 -24.] Finally, unlike the Dexter test, the Howell standard has the advantage of diffusing several potential constitutional challenges to this gross inde *289 cency statute, or to other statutes prohibiting gross indecency between males and females.

1989It is derived from People v Hicks, 98 Mich 86 ; 56 NW 1102 (1893), a turn-of-the century case involving the offense of taking indecent liberties with a *287 child.

1989It is derived from People v Hicks, 98 Mich 86 ; 56 NW 1102 (1893), a turn-of-the century case involving the offense of taking indecent liberties with a *287 child.

1989It is derived from People v Hicks, 98 Mich 86 ; 56 NW 1102 (1893), a turn-of-the century case involving the offense of taking indecent liberties with a *287 child.

1989It is derived from People v Hicks, 98 Mich 86 ; 56 NW 1102 (1893), a turn-of-the century case involving the offense of taking indecent liberties with a *287 child.

1989See, e.g., People v William Clark, 68 Mich App 48, 52-53 ; 241 NW2d 756 (1976), People v Masten, 96 Mich App 127, 132 ; 292 NW2d 171 (1980), rev’d on other grounds 414 Mich 16 ; 322 NW2d 547 (1982), and People v Dauer, 131 Mich App 839 ; 346 NW2d 599 (1984).

1989See, e.g., People v William Clark, 68 Mich App 48, 52-53 ; 241 NW2d 756 (1976), People v Masten, 96 Mich App 127, 132 ; 292 NW2d 171 (1980), rev’d on other grounds 414 Mich 16 ; 322 NW2d 547 (1982), and People v Dauer, 131 Mich App 839 ; 346 NW2d 599 (1984).

1989See, e.g., People v William Clark, 68 Mich App 48, 52-53 ; 241 NW2d 756 (1976), People v Masten, 96 Mich App 127, 132 ; 292 NW2d 171 (1980), rev’d on other grounds 414 Mich 16 ; 322 NW2d 547 (1982), and People v Dauer, 131 Mich App 839 ; 346 NW2d 599 (1984).

1989See, e.g., People v William Clark, 68 Mich App 48, 52-53 ; 241 NW2d 756 (1976), People v Masten, 96 Mich App 127, 132 ; 292 NW2d 171 (1980), rev’d on other grounds 414 Mich 16 ; 322 NW2d 547 (1982), and People v Dauer, 131 Mich App 839 ; 346 NW2d 599 (1984).

1983"The standard employed for ascertaining whether a criminal statute is void for vagueness was enunciated in Lanzetta v New Jersey [ 306 US 451, 453 ; 59 S Ct 618 ; 83 L Ed 888 (1939)]: " '[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.’ ” The Court concluded that the word "torture” has a *727 common and ordinary meaning, and that the statute would not cause people of common intelligence to speculate as to i

1983"The standard employed for ascertaining whether a criminal statute is void for vagueness was enunciated in Lanzetta v New Jersey [ 306 US 451, 453 ; 59 S Ct 618 ; 83 L Ed 888 (1939)]: " '[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.’ ” The Court concluded that the word "torture” has a *727 common and ordinary meaning, and that the statute would not cause people of common intelligence to speculate as to i

1983In People v Biegajski, 122 Mich App 215, 224-225 ; 332 NW2d 413 (1982), a panel of this Court rejected a vagueness challenge to the torture statute, stating: "Defendant claims the child torture statute is violative of the first two prongs of the Howell test because the statute does not define the word 'torture’.

1983In People v Biegajski, 122 Mich App 215, 224-225 ; 332 NW2d 413 (1982), a panel of this Court rejected a vagueness challenge to the torture statute, stating: "Defendant claims the child torture statute is violative of the first two prongs of the Howell test because the statute does not define the word 'torture’.

1980That 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).

1980That 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).

1980That 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).

1980That 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).