Background
Desmond Duane-Mark LeFlore was convicted after a bench trial of gross indecency as a fourth habitual offender. The charge arose from a prison visit at the Ionia Correctional Facility, where a corrections officer monitoring live video saw LeFlore’s girlfriend place her hand inside his pants while the front of his pants moved away from and toward his body. The conduct continued for eight to 10 minutes in an unpartitioned visiting room where other people were present.
LeFlore’s girlfriend testified that she stroked his penis through clothing and believed that he consented. LeFlore testified that he had not requested the touching but did not stop it because he did not think they were doing anything wrong. On appeal, he argued that the prosecution presented insufficient evidence of gross indecency and that trial counsel was ineffective for failing to call the officer who strip-searched him after the visit.
The Court’s Holding
The Michigan Court of Appeals affirmed. It held that a rational factfinder could conclude that the conduct was public masturbation and therefore grossly indecent under Michigan precedent. The evidence showed overt sexual activity that was open and perceivable: it occurred in a shared prison visiting room, and the monitoring officer could discern the sexual nature of the hand movements in real time. Neither the lack of exposed genitalia nor the presence of clothing between the hand and penis defeated the charge.
The court also concluded that the evidence permitted a finding that LeFlore was a party to the act. Assuming without deciding that his consent was required, his failure to stop the conduct over eight to 10 minutes, his girlfriend’s belief that he consented, and his own description of himself as shocked and excited supported an inference that he willingly participated. Trial counsel was not ineffective for declining to call the searching officer because testimony that no altered clothing or contraband was found would not have changed the outcome; skin-to-skin contact and exposed genitalia were unnecessary to establish gross indecency.
Key Takeaways
- Public masturbation may constitute gross indecency under Michigan law even when the genitalia remain covered.
- Sexual conduct may be sufficiently overt when an observer can perceive its nature from the participants’ movements and surrounding circumstances.
- Failure to call a witness is not ineffective assistance when the proposed testimony would not undermine the evidence establishing the offense.
Why It Matters
The decision applies Michigan’s case-by-case gross-indecency jurisprudence to clothed sexual touching in a prison visiting room. It confirms that courts assess the sexual nature and perceptibility of the conduct in context rather than requiring exposure or direct skin-to-skin contact.
The opinion also leaves unresolved whether consent is always necessary for a person to qualify as “a party to” gross indecency, holding only that the evidence was sufficient to establish LeFlore’s consent in this case.