Background
Desmond Duane-Mark LeFlore was convicted after a bench trial of gross indecency under MCL 750.338b and sentenced as a fourth habitual offender. The charge arose from a July 2023 visit at the Ionia Correctional Facility, where a corrections officer watching live video saw LeFlore’s girlfriend place her hand inside his pants and move it in a manner the officer understood to be manual sexual stimulation. The conduct continued for approximately eight to 10 minutes in an unpartitioned visiting room where other people were present.
LeFlore’s girlfriend testified that she touched and stroked his penis through an opening in his pocket and believed that he consented. LeFlore testified that cloth remained between her hand and his penis, that he had not asked her to touch him, and that he did not stop her because he did not believe they were doing anything wrong. On appeal, he challenged the sufficiency of the evidence and argued that trial counsel was ineffective for failing to call the officer who strip-searched him after the visit.
The Court’s Holding
The Court of Appeals affirmed. It held that the evidence, viewed in the prosecution’s favor, permitted a rational factfinder to conclude that the conduct was grossly indecent. Michigan precedent establishes that public masturbation constitutes gross indecency, and the court concluded that the absence of genital exposure or direct skin-to-skin contact did not alter that result. The sexual activity was open and perceivable because it occurred in a shared prison visiting room and was readily discernible to the monitoring officer from the live video.
The court also concluded that sufficient evidence showed LeFlore was a party to the act. Without deciding whether consent is required under the statute, it found that the duration of the conduct, his failure to stop it, his girlfriend’s understanding that he consented, and his own testimony supported an inference that he willingly participated.
LeFlore’s ineffective-assistance claim also failed. Testimony from the officer who conducted the post-visit strip search—that he found no contraband or altered clothing—would not have provided a substantial defense because neither exposed genitalia nor skin-to-skin contact was necessary to establish gross indecency on these facts. The omitted testimony therefore would not reasonably have changed the trial’s outcome.
Key Takeaways
- Manual sexual stimulation in a public setting can constitute gross indecency even when clothing separates the participants and no genitalia are exposed.
- Conduct may be “open and perceivable” when observers can readily recognize its sexual nature, even if the precise physical contact is partially concealed.
- Failing to call a witness is not ineffective assistance when the proposed testimony would not supply a substantial defense or reasonably affect the verdict.
Why It Matters
The decision applies Michigan’s fact-specific gross-indecency jurisprudence to clothed sexual touching in a correctional visiting room. It confirms that courts may consider the conduct’s sexual nature, duration, location, visibility, and surrounding circumstances rather than requiring genital exposure or direct contact.
The opinion also illustrates the limits of ineffective-assistance claims based on an uncalled witness: proposed testimony about clothing or a post-incident search is not prejudicial when those facts do not negate the offense as legally defined.