Background
Desmond Duane-Mark LeFlore was convicted after a bench trial of gross indecency as a fourth habitual offender. The charge arose from a July 2023 visit at the Ionia Correctional Facility, where a monitoring officer watched 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 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 clothing and believed she had his consent. LeFlore testified that he had not asked her to touch him but did not stop her because he did not think they were doing anything wrong. On appeal, he challenged the sufficiency of the evidence and argued that 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, holding that the evidence permitted a rational factfinder to conclude beyond a reasonable doubt that LeFlore committed gross indecency under MCL 750.338b. Although Michigan’s gross-indecency statutes contain no statutory definition of the term, controlling caselaw establishes that public masturbation is grossly indecent and that sexual activity must be assessed in its factual context. The evidence showed overt, perceivable sexual conduct in a public prison visiting room, even though LeFlore’s penis was covered and not exposed.
The court also held that the evidence supported finding LeFlore was “a party to” the act. Assuming without deciding that his consent was required, his failure to stop the conduct over an extended period, his girlfriend’s belief that he consented, and his own testimony that he experienced “shock and excitement” supported an inference that he willingly participated.
Finally, counsel was not ineffective for failing to call the officer who performed the post-visit strip search. Testimony that the search revealed no altered clothing or contraband would not have affected the result because direct skin-to-skin contact, genital exposure, and altered clothing were unnecessary to establish gross indecency on the facts presented.
Key Takeaways
- Public manual stimulation of another person’s genitals may constitute gross indecency even when it occurs through clothing and the genitals are not exposed.
- Whether conduct is overt and perceivable depends on the full factual setting, including the location, presence of others, and visible movements indicating sexual activity.
- An ineffective-assistance claim based on an uncalled witness fails when the proposed testimony would not undermine the evidence establishing the offense.
Why It Matters
The decision applies Michigan’s fractured gross-indecency jurisprudence on a case-by-case basis and confirms that the rejected “common sense of society” and nonbinding “ultimate sex act” standards do not control. For public sexual conduct, courts may instead rely on precedent identifying public masturbation as grossly indecent and on whether the conduct was sexual, overt, and perceivable in context.
The opinion also shows that participation may be inferred from circumstantial evidence such as acquiescence, duration, and the defendant’s reaction, though the panel expressly did not decide whether consent is always required to establish that a person was “a party to” gross indecency.