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 with his girlfriend, Tia Hernandez, in the Ionia Correctional Facility’s visiting room. An officer monitoring live video saw Hernandez’s hand inside LeFlore’s pants and the front of his pants moving up and down for eight to 10 minutes. Other people were present, and the couple was not in a private or partitioned area.
Hernandez testified that she reached through a hole in LeFlore’s pocket and stroked his penis, and that she believed 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 Hernandez publicly masturbated LeFlore and that the conduct was sexual, open, and perceivable. Michigan precedent establishes that public masturbation is grossly indecent, and neither the presence of clothing nor the absence of exposed genitalia prevented the conduct from qualifying under MCL 750.338b.
The court also concluded that sufficient evidence showed LeFlore was “a party to” the act. Assuming without deciding that consent was required, Hernandez believed he consented, he did not try to stop her, and the conduct continued for eight to 10 minutes. His own testimony supported an inference that he willingly participated. The ineffective-assistance claim failed because testimony that a post-visit search revealed no altered clothing or contraband would not have changed the result; direct skin-to-skin contact and exposed genitalia were unnecessary to establish gross indecency.
Key Takeaways
- Public manual stimulation of another person’s genitals may constitute gross indecency even when clothing separates the hand and genitals.
- Conduct may be sufficiently open and perceivable when it occurs in a shared prison visiting room and is discernible through live video monitoring.
- A defendant’s failure to stop prolonged sexual touching, together with the surrounding circumstances, can support an inference that the defendant was a willing party to the act.
Why It Matters
The unpublished decision applies Michigan’s case-by-case gross-indecency jurisprudence to clothed sexual touching in a public institutional setting. It confirms that courts need not find genital exposure or direct skin contact when the evidence otherwise establishes public masturbation that observers could perceive.
The opinion also illustrates the limits of an ineffective-assistance claim based on an uncalled witness: omitted testimony is not prejudicial when it addresses facts that are legally unnecessary to the conviction.