“A person shall not knowingly make any open or indecent exposure of his or her person or of the person of another.”14 MCL 750.335a(1).
M Crim JI 20.33, Indecent Exposure.
A person who violates the prohibition against indecent exposure set forth in MCL 750.335a(1) is guilty of a crime, as follows:
“(a) Except as provided in subdivision (b) or (c), the person is guilty of a misdemeanor punishable by imprisonment for not more than 1 year, or a fine of not more than $1,000.00, or both.
(b) If the person was fondling his or her genitals, pubic area, buttocks, or, if the person is female, breasts, while violating subsection (1), the person is guilty of a misdemeanor punishable by imprisonment for not more than 2 years or a fine of not more than $2,000.00, or both.
(c) If the person was at the time of the violation a sexually delinquent person, the violation is punishable by imprisonment for an indeterminate term, the minimum of which is 1 day and the maximum of which is life.”15 MCL 750.335a(2).
A defendant convicted of indecent exposure under MCL 750.335a(2)(a)-(b) is guilty of a misdemeanor and must pay a crime victim assessment of $75. See MCL 780.905(1)(b).
A defendant convicted of indecent exposure by a sexually delinquent person is guilty of a felony and must pay a crime victim assessment of $130. See MCL 780.905(1)(a).
3.Minimum State Cost and Other Costs
If the court orders payment of any combination of a fine, costs, or applicable assessments for a conviction of indecent exposure, the court must impose the minimum state cost of not less than $50. See MCL 769.1j(1)(b); MCL 769.1k(1)(a).
If the court orders payment of any combination of a fine, costs, or applicable assessments for a conviction of indecent exposure by a sexually delinquent person, the court must impose the minimum state cost of not less than $68. See MCL 769.1j(1)(a); MCL 769.1k(1)(a).
MCL 750.335a(2)(b) is a tier I offense under the Sex Offenders Registration Act (SORA) when the victim is a minor. MCL 28.722(r)(ii). If the defendant meets the domicile, residence, employment, or student status, registration is required. See MCL 28.723.
For more information on the SORA’s registration requirements, see Chapter 9.
E.Sentencing a Sexually Delinquent Person
The “1 day to life” sentence stated in MCL 750.335a(2)(c) is not an exclusive sentence; the “1 day to life” sentence has never been required by MCL 750.335a. People v Arnold (Arnold I), 502 Mich 438, 444 (2018). The Arnold I Court explained that “1 day to life” is a nonmodifiable sentencing option for sexual delinquents. Arnold I, 502 Mich at 469, 471.16 That is, an individual convicted of violating MCL 750.335a as a sexually delinquent person may be sentenced to 1 day to life under MCL 750.335a(2)(c) or he or she may be sentenced according to the advisory sentencing guidelines under MCL 777.16q. The Court of Appeals in People v Kelly, 186 Mich App 524 (1990), “correctly construed the ‘1 day to life’ alternate sentence as an option a sentencing judge could draw upon, alongside and not to the exclusion of other available options.” Arnold I, 502 Mich at 469.
On remand in Arnold, the Court of Appeals held that “MCL 750.335a and MCL 777.16q [the statutory provisions in the Penal Code and the Code of Criminal Procedure, respectively] provide[] multiple, but exclusive, sentencing options” for a defendant convicted of indecent exposure by a sexually delinquent person “premised on the severity of the behavior and the particular characteristics of the offender[.]” People v Arnold (On Remand) (Arnold II), 328 Mich App 592, 610 (2019). MCL 750.335a and MCL 777.16q “must be read in pari materia . . . and the language of the relevant statutes counsel that a trial court has the option to sentence a defendant to ‘1 day to life’ under MCL 750.335a(2)(c) or to a term consistent with the advisory sentencing guidelines.”17 Arnold II, 328 Mich App at 612; see also Kelly, 186 Mich App at 524; People v Smith, 423 Mich 427 (1985).
The conduct prohibited under the indecent exposure statute is not precisely defined. When a word’s meaning is not defined in a statute, a court may consult a dictionary to determine the plain and ordinary meaning of the term. People v Hill, 269 Mich App 505, 518 n 6 (2006). In People v Vronko, 228 Mich App 649, 653-654 (1998), the Court of Appeals defined several terms appearing in the indecent exposure statute:
“With respect to the common uses of the words contained in the statute, Webster’s New Collegiate Dictionary (1977) defines ‘open,’ in part, as being ‘exposed to general view or knowledge,’ ‘having no protective covering,’ and ‘to disclose or expose to view.’ Likewise, the word ‘exposure’ is defined as meaning a ‘disclosure to view’ especially of ‘a weakness or something shameful or criminal.’ Id. ‘Indecent’ is defined as ‘grossly unseemly or offensive to manners or morals.’ Id. Finally, ‘indecent exposure’ is defined as being an ‘intentional exposure of part of one’s body (as the genitals) in a place where such exposure is likely to be an offense against the generally accepted standards of decency in a community.’”
2.Statute Is Not Unconstitutionally Vague
The indecent exposure statute was not unconstitutionally vague as applied to the defendant because “[g]iven the[] definitions and judicial constructions [of the terms in MCL 750.335a], the language of the indecent exposure statute (1) provided fair notice to defendant that [his conduct was] proscribed by the statute, and (2) did not confer on the trier of fact unstructured and unlimited discretion to determine whether an offense [had] been committed in the context of the charged conduct.” People v Vronko, 228 Mich App 649, 654 (1998).
3.Consent of Audience Is No Defense
On-stage acts of masturbation in front of a consenting audience are actionable under the indecent exposure statute. People v Wilson, 95 Mich App 440, 441-443 (1980). “A prosecution for indecent exposure is not beyond the scope of MCL 750.335a simply because the charged conduct is performed before a theater audience which is comprised primarily or even totally of consenting adults.” Wilson, 95 Mich App at 443.
4.Person Exposed Cannot Also Be Person Offended
To support a prosecution for open or indecent exposure, the person offended by the exposure must be someone other than the person who is exposed. People v Williams, 256 Mich App 576, 577, 583 (2003) (against his 8-year-old niece’s wishes, the defendant sat in the bathroom while she was bathing and proceeded to draw a picture of his niece that included depictions of her vagina and breasts). “[T]he definition of ‘open exposure’ . . . adopted [in People v Vronko, 228 Mich App 649, 657 (1998),] supports the conclusion that the Legislature’s aim was to punish exposures that would be offensive to viewers, actual or potential, and not to the person exposed.”
5.Televised Indecent Act Actionable
In People v Huffman, 266 Mich App 354, 357 (2005), the defendant produced a television show with a three-minute segment showing a penis and testicles marked with facial features. A voice-over provided “purportedly humorous commentary as if on behalf of the character.” Id. at 357. On appeal from his conviction of indecent exposure, the defendant argued that MCL 750.335a cannot be properly construed to apply to televised images. Huffman, 266 Mich App at 358-359. The Court of Appeals upheld the conviction, concluding that the purposes of the indecent exposure statute are “fulfilled by focusing on the impact that offensive conduct might have on persons subject to an exposure.” Id. at 360. The Court stated that although “a televised exposure is qualitatively different than a physical exposure,” the televised exposure might be more offensive or threatening because it could be unexpected, bigger than life, and continue longer than would have been allowed in a public place. Id. at 360-361.
6.Public Exposure Not Necessary
An open or indecent exposure need not necessarily occur in a public place to be actionable. People v Neal, 266 Mich App 654, 663-664 (2005). In Neal, 266 Mich App at 655, the defendant exposed his erect penis to a minor female guest in his home and argued that in order to be convicted of indecent exposure under MCL 750.335a, the exposure must have taken place in a public place. However, MCL 750.335a prohibits open or indecent exposures that are knowingly made, and does not require that indecent exposures occur in a public place. Neal, 266 Mich App at 656. Accordingly, the focus should not be on the location of an indecent exposure but rather on “the act of intentionally exposing oneself to others who would be expected to be shocked by the display.” Id. at 658.
“Aggravated indecent exposure and indecent exposure are the ‘same offense’ for purposes of double jeopardy.” People v Franklin, 298 Mich App 539, 547 (2012). “The offense of indecent exposure does not contain any elements that are distinct from the offense of aggravated indecent exposure.” Id. “‘[W]here one statute incorporates most of the elements of a base statute and adds an aggravating conduct element with an increased penalty compared to the base statute, it is evidence that the Legislature did not intend punishment under both statutes.’” Id., quoting People v McKinley, 168 Mich App 496, 504 (1988) (alteration in original). “Therefore, because the Legislature has not expressed a clear intent to permit multiple punishments for the same conduct, [a] defendant cannot be convicted of both offenses.” Franklin, 298 Mich App at 547.
“[S]eparate jury trials under MCL 767.61a are discretionary, not mandatory.” People v Breidenbach, 489 Mich 1, 4 (2011), overruling in part People v Helzer, 404 Mich 410 (1978).18 Whether separate juries are necessary should be determined on a case-by-case basis according to the provisions of MCR 6.120(B) (joinder and severance of related charges). Breidenbach, 489 Mich at 4. A trial court may empanel separate juries if, in its discretion, the trial court “determine[s] that bifurcation is necessary in order to protect a defendant’s rights or ensure a fair determination of guilt or innocence[.]” Id.; MCR 6.120(B).
See People v Campbell, 316 Mich App 279, 294, 297 (2016) (holding that the trial court did not abuse its discretion or deny the defendant his due process right to a fair trial when it refused to bifurcate the proceedings or hold separate trials to determine whether the defendant committed indecent exposure as a sexually delinquent person), overruled on other grounds by People v Arnold (Arnold I), 502 Mich 438, 444 (2018).19
14.Breastfeeding or expressing breast milk, regardless whether the woman’s areola or nipple is visible, does not constitute indecent or obscene conduct. MCL 750.335a(3).
15. “[S]exual delinquency [under MCL 750.335a(2)(c)] is not an actual element of [indecent exposure]. Rather, a finding of sexual delinquency merely allows for an enhancement of the sentence for [an] indecent exposure offense.” People v Franklin, 298 Mich App 539, 547 (2012).
16.See MCL 767.61a, which authorizes the imposition of an optional alternate sentence of 1 day to life when a predicate offense is committed by a sexually delinquent person. Arnold I, 502 Mich at 465, 466.
17. “[T]he Legislature clearly intended to include indecent exposure by a sexually delinquent person as an offense within both the Penal Code and the Code of Criminal Procedure. The intent of the Legislature to provide alternative sentencing options for individuals convicted of this offense obviates the existence of any ambiguity, rendering the rule of lenity inapplicable.” Arnold II, 328 Mich App at 613.
18.Breidenbach, 489 Mich at 4, held that “the Helzer Court erred when it created a compulsory rule” requiring that separate juries determine a defendant’s guilt or innocence of a principal sex offense and the question of the defendant’s sexual delinquency. See Helzer, 404 Mich at 419 n 13, 454.
19.For more information on the precedential value of an opinion with negative subsequent history, see our note.