PEOPLE OF MI V CRAIG H GONSER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
July 21, 2009
Plaintiff-Appellant,
v
No. 289971
Macomb Circuit Court
LC No. 2008-004833-FH
CRAIG H. GONSER,
Defendant-Appellee.
Before: Davis, P.J., and Murphy and Fort Hood, JJ.
PER CURIAM.
The prosecutor appeals by leave granted the trial court’s pretrial ruling regarding the
manner in which the court planned to instruct the jury on the elements of gross indecency with a
female, MCL 750.338b, and attempted gross indecency with a female, MCL 750.338b and MCL
750.92. The defendant was also charged with indecent exposure, MCL 750.335a. We reverse
and remand for further proceedings.
Tina Gonser was the sole witness at defendant’s preliminary examination. At that time,
defendant was charged with indecent exposure, MCL 750.335a, aggravated indecent exposure,
MCL 750.335a(2)(b), and distributing sexually explicit material to a minor, MCL 722.675.
Gonser testified that she met defendant in 1999, married him in June 2006, and was in the
process of divorcing him. They had two children during their relationship, a boy and a girl. The
incident at issue occurred in March 2004 and concerned their daughter, who was just under two
years of age at the time (20 months). Gonser testified that she lived with defendant in the city of
Warren in March 2004. Defendant’s mother resided in Sterling Heights, but there were also
bedrooms in her house for the children and defendant. After getting off early from work, Gonser
stopped at the home of defendant’s mother, looking for defendant and their daughter. Because
the side door was open, Gonser entered the house and went to defendant’s bedroom. She saw
defendant seated at a computer desk. Gonser also noticed that their daughter was standing next
to defendant, holding onto a chair and looking right at him. Gonser observed a picture of a
naked woman on the computer screen and saw personal lubrication on the desk. When defendant
stood up, Gonser saw his exposed penis. His underwear and pants were down at his ankles. She
asked defendant what he was doing, and he told her, “I’m playing with it, do you mind?”
Defendant then put his clothes back on.
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Defendant was bound over for trial on each of the three initial charges at the conclusion
of Gonser’s testimony. Subsequently, the trial court granted defendant’s motion to dismiss the
charges of aggravated indecent exposure and distributing sexually explicit materials. The
prosecution then moved to amend the information to add the gross indecency and attempted
gross indecency charges pursuant to MCL 750.338b and People v Bono (On Remand), 249 Mich
App 115; 641 NW2d 278 (2002). The trial court granted the motion, but questioned whether the
prosecution would be required to prove that defendant engaged in the activity in front of the
minor in order to enhance his sexual gratification. The parties were advised to research that
issue and be prepared to present any proposed special jury instructions.
On the day scheduled for a jury trial, the trial court indicated its intent to utilize a
modified jury instruction that would require proof that defendant involved or attempted to
involve his daughter in defendant’s sexual activity for a sexual purpose. The trial court
expressed that some modification of the standard jury instruction was necessary to preclude the
potential for criminal liability where a minor enters a bedroom, by accident, during consensual
sex between a husband and a wife. The court also determined that there should be no criminal
liability if “it just so happened that the minor was present and it had no influence or bearing on
his activity.” Pursuant to the trial court’s order on the matter, CJI2d 20.31, which is the standard
jury instruction on gross indecency, would be modified to instruct the jury as follows:
(1) The Defendant is charged with the crime of committing an act of gross
indecency. To prove this charge, the prosecutor must prove each of the following
elements beyond a reasonable doubt:
(2) First, that the defendant engaged in a sexual act that involved the
following:
a. masturbation in the presence of a minor, whether in a public place or
private place.
b. and that the Defendant involved or attempted to involve the minor in
his sexual activity for a sexual purpose.[1]
The trial court’s order also stayed proceedings pending an appeal by the prosecutor. This
Court thereafter granted the prosecutor’s interlocutory application for leave to appeal. People v
Gonser, unpublished order of the Court of Appeals, entered February 27, 2009 (Docket No.
289971).
Issues regarding jury instructions that entail questions of law are reviewed de novo on
appeal. People v Gillis, 474 Mich 105, 113; 712 NW2d 419 (2006). The proper meaning of a
criminal statute is also reviewed de novo by an appellate court. Id.
1
This instruction is consistent with CJI2d 20.31, except that the standard instruction does not
include the language in (2)b of the court’s modified instruction.
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We first note that, in general terms, it was not improper for the trial court to question the
appropriateness of and to modify CJI2d 20.31, where the standard instructions do not have the
official sanction of our Supreme Court and, consequently, courts need not adhere to the language
in the standard instructions. People v Petrella, 424 Mich 221, 277; 380 NW2d 11 (1985); Bono,
supra at 123 n 6; People v Stephan, 241 Mich App 482, 495; 616 NW2d 188 (2000) (“Where a
Criminal Jury Instruction does not accurately state the law, it will be disavowed by the courts.”).
“[T]rial judges are encouraged to examine them carefully before using them, in order to ensure
their accuracy and appropriateness to the case at hand.” Petrella, supra at 277.
The gross indecency statute, MCL 750.338b, is part of Chapter XLVIII of the Penal
Code, MCL 750.335 et seq., which proscribes a number of indecent and immoral acts. Three
provisions address gross indecency. MCL 750.338 applies to “[a]ny male person who, in public
or in private, commits or is a party to the commission of or procures or attempts to procure the
commission by any male person of any act of gross indecency with another male person. . . .”
MCL 750.338a applies to “[a]ny female person who, in public or in private, commits or is a party
to the commission of, or any person who procures or attempts to procure the commission by any
female person of any act of gross indecency with another female person . . . .” Finally, MCL
750.338b, which is the basis for the gross indecency charges brought here, provides:
Any male person who, in public or in private, commits or is a party to the
commission of any act of gross indecency with a female person shall be guilty of
a felony, punishable as provided in this section. . . . [Emphasis added.]
In Bono, supra at 121, this Court, citing People v Warren, 449 Mich 341, 345; 535
NW2d 173 (1995), observed that, when attempting to determine what constitutes gross
indecency under the statutes, it is prudent to decide only the case before the court and not attempt
to catalog what is permitted and prohibited. "[T]he circumstances are relevant to a determination
whether an act is grossly indecent." Bono, supra at 121. As explained in People v Jones, 222
Mich App 595, 602; 563 NW2d 719 (1997):
[W]e decline to craft judicially an all-encompassing definition of what is,
or what is not, grossly indecent. Until the Legislature gives the courts of this state
a workable definition of gross indecency, malleable enough to protect, without
unlawfully infringing on, the rights of the public, we must decide case by case, as
the Supreme Court did in [People v Lino, 447 Mich 567; 527 NW2d 434 (1994)],
whether an act is grossly indecent. It is with this in mind that we turn to the case
at bar.
In Lino, supra at 578, our Supreme Court addressed MCL 750.338, and it held, in part,
that the defendant's "alleged conduct in orchestrating the conduct of the minors, to facilitate [the
codefendant's] sexual arousal and masturbation in the presence of the minors would constitute
the offense of procuring, or attempting to procure, an act of gross indecency even though it was
not committed in a public place." The Court then stated that "[p]rocuring or attempting to
procure an act of gross indecency with a person under the age of consent can support a
conviction under MCL 750.338[.]" Id.
On the basis of Lino, we can confidently conclude that, in the context of the situation in
the case at bar, the crime of gross indecency was committed if it was proven that defendant
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masturbated in the presence of his daughter and if defendant orchestrated her involvement in the
episode, even if it was just making sure that she was present, in order to facilitate his sexual
arousal and his act of masturbation. This would be consistent with the trial court's modified jury
instruction. The question is, however, whether the crime of gross indecency is committed under
somewhat less egregious circumstances.
Lino involved, in one of the consolidated cases, teenage minors who actively engaged in
physically and verbally abusing an adult, but not sexually, while the adult masturbated, which
abuse facilitated the adult's sexual arousal and act of masturbation. Here, we also have a minor;
however, she was only about two years old at the time and clearly not capable of willingly
facilitating defendant's sexual act, nor capable of understanding what was transpiring and why it
was taking place. Yet, she was of sufficient age to observe and recognize that, if the allegations
are true, her father was using his hands to touch himself between his legs and in a certain
manner, with his pants being around his ankles; a two-year-old child has some familiarity with
the human body. The case law cited above demands that we consider the totality of the
circumstances in each particular case when determining whether an act of gross indecency has
been committed. In doing so, and in contemplating a proper jury instruction to accompany our
conclusion, we hold that if the prosecution proves beyond a reasonable doubt that an adult man
masturbated or continued to masturbate in the presence of a two-year-old female child, or a
female child of approximately that age, such as defendant's daughter, knowing that the child was
present and knowing that she could observe the act of masturbation, he has committed an act of
gross indecency with a female in violation of MCL 750.338b.2 Under these circumstances, there
is no need for the prosecutor to additionally prove that a defendant involved the child for the
purpose of facilitating sexual arousal, as may occur with a pedophile. Simply stated, it is grossly
indecent for a grown man to knowingly masturbate in front of a two-year-old girl, whether she is
his child or another person’s child, regardless of whether the child’s presence was used to
facilitate sexual arousal. Our instruction goes beyond CJI2d 20.31, adding a “knowledge”
element under the charges brought in this case and given the circumstances. See People v
Abramski, 257 Mich App 71, 73; 665 NW2d 501 (2003) (a knowledge element of an offense
may be necessary simply to prevent innocent acts from constituting crimes). The trial court is to
instruct the jury in accordance with this ruling.
We reverse and remand for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Alton T. Davis
/s/ William B. Murphy
/s/ Karen M. Fort Hood
2
We emphasize that our ruling is case specific. If a two-day-old female child were involved, we
very well may not have concluded that a statutory violation would occur based simply on the
adult male being knowledgeable of the child's presence and opportunity to view the act of
masturbation. If, however, under such a scenario, there was additional proof that the act was
committed in order to facilitate sexual arousal, a statutory violation may well have occurred.
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