PEOPLE OF MI V RICHARD BROWER
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
May 18, 2010
Plaintiff-Appellee,
v
No. 286551
Macomb Circuit Court
LC No. 2007-002377-FH
RICHARD BROWER,
Defendant-Appellant.
Before: SHAPIRO, P.J., and JANSEN and BECKERING, JJ.
SHAPIRO, P.J. (concurring).
I concur in the result and much of the analysis in the majority opinion. However, I do not
think that the majority opinion adequately addresses the question whether the encouraged actions
met the statutory requirements of MCL 750.145a. As I read the record, the prosecution did not
dispute that the body in the sole nude photo was not that of defendant’s daughter. Thus, the jury
could not properly have convicted defendant of having enticed his daughter into committing an
immoral act on the basis of that photo, even though the photo did properly serve as the basis for
the creating and manufacturing conviction under MCL 750.145(c)(2).
Of the thirteen photos that were of the defendant’s daughter, none depicted her in a
manner that would constitute “erotic nudity” as defined in MCL 750.145c. The photos are not
clearly described in the testimony, although it seems that the two photos on which the prosecutor
relied showed the defendant’s daughter wearing only panties and covering her breast area with a
stuffed animal. While photos of this type of a 12-year-old girl are disturbing and improper, I
question whether in the context of this case at least they constitute “an immoral act” or “an act of
gross indecency” as the statute requires. In addition, the phrases “immoral act” and “act of gross
indecency” do not provide for an objective standard for the jury to apply. Although there is no
challenge to the constitutionality of the statute as applied in this case, the question of sufficiency
has been raised. It is significant that the jury sought guidance on this question by sending a note
during deliberations asking if the trial court could provide clarification as to what constituted an
immoral act or act of gross indecency.
Nevertheless, I concur in the affirmance because, in response to the jury’s request for
further instructions, the defense did not seek a dismissal of any of the charges and stipulated that
-1-
an appropriate response to the jury was that they should “use your common sense.” Apparently
the jurors’ common sense informed them that participation in the photos constituted an immoral
act or an act of gross indecency.
/s/ Douglas B. Shapiro
-2-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.