PEOPLE OF THE CITY OF ROSEVILLE V EDWARD STROSS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE CITY OF ROSEVILLE,
UNPUBLISHED
November 10, 2009
Plaintiff-Appellee,
v
No. 271764
Macomb Circuit Court
LC No. 2005-000694-AR
EDWARD STROSS,
Defendant-Appellant.
ON REMAND
Before: Murphy, P.J., and Gleicher and Stephens, JJ.
PER CURIAM.
A jury convicted defendant Edward Stross of violating the terms of a variance to plaintiff
City of Roseville’s sign ordinance. Roseville averred that a mural painted by defendant on a
building had breached two variance prohibitions: one against depictions of “private parts
(genitalia),” and another forbidding lettering. This Court previously rejected defendant’s
assertion that the genitalia restriction infringed on his First Amendment-protected exercise of
free speech, but found that the lettering ban did amount to “an unconstitutional regulation of
speech, infringing on defendant’s First Amendment protections.” City of Roseville v Stross,
unpublished opinion per curiam of the Court of Appeals, issued February 21, 2008 (Docket No.
271764), slip op at 5. However, our Supreme Court reversed on the ground that defendant had
untimely challenged the constitutionality of the variance, and remanded to us for consideration of
defendant’s remaining appellate contentions. City of Roseville v Stross, 482 Mich 979; 755
NW2d 187 (2008). We again find reversal required.
In a previously unaddressed appellate issue, defendant maintains that we must reverse the
jury’s guilty verdict because we cannot determine on which of two theories it rested. According
to defendant, the instructions permitted the jury to find him guilty either on the basis that he (1)
ignored the variance lettering restriction, a legally cognizable or proper theory, or (2)
incorporated breasts into the mural, a legally unfounded theory of guilt given that breasts plainly
do not constitute “genitalia.” In defendant’s estimation, “[b]ecause it is impossible to tell
whether the jury predicated criminal liability on the lettering or the display of breasts, a legally
inadequate theory, the conviction can not stand.” Defendant’s challenge to the legal support for
his verdict, in light of undisputed underlying facts, involves a legal question that we consider de
novo. People v Martin, 271 Mich App 280, 286; 721 NW2d 815 (2006), aff’d 482 Mich 851
(2008).
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The prosecution charged that defendant’s mural violated his variance to Roseville’s sign
ordinance in two distinct respects. First, the prosecution claimed that defendant painted the word
“LOVE” on the mural, despite that a variance granted by Roseville’s zoning board of appeals
specifically prohibited “lettering.” Second, the prosecution asserted that defendant’s mural
contravened the variance restriction, “No private parts (genitalia) are exposed.” Before trial
commenced, defense counsel requested that the court give the jury a verdict form that
distinguished between the two charged variance violations. Defense counsel pointed out, “I
don’t think that a general finding of guilty is going to help us in other words because it could,
I’m not saying that it would, but it could well lead to further litigation to determine in fact what
... is a violation and what isn’t a violation here.” The prosecution advocated for a simple finding
of guilty or not guilty. The trial court ruled for the prosecution, reasoning, “And I think frankly,
gentlemen, that when these perimeters [sic] were issued by the Council that it was to be as a
whole and not as to one or the other.” At the close of proofs, defense counsel reiterated his
objection to the verdict form. The jury ultimately returned a general verdict of guilt.
This Court’s prior opinion in this case included the following about the genitalia charge:
“We note that the mural did not contain genitalia under the plain meaning of that term. Random
House Webster’s College Dictionary (2001) defines ‘genitalia’ as ‘the organs of reproduction,
esp. the external organs.’ Because breasts are not reproductive organs, they are not properly
considered genitalia.” City of Roseville, supra slip op at 4 n 5. The Court further held that
Roseville’s preclusion of lettering on the mural infringed on defendant’s constitutional rights,
explaining that “[b]ecause the jury was permitted to convict defendant based on the
unconstitutional provision prohibiting lettering, his conviction must be reversed.” Id. at 5.
Although the Supreme Court reversed our holding regarding the unconstitutionality of the
lettering prohibition, the Supreme Court did not criticize or even reference our ruling that the
breasts depicted in the mural did not constitute “genitalia” that would violate the variance terms.
Given the Supreme Court’s unconditional reversal of this Court’s prior decision, it appears
questionable whether the law of the case doctrine applies with respect to this Court’s prior
“genitalia” definition. See Johnson v White, 430 Mich 47, 53; 420 NW2d 87 (1988) (“Where a
case is taken on appeal to a higher appellate court,” “[r]ulings of the intermediate appellate court
. . . remain the law of the case insofar as they are not affected by the opinion of the higher court
reviewing the lower court’s determination.”). But even assuming this Court’s prior “genitalia”
definition does not technically constitute the law of the case, in light of the absence of any
Supreme Court criticism or disparagement of this Court’s “genitalia” definition, and the fact that
neither the Roseville ordinance nor defendant’s variance specifically defines the term “genitalia,”
we readopt as persuasive the definition set forth in Stross, slip op at 4 n 5. See People v Peals,
476 Mich 636, 641; 720 NW2d 196 (2006) (explaining that if an ordinance or statute does not
contain internal definitions, a court may resort to dictionary definitions in attempting to ascertain
plain and ordinary meaning).
Uncontroverted evidence established that defendant depicted breasts in the mural, which
conduct the trial court incorporated as a basis for the jury to find defendant guilty of violating his
variance to Roseville’s sign ordinance. But Roseville may not prosecute defendant for a breastrelated ordinance variance violation because as a matter of law, breasts do not constitute
“genitalia.” Alternatively stated, defendant’s prosecution for violating the variance’s genitalia
proscription did not comport with the law, and thus no legal basis existed on which to prosecute
defendant for the mural’s depiction of breasts, irrespective whether adequate evidence might
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have supported defendant’s conviction on this ground. Michigan has adopted a common-law,
judge-made rule mandating reversal when a jury renders a verdict premised in part on an
improperly submitted theory. “‘[A] general verdict is either all wrong or all right, because it is
an inseparable and inscrutable unit. A single error completely destroys it.’” Sahr v Bierd, 354
Mich 353, 365; 92 NW2d 467 (1958), quoting Sunderland, Verdicts, general and special, 29
Yale L J 253, 259 (1920). This Court most recently reiterated the rule in Tobin v Providence
Hosp, 244 Mich App 626, 645; 624 NW2d 548 (2001). In Tobin, the Court reversed a general
verdict because one theory of medical malpractice liability submitted to the jury lacked evidence
of proximate causation: “Because the jury was not asked to make a distinct determination with
respect to each theory of malpractice alleged by plaintiff, it is impossible to know if the jury
rejected the other theories advanced by plaintiff and rendered judgment based on this improperly
submitted theory.” Id.
Michigan’s appellate courts have also applied the rule of automatic reversal in criminal
cases. In People v Huffman, 315 Mich 134, 136; 23 NW2d 236 (1946), the Supreme Court
framed the “principal question presented” as “whether or not the trial judge erred in receiving a
general verdict of ‘guilty as charged.’” In that case, the information charged the defendant with
two counts: feloniously breaking and entering a store building at night with the intent to commit
larceny, and larceny from the store. Id. at 135-136. The jury’s general verdict did not specify on
which theory it had convicted the defendant, who appealed the conviction. Id. at 136. The
Supreme Court reviewed Michigan and out-of-state case law concerning general verdicts, and
noted that “the evidence justified defendant’s conviction under either or both of the counts in the
information. Id. at 140. Nevertheless, the Supreme Court adhered “to our established rule that it
was error to receive a general verdict of guilty when the two offenses charged were separate,
distinct, and different in character, required substantially different evidence to establish them,
and were punishable by different statutory penalties.” Id.
In People v Grainger, 117 Mich App 740; 324 NW2d 762 (1982), this Court reversed the
defendant’s conviction for carrying a concealed weapon. The charge arose from the defendant’s
attempt to board a commercial aircraft with a gun concealed in his briefcase. The briefcase also
contained a gun permit. Id. at 745-746. The prosecution submitted two theories of guilt to the
jury, “(1) that defendant had an invalid permit, and (2) that defendant had a valid permit but was
carrying the gun in violation of certain license restrictions.” Id. at 754. This Court found that
the first theory should not have been submitted to the jury, and that “[s]ufficient evidence was
adduced to convict defendant under the prosecution’s second theory.” Id. at 754-755.
Nevertheless, this Court reversed the defendant’s conviction:
Where one of two alternative theories of guilt is legally insufficient to
support a conviction, and where it is impossible to tell upon which theory the jury
relied, the defendant is entitled to a reversal of his conviction and a new trial.
Such is the case here. The second theory would support a conviction, the first
would not. We cannot tell upon which theory the jury relied. [Id. at 755.]
Because Michigan law plainly forbids us from upholding a defendant’s conviction
premised on a general verdict that contains a legally erroneous theory of guilt, we must reverse
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defendant’s conviction and remand for a new trial on the appropriate theory of guilt. And
because we must reverse defendant’s conviction, we need not consider his appellate sentencing
challenge.
Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ William B. Murphy
/s/ Elizabeth L. Gleicher
/s/ Cynthia Diane Stephens
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