Summary
In Mabry, the Court of Appeals reversed, expressing agreement with Judge BRONSON'S analysis, and reasoning that the offense charged here is distinguished from solicitation because the latter applies to two-party transactions while attempting to procure the commission of an act of gross indecency requires that the proposed sexual activity be between two persons other than the defendant.
Summary of this case from People v. MastenOpinion
Docket No. 48006.
Decided December 3, 1980. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, David H. Sawyer, Prosecuting Attorney, and Carol S. Irons, Chief Appellate Attorney, for the people.
Murphy, Burns McInerney, P.C., for defendant.
Before: R.M. MAHER, P.J., and R.B. BURNS and D.F. WALSH, JJ.
Defendant was convicted by a jury of the crime of attempting to procure an act of gross indecency. MCL 750.338; MSA 28.570. The alleged criminal conduct consisted of approaching a security guard in a rest room at Grand Rapids Junior College and offering to perform certain sexual acts with him. The dispositive issue on appeal is whether defendant can be convicted of attempting to procure an act of gross indecency under the facts of this case. We hold that he cannot.
We are in agreement with Judge BRONSON'S dissent in the recent decision of People v Masten, 96 Mich. App. 127; 292 N.W.2d 171 (1980), in which he construed the term "procure" as encompassing only the acquisition of something on behalf of another and not for oneself. In the instant case, since defendant was attempting to initiate sexual activity between himself and another person, his actions would not constitute procuring or attempting to procure an act of gross indecency.
The conduct of defendant would more properly be classified as an act of solicitation. MCL 750.448; MSA 28.703. We construe the solicitation statute as applying to two-party situations in which one party, through words or conduct, invites another to perform an immoral act. The crime of solicitation carries a lesser penalty and is classified as a misdemeanor, while the crime of attempting to procure an act of gross indecency is classified as a felony and carries a greater penalty. There must be a rational basis for the marked differences in penalties for the violation of separate statutes. People v Hall, 391 Mich. 175; 215 N.W.2d 166 (1974). We find such a basis here. The Legislature, by using the term "procure" in the gross indecency statute, has decided to punish separately three-party transactions. We are not persuaded by the prosecutor's argument that the solicitation statute is distinguishable as applying to conduct of a lesser degree of offensiveness; nor do we find persuasive defendant's argument that the gross indecency statute applies only to public acts.
Accordingly, defendant's conviction for the crime of attempting to procure an act of gross indecency must be reversed. The prosecution failed to show that defendant attempted to facilitate sexual activity between two other individuals.
Since our resolution of this issue completely disposes of this case, we need not discuss defendant's other claims of error.
Reversed.