Opinion
Nos. 119699, 119700.
October 26, 2001.
COA Nos. 227278, 227280.
In lieu of granting leave to appeal, the Court of Appeals holding that defendants' conduct did not occur in a public place as a matter of law within the meaning of the gross indecency statute, MCL 750.338, is vacated. Assuming arguendo that the prosecution has to establish that the act occurred in public as an element of the crime, there was a public place and it remains a question for the factfinder whether the element was established. See People v. Williams, 462 Mich. 861-862 (2000). MCR 7.302(F)(1). The case is remanded to the Court of Appeals to address whether the act which occurred here is grossly indecent within the meaning of MCL 750.338 and direct it to consider if CJI2d 20.31 is consistent with the case law on the question whether masturbation can be grossly indecent. See People v. Lynch, 179 Mich. App. 63 (1989), People v. Trammell, 171 Mich. App. 128, (1988), and People v. Lino, 447 Mich. 567, 578 (1994). Compare People v. Holland, 49 Mich. App. 76 (1973). See generally, Mich. ex rel Wayne Co Prosecutor v. Dizzy Duck, 449 Mich. 353, 365 (1995). Jurisdiction is not retained.
CAVANAGH and KELLY, JJ. We would deny leave to appeal.