Background
Desmond Duane-Mark LeFlore was convicted after a bench trial of gross indecency under MCL 750.338b and sentenced as a fourth habitual offender. The charge arose from a July 2023 visit with his girlfriend, Tia Hernandez, in the visiting room at Ionia Correctional Facility.
An officer monitoring live video testified that Hernandez had her hand inside LeFlore’s pants and that the front of his pants moved up and down for eight to ten minutes. Hernandez testified that she stroked his penis and believed she had his consent. LeFlore testified that the touching occurred through cloth, that he did not ask for it, and that he did not stop it because he did not think they were doing anything wrong. Other people were present, and the couple was not in a private or partitioned area.
On appeal, LeFlore argued that the evidence was constitutionally insufficient because the conduct was not sufficiently public, overt, or visible and because he was not a party to Hernandez’s act. He also claimed that counsel was ineffective for failing to call the officer who strip-searched him afterward and found no altered clothing or contraband.
The Court’s Holding
The Court of Appeals affirmed. It held that a rational factfinder could conclude beyond a reasonable doubt that the conduct constituted gross indecency. Although Michigan’s statutes do not define that term comprehensively, controlling caselaw establishes that public masturbation is grossly indecent and that sexual conduct must be evaluated in its factual context. The evidence showed that Hernandez manually stimulated LeFlore’s genitals in a prison visiting room where others were present and that the conduct was perceivable on live video.
The court rejected the argument that the absence of exposed genitalia or direct skin-to-skin contact defeated the charge. It also declined to apply the nonbinding “ultimate sex act” formulation advanced in a fractured Michigan Supreme Court opinion. Assuming without deciding that consent was necessary to make LeFlore “a party to” the act, the court found sufficient evidence of consent from the duration of the touching, his failure to stop Hernandez, her belief that he consented, and his own testimony that he experienced excitement and regarded himself as doing nothing wrong.
The ineffective-assistance claim also failed. Testimony that a post-visit search revealed no altered clothing or contraband would not have supplied a substantial defense because neither exposed genitalia nor skin-to-skin contact was required. The proposed testimony therefore would not have created a reasonable probability of a different outcome.
Key Takeaways
- Manual stimulation through clothing may constitute gross indecency when it occurs openly in a place where others are present and is perceivable to an observer.
- The court treated public masturbation as established grossly indecent conduct and declined to require proof of an “ultimate sex act.”
- Without deciding whether consent is an element of being “a party to” gross indecency, the court held that the evidence permitted an inference that LeFlore willingly participated.
- Counsel was not ineffective for omitting testimony about the absence of altered clothing because that fact would not have undermined the legally sufficient theory of guilt.
Why It Matters
The decision illustrates Michigan courts’ case-by-case approach to gross indecency, a crime whose statutory language remains undefined and whose governing caselaw does not provide a single comprehensive test. The surrounding circumstances—including location, visibility, duration, and the nature of the activity—remain central.
The opinion also confirms that sexual stimulation need not involve exposure or direct skin contact to qualify as public masturbation for purposes of MCL 750.338b. Because the decision is unpublished, however, it is not binding precedent under Michigan court rules.