People v. Roberts

• Decision Date: 10 May 2011
• Docket Number: Docket No. 294212.
• Parties: PEOPLE v. ROBERTS.
• Court: Court of Appeal of Michigan — District of US

292 Mich.App. 492

808 N.W.2d 290

PEOPLE

v.ROBERTS.

Docket No. 294212.

Court of Appeals of Michigan.

Submitted Jan. 11, 2011, at Grand Rapids.Decided May 10, 2011, at 9:00 a.m.

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Tony Tague, Prosecuting Attorney, and Charles F. Justian, Chief Appellate Attorney, for the people.

Scott A. Grabel, for defendant.

Before: SAWYER, P.J., and WHITBECK and WILDER, JJ.

PER CURIAM.

Defendant appeals as of right his convictions by a jury of three counts of child sexually abusive activity, MCL 750.145c(2). Defendant was sentenced as an habitual offender, fourth offense, MCL 769.12, to 7 to 22 years' imprisonment for each of the three convictions. We affirm.

I

Defendant advertised in a newspaper for models. The 17–year–old victim responded to the advertisement, and she and her father met with defendant at his gymnasium. Defendant requested that the victim's parents sign a release stating, “I understand my daughter is under ... 18 years of age and that my daughter will [be] performing nudity in [an] R- and X-rated capacity.” The release, which the parents signed, also provided, “I also understand that [my daughter] has full permission to make her own decisions and will have our full support.” However, defendant advised the victim's parents that no X-rated photographs would be taken of her until she was 18 years old and that any photographs taken beforehand could not be distributed. The victim was “anxious to start the process as quick as possible” so that she could start making money.

Defendant prohibited the victim's parents from attending the photography session scheduled for the day after they signed the release. Rather than photographing her at the gymnasium or the beach, as was the victim's initial understanding, defendant drove her to see his remodeled studio and then took her to his nearby home.

At defendant's home, defendant showed the victim a pornographic magazine and indicated to her that, when nude photographs are taken, “you have to have this kind of attitude.” Defendant offered the victim alcohol, but she declined. Defendant subsequently began taking photographs of her—first clothed and then unclothed. The victim testified that she allowed the unclothed pictures because defendant told her that she could earn approximately $18,000 by the time she was 18 years old.

Later in the photography session, defendant “pulled down his pants,” “pulled out his penis,” and “forced it” into her mouth. Defendant said “this will help you relax and get over your nervousness.” Without informing the victim, defendant recorded this sexual act using the video feature on his cellular telephone. The victim testified that she did not want to perform this act, but she did it because she “was scared” and thought it was going to help her modeling career.

The victim testified, “Then he takes the rest of his clothes off and put me on top of him and he makes me do 69.” Next, the victim testified that defendant “wanted to do doggy style.” Again, without informing the victim, defendant recorded these acts using the video feature on his cellular telephone. Defendant took additional photographs afterward, and the victim explained that she did not run away because she was scared of defendant, who had told her “he was a black belt,” and she was afraid he would not give her a ride home. Although defendant warned the victim not to tell her family what happened, the victim told her mother, who called the police.

II

A

Defendant argues that the statute under which he was convicted is unconstitutionally void for vagueness. He first argues that, in contravention of federal and state principles of substantive due process, MCL 750.145c does not adequately inform the public of the conduct proscribed. Specifically, defendant avers that MCL 750.145c, which provides a defendant with an affirmative defense as long as the defendant proves by a preponderance of the evidence that the child was emancipated by operation of law, is fatally defective. Defendant also argues that MCL 750.145c is overbroad because it infringes on the fundamental right of consenting individuals to engage in recreational or expressive sexual intercourse. Defendant argues that MCL 750.145c cannot survive strict scrutiny because it is a total ban on capturing, by way of video or other media, consensual and otherwise legal sexual acts involving individuals who have reached the age of consent. “The constitutionality of a statute is a question of law, reviewed de novo on appeal.” In re McEvoy, 267 Mich.App. 55, 68, 704 N.W.2d 78 (2005).

“The ‘void for vagueness' doctrine is derived from the constitutional guarantee that the state may not deprive a person of life, liberty, or property, without due process of law. U.S. Const., Am. XIV; Const. 1963, art 1, § 17.” State Treasurer v. Wilson (On Remand), 150 Mich.App. 78, 80, 388 N.W.2d 312 (1986). This Court indicated in People v. Heim, 206 Mich.App. 439, 441, 522 N.W.2d 675 (1994):

A statute may be challenged for vagueness on three grounds: (1) it is overbroad and impinges on First Amendment freedoms; (2) it does not provide fair notice of the conduct proscribed; or (3) it is so indefinite that it confers unstructured and unlimited discretion on the trier of fact to determine whether an offense has been committed.

As stated by the Court in People v. Brian Hill, 269 Mich.App. 505, 524–525, 715 N.W.2d 301 (2006):

In testing a statute challenged as unconstitutionally vague, the entire text of the statute should be examined and the words of the statute should be given their ordinary meanings. Judicial constructions of the statute should also be considered. In general, a criminal defendant may not defend on the basis that a statute is unconstitutionally vague where the defendant's conduct is fairly within the constitutional scope of the statute. Statutes are presumed to be constitutional and are so construed unless their unconstitutionality is clearly and readily apparent. [Citations omitted.]

To afford proper notice of the conduct proscribed, a statute must give a person of ordinary intelligence a reasonable opportunity to know what is prohibited. People v. Sands, 261 Mich.App. 158, 161, 680 N.W.2d 500 (2004).

MCL 750.145c(2) provides:

A person who persuades, induces, entices, coerces, causes, or knowingly allows a child to engage in a child sexually abusive activity for the purpose of producing any child sexually abusive material, or a person who arranges for, produces, makes, or finances, or a person who attempts or prepares or conspires to arrange for, produce, make, or finance any child sexually abusive activity or child sexually abusive material is guilty of a felony ... if that person knows, has reason to know, or should reasonably be expected to know that the child is a child or that the child sexually abusive material includes a child or that the depiction constituting the child sexually abusive material appears to include a child, or that person has not taken reasonable precautions to determine the age of the child.

MCL 750.145c(1)(m) defines “child sexually abusive material” as follows:

“Child sexually abusive material” means any depiction, whether made or produced by electronic, mechanical, or other means, including a developed or undeveloped photograph, picture, film, slide, video, electronic visual image, computer diskette, computer or computer-generated image, or picture, or sound recording which is of a child or appears to include a child engaging in a listed sexual act....

A “child” is “a person who is less than 18 years of age, subject to the affirmative defense created in [MCL 750.145c(6) ] regarding persons emancipated by operation of law.” MCL 750.145c(1)(b). MCL 750.145c(6) provides: “It is an affirmative defense to a prosecution under this section that the alleged child is a person who is emancipated by operation of law under section 4(2) of 1968 PA 293, MCL 722.4, as proven by a preponderance of the evidence.” According to MCL 722.4(2), emancipation by operation of law occurs under any of the following circumstances:

(a) When a minor is validly married.

(b) When a person reaches the age of 18 years.

(c) During the period when the minor is on active duty with the armed forces of the United States.

(d) For the purposes of consenting to routine, nonsurgical medical care or emergency medical treatment to a minor, when the minor is in the custody of a law enforcement agency and the minor's parent or guardian cannot be promptly located. The minor or the minor's parent shall remain responsible for the cost of any medical care or treatment rendered pursuant to this subdivision. An emancipation pursuant to this subdivision shall end upon the termination of medical care or treatment or upon the minor's release from custody, whichever occurs first.

(e) For the purposes of consenting to his or her own preventive health care or medical care including surgery, dental care, or mental health care, except vasectomies or any procedure related to reproduction, during the period when the minor is a prisoner committed to the jurisdiction of the department of corrections and is housed in a state correctional facility operated by the department of corrections or in a youth correctional facility operated by the department of corrections or a private vendor under section 20g of 1953 PA 232, MCL 791.220g; or the period when the minor is a probationer residing in a special alternative incarceration unit established under the special alternative incarceration act, 1988 PA 287, MCL 798.11 to 798.18. This subdivision applies only if a parent or guardian of the minor cannot promptly be located by the department of corrections or, in the case of a youth correctional facility operated by a private vendor, by the responsible official of the youth correctional facility.

Pursuant to the ordinary language of MCL 722.4, emancipation by operation of law occurs when a minor is...