People v Roger Dale Roberts

DEFENSES -- Unconstitutionality of Statute or Ordinance -- Void For Vagueness
DEFENSES -- Unconstitutionality of Statute or Ordinance -- Void For Overbreadth
SEARCH AND SEIZURE -- Consent
CONFESSIONS -- Custodial Interrogation
SENTENCING AND PUNISHMENT -- Guidelines -- Departure
 
People v Roger Dale Roberts
___ Mich App ___ (#294212, 05-10-11)
PC: Sawyer, Whitbeck, Wilder
SCOTT GRABEL
 
Affirmed convictions of three counts of child sexually abusive activity.
 
The child sexually abusive activity statute, MCL 750.145c, is not void for vagueness.  Defendant challenged the provision in the statute providing an affirmative defense if the defendant proves that the child is emancipated by operation of law.  MCL 722.4 provides specific criteria that must be met for a minor to be considered emancipated by operation of law.  Therefore, MCL 750.145c clearly provides “a person of ordinary intelligence a reasonable opportunity to know what is prohibited” and what circumstances must exist in order for emancipation by operation of law to be applicable.
 
MCL 750.145c(2) is not unconstitutionally overbroad.   Where the law provides fair notice of the conduct proscribed and “[t]he prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance,” the materials do not enjoy the protection of the First Amendment. 

Defendant’s statements and the evidence obtained were admissible, and the trial court did not err by denying defendant’s motion to suppress.  The trial court’s decision to not exclude the police officers’ testimony at the suppression hearing was not an abuse of discretion, and the trial court was entitled to use its discretion in considering the polygraph examination results in weighing defendant’s credibility. The officers testified that defendant’s consent to their entry of his home was unequivocal and specific, as well as freely and intelligently given.  Their testimony is supported by defendant’s conduct.
 
Based on the fact that defendant was not in custody and never even requested counsel, there was no Miranda violation.  A reasonable person in defendant’s position would believe that he was free to leave, and therefore defendant was clearly not in custody.   In addition, according to the officers, defendant’s statements to the police were voluntary.
 
The trial court correctly considered the totality of the circumstances and determined that a downward departure from the guidelines was not justified.