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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v ROGER DALE ROBERTS, Defendant-Appellant.

FOR PUBLICATION May 10, 2011 9:00 a.m. No. 294212 Muskegon Circuit Court LC No. 08-057305-FH Advance Sheets Version

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 -1-

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 NW2d 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. US Const, Am XIV; Const 1963, art 1,

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