PEOPLE OF MI V JAMES FRANKLIN ROBERSON
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
February 15, 2002
Plaintiff-Appellee,
V
No. 223791
Midland Circuit Court
LC No. 99-009184-FH
JAMES FRANKLIN ROBERSON,
Defendant-Appellant.
Before: Bandstra, C.J., and Fitzgerald and Gage, JJ.
PER CURIAM.
Defendant challenges his jury convictions of first-degree home invasion, MCL
750.110a(2), second-degree criminal sexual conduct, MCL 750.520c(1)(e), and assault with
intent to commit sexual penetration, MCL 750.520g(1). We affirm.
Defendant first contends that the trial court erred in allowing a witness to identify
defendant’s voice as unique, arguing that his being required to state his name, address, and date
of birth was self-incriminatory and in violation of the Fifth Amendment. US Const, Am V. We
disagree.
Generally, this Court reviews such matters of constitutional law de novo. See People v
Smith, 243 Mich App 657, 681-682; 625 NW2d 46 (2000). However, defendant’s failure to
affirmatively raise the privilege against self-incrimination and his acknowledgement that the
statement itself was not of a testimonial nature – thus raising no Fifth Amendment issues –
constitutes waiver extinguishing any error. People v Carter, 462 Mich 206, 216; 612 NW2d 144
(2000); People v Hooks, 101 Mich App 673, 680; 300 NW2d 677 (1980). Absent a
demonstration of ineffective assistance of counsel, waiver may be effected by counsel, including
decisions on “what evidentiary objection to raise, . . . and what agreements to conclude regarding
the admission of evidence . . . .” Carter, supra at 218, quoting New York v Hill, 528 US 110,
114; 120 S Ct 659; 145 L Ed 2d 560 (2000).
Defendant does not argue that his counsel was ineffective in this regard and any such
argument would be futile. Our courts have long recognized the distinction between compelled
self-incrimination through a testimonial statement and the mere display of a defendant’s person
or unique identifying characteristic. People v Placido, 310 Mich 404, 408; 17 NW2d 230
(1945). See also People v Collins, 16 Mich App 667, 668-670; 168 NW2d 624 (1969); People v
Heading, 39 Mich App 126, 131; 197 NW2d 325 (1972). Notwithstanding the fact that the Fifth
-1-
Amendment privilege is often said to provide a “right to remain silent,” this distinction applies to
allow compelled speaking for the sole purpose of voice identification such as occurred here. See
United States v Wade, 388 US 218, 222-223; 87 S Ct 1926; 18 L Ed 2d 1149 (1967) (requiring a
defendant to speak at a lineup “was not compulsion to other statements of a ‘testimonial’ nature;
he was required to use his voice as an identifying physical characteristic, not to speak his guilt.”);
see also People v Schrader, 10 Mich App 211, 214; 159 NW2d 147 (1968). Accordingly,
defendant is entitled to no relief on this claimed error.
Defendant also challenges the sufficiency of the evidence to support his convictions of
second-degree criminal sexual conduct and assault with intent to commit sexual penetration,
arguing that there was insufficient evidence to support a finding that he was armed with a
weapon, or that he committed the assault with the intent to penetrate. Again, we disagree.
When determining whether sufficient evidence has been presented to sustain a
conviction, we must view the evidence in the light most favorable to the prosecution and
determine whether any rational trier of fact could have found that the essential elements of the
crime were proven beyond a reasonable doubt. People v Herndon, 246 Mich App 371, 415; 633
NW2d 376 (2001).
Defendant was convicted of second-degree criminal sexual conduct under MCL
750.520c(1)(e), which requires a showing that “the actor [was] armed with a weapon, or any
article used or fashioned in a manner to lead a person to reasonably believe it to be a weapon.”
Contrary to defendant’s assertions, the victim need not actually view a weapon; it is sufficient, as
the statute states, that the victim reasonably believe a weapon was used by an assailant because
of the way an article was used during the crime. See People v Hurst, 155 Mich App 573, 576;
400 NW2d 685 (1986). Here, the victim testified that her assailant told her repeatedly that he
had a knife and that he would cut her if she resisted. Consistent with that account, the victim felt
“something metal” in her assailant’s hand. The victim said that she never saw a knife but she
believed that her assailant had a knife during the attack. When arrested, defendant was found in
possession of a knife that was described as always in his possession. This evidence when viewed
in the light most favorable to the prosecution was sufficient to allow a rational trier of fact to find
beyond a reasonable doubt that defendant committed the charged crime while armed. Herndon,
supra at 415.
The evidence in support of defendant’s assault with intent to commit sexual penetration
was similarly sufficient. Conviction of assault with the intent to penetrate requires that the
defendant “must have intended an act involving some sexually improper intent or purpose.”
People v Snell, 118 Mich App 750, 754-755; 325 NW2d 563 (1982). There is no requirement
that the sexual act be started or completed. Id. at 755. Moreover, under MCL 750.520a(l),
sexual penetration by “any part” of an assailant’s body is criminal, including fingers. People v
Hammons, 210 Mich App 554, 557; 534 NW2d 183 (1995).
As a general rule, intent is a question of fact that “may be proven indirectly by inference
from the conduct of the accused and surrounding circumstances from which it logically and
reasonably follows.” People v Johnson, 54 Mich App 303, 304; 220 NW2d 705 (1974). An
assailant’s actions that include the touching of genitalia and an attempt to prepare the victim for a
sexual act is sufficient to support an inference of intent to penetrate. See People v McFall, 224
Mich App 403, 406-407; 569 NW2d 828 (1997). Here, the victim testified that defendant
-2-
touched her genitalia and told her to “just lay here and like what’s going on.” This evidence,
when viewed in the light most favorable to the prosecution, was sufficient to allow a rational
trier of fact to find beyond a reasonable doubt that defendant committed the assault with the
intent to penetrate. Herndon, supra at 415.
We affirm.
/s/ Richard A. Bandstra
/s/ Hilda R. Gage
I concur in result only.
/s/ E. Thomas Fitzgerald
-3-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
