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Michigan Supreme Court Lansing, Michigan

Opinion
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant/CrossAppellee, v EDWARD MICHAEL KOWALSKI, Defendant-Appellee/CrossAppellant.

Chief Justice:

Justices:

Robert P. Young, Jr. Michael F. Cavanagh Marilyn Kelly Stephen J. Markman Diane M. Hathaway Mary Beth Kelly Brian K. Zahra

FILED JULY 26, 2011 STATE OF MICHIGAN SUPREME COURT

No. 141695

BEFORE THE ENTIRE BENCH MARY BETH KELLY, J. In this case, we must determine whether defendant's convictions of accosting a minor for immoral purposes or encouraging a minor to commit an immoral act, MCL 750.145a, and using a computer or the Internet to accomplish the same, MCL 750.145d, should be overturned on the basis of erroneous jury instructions. The instructions given at trial did not properly apprise the jury of the actus reus of the accosting a minor statute and were therefore plainly erroneous. However, we conclude that, regardless of whether defendant waived review of the jury instructions, the instructions did not result in

outcome-determinative error, defendant was not denied the effective assistance of counsel, and sufficient evidence was produced at trial to support the jury's verdict. We therefore reverse the judgment of the Court of Appeals and reinstate the jury convictions. I. FACTS AND PROCEDURAL HISTORY Defendant, then aged 51, logged into a Yahoo! chat room under the screen name "mr_ltr_nmidmi_007" and engaged in a conversation with a person he believed to be a 15-year-old girl indentifying herself as "keyanagurl." Before he asked keyanagurl her age, defendant stated that he was "very horny" and asked keyanagurl if she wanted to role-play. Defendant went on to say that he enjoyed different types of sexual activities, including "role, phone, cyber" and "real!" In fact, keyanagurl was Vincent Emrick, an undercover police officer. Upon learning that keyanagurl was supposedly a 15-year-old girl, defendant continued the chat. Defendant informed keyanagurl that he had a "great pool in the woods" with "no neighbors in sight," and asked if she had a boyfriend. Defendant told keyanagurl he was divorced, but explained that he would rather "be with someone, enjoy sharing and cuddling[.]" Defendant requested that keyanagurl send him photographs of herself, and keyanagurl agreed and sent a photograph of a 15-year-old girl. conversation continued as follows: Defendant: I might hav too take cold shower ... lol keyanagurl: ya me2 * * * Defendant: you horny too? keyanagurl: ya The

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Defendant: mmm...nice Defendant: what size chest do you hav looks awesome * * * keyanagurl: its 36b Defendant: yummy Defendant asked keyanagurl what she was wearing, and when she responded "nuthin hot," defendant exclaimed, "oh baby sweet." Defendant indicated that he was only wearing boxer shorts and repeatedly asked if the two could speak on the telephone or Internet voice chat. First, defendant asked keyanagurl, "you hav mic?" When

keyanagurl responded that her microphone was broken, he asked if she had a cellular phone or whether she could enable his microphone on her computer. When that did not work, defendant asked to call her home phone. During these repeated attempts to speak with her, defendant also engaged in the following exchange: Defendant: i lov to fantasize about young women gets me rock hard keyanagurl: good * * * Defendant: i lov oral keyanagurl: its ok Defendant: esp [giving] After keyanagurl refused his last attempt to speak with her on the phone, defendant conceded that he was "thinkin with wrong brain[.]" When keyanagurl asked defendant how many "brains" he had, defendant replied that he had two and that one was

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in his boxers and was "gettin bigger" and "feels great[.]" He stated that when he was in school he was "always horny[.]" The chat concluded as follows: Defendant: jus need to cyber Keyanagurl: cyber wat Defendant: sx keyanagurl: ya wit who? Defendant: someone * * * keyanagurl: u cyberin now Defendant: nope . . . * * * Defendant: gonna stroke it soon Over the following six days, keyanagurl chatted two more times with defendant. During the second chat, defendant stated that he was about to vacuum his pool to prepare for a party later that evening. He stated that there would be friends and alcohol at the party and exclaimed, "cant wait for hot weather for skinny dipp[ing]." Defendant also mentioned that he had a hot tub. During the third chat, keyanagurl asked defendant about his pool party. Defendant responded that "it was a blast" with "lots of partying" and explained that he was back at work. He stated, "cant wait to get home and skinny dip" and "i love being naked." Defendant explained that, during the party, "there was lots of naked bodies in my pool, big orgy[.]" He stated that he was "a touchy feely type guy[.]" When keyanagurl asked defendant if the partygoers were all drunk, defendant stated "yup" and remarked, "we needed a sexy waitress like you."

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Shortly thereafter, Emrick appeared at defendant's home to execute a search warrant. Defendant denied that he owned a computer, denied that he had home Internet access, and denied that he had a Yahoo! account. However, Emrick observed a computer monitor in the home and confronted defendant with a local newspaper article that featured a story about how defendant used the Internet to collect Frisbees. Several hours after Emrick left the residence, a homeowner in the area saw defendant dump "thin strips of beige plastic" near a dirt road in a rural location. Police officers responded to the call and collected the parts. At trial, prosecution witness Jasmine DeWeese testified that when she was 22 years old, she began an online relationship with defendant that included consensual cybersex and eventually led to physical sex. After two or three chats, defendant invited DeWeese to his home, and he offered to pay her to clean his house. DeWeese agreed and went to defendant's home on several occasions. She testified that defendant asked her to wear clothing that made her look "cute" and "young" and specifically requested that she wear a "schoolgirl" outfit. DeWeese testified that defendant suggested that she bring her underage sister along to help clean and swim in his pool, where "[s]uits were optional." DeWeese testified that defendant showed her his favorite pornographic websites and other pornography stored on his computer's hard drive. DeWeese testified that the photographs on the hard drive depicted girls that looked "extremely young" and sexually undeveloped. The trial court admitted DeWeese's testimony pursuant to MRE 404(b) to show defendant's intent and to show that defendant acted according to a common plan, scheme, or system.

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Defendant did not present any evidence and instead moved for a directed verdict, which the trial court denied. During closing argument, the prosecutor stated that the accosting a minor statute, MCL 750.145a, required a finding that defendant "did accost, solicit, or entice." The prosecutor proceeded to define each of those terms and explained, "So those are the three ways you can do this. You accost, entice or solicit . . . [and] the prosecution has the burden of proving beyond a reasonable doubt all of the elements. That's one of the elements I have to prove." In her rebuttal, the prosecutor stated that "[a]ccosting a minor on the internet for the purposes I've described in the statute, that's illegal." The prosecutor noted that "[t]he law says accost, entice or solicit with a certain intent. . . . It says you accosted, enticed or solicited with the intent to result in an act." She argued that defendant had tried to entice and induce keyanagurl. Defense counsel responded in closing argument that defendant had not accosted, enticed, solicited, or encouraged keyanagurl to commit any proscribed act, despite participating in the chats. Defense counsel argued that because defendant did not invite keyanagurl to meet him, did not ask her to have sex with him, and did not exchange obscene photographs with her, defendant could not be guilty of accosting a minor under MCL 750.145a. Rather, defense counsel asserted that a conviction under MCL 750.145a must be supported by "some kind of an action, . . . some kind of an act in furtherance

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