People v. Kowalski

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion 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

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant/Cross-
Appellee,

v No. 141695

EDWARD MICHAEL KOWALSKI,

Defendant-Appellee/Cross-
Appellant.

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. The

conversation continued as follows:

Defendant: I might hav too take cold shower … lol

keyanagurl: ya me2

* * *

Defendant: you horny too?

keyanagurl: ya

2
 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

3
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.”

4
 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.

5
 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 –

not just words.”

Following closing arguments, the trial court instructed the jury on the elements of

accosting a minor:

The Defendant is charged with accosting a child for immoral
purposes. To prove this charge, the Prosecutor must prove each of the
following elements beyond a reasonable doubt. First, that the Defendant

6
 believed he was engaging with a child under the age of 16 years. Second,
that the Defendant has then the intent to induce that person who he believed
to be under 16 years to commit an immoral act or an act of sexual
intercourse or an act of gross indecency or other acts of depravity or
delinquency or did encourage said person to engage in one of those acts.
[Emphasis added.][1]

Defense counsel stated that he did not have any objection to the instructions. While

deliberating, the jury asked the court for the definition of “accost,” and the court provided

the following dictionary definition: “to approach and speak to, greet first before being

greeted, especially in an intrusive way.” Defense counsel likewise did not object to that

definition.

Thereafter, the jury convicted defendant of accosting a minor, MCL 750.145a, and

of using a computer or the Internet to do the same, MCL 750.145d(1)(a). Defendant

moved for a judgment of acquittal or for a new trial, arguing that insufficient evidence

supported a finding of the actus reus element of MCL 750.145a. Defendant also moved

for a Ginther2 hearing and argued that trial counsel was ineffective for failing to object to

the trial court’s jury instructions. The trial court denied both motions.

Defendant appealed as of right, and the Court of Appeals reversed his convictions

and remanded the case for a new trial.3 The Court of Appeals held that the trial court

failed to properly instruct the jury on MCL 750.145a because the instruction entirely

1
There is no standard jury instruction for MCL 750.145a.
2
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
3
People v Kowalski, unpublished opinion per curiam of the Court of Appeals, issued
April 27, 2010 (Docket No. 288855).

7
omitted the actus reus of the offense.4 The Court of Appeals concluded that the error was

not harmless beyond a reasonable doubt because it was impossible to tell whether the jury

would have reached the same result had it been properly instructed. However, the Court

of Appeals rejected defendant’s challenge to the sufficiency of the evidence. The

prosecution applied for leave to appeal, and defendant applied for leave to cross-appeal.

We granted both applications.5

II. ANALYSIS

A. ELEMENTS OF MCL 750.145a

The prosecution argues that the Court of Appeals erred by concluding that the trial

court committed instructional error warranting reversal. Before determining whether the

jury instructions were erroneous, we must first construe the meaning and elements of

accosting a minor, MCL 750.145a. We review de novo questions of statutory

4
“Actus reus” is defined as “[t]he wrongful deed that comprises the physical components
of a crime and that generally must be coupled with mens rea to establish criminal
liability[.]” Black’s Law Dictionary (9th ed).
5
People v Kowalski, 488 Mich 953 (2010). In our order, we directed the parties as
follows:

The parties shall include among the issues to be briefed: (1) whether
the Court of Appeals erred when it determined (a) that the trial court’s jury
instructions failed to apprise the jurors of the actus reus of the crime of
accosting, enticing, or soliciting a child for immoral purposes, MCL
750.145a, and (b) that the error was not harmless beyond a reasonable
doubt; (2) whether the defendant waived the instructional error, and if so,
whether his attorney provided ineffective assistance of counsel; and (3)
whether, when viewed in a light most favorable to the prosecution, the
evidence presented at trial was sufficient to enable a rational jury to find
that the actus reus of the charged offense was proven beyond a reasonable
doubt.

8
interpretation.6 The primary goal in interpreting the meaning of a statute is to “ascertain

and give effect to the intent of the Legislature . . . .”7 The first step in determining

Legislative intent is consideration of the statutory language itself.8 Statutory language

must be read in the context of the act as a whole, giving every word its plain and ordinary

meaning.9 When the language is clear and unambiguous, we enforce the statute as

written.10

MCL 750.145a, provides:

A person who accosts, entices, or solicits a child less than 16 years
of age, regardless of whether the person knows the individual is a child or
knows the actual age of the child, or an individual whom he or she believes
is a child less than 16 years of age with the intent to induce or force that
child or individual to commit an immoral act, to submit to an act of sexual
intercourse or an act of gross indecency, or to any other act of depravity or
delinquency, or who encourages a child less than 16 years of age,
regardless of whether the person knows the individual is a child or knows
the actual age of the child, or an individual whom he or she believes is a
child less than 16 years of age to engage in any of those acts is guilty of a
felony punishable by imprisonment for not more than 4 years or a fine of
not more than $4,000.00, or both. [Emphasis added.]

Reduced to its essential language, this provision states:

A person who accosts, entices, or solicits a child . . . with the intent
to induce or force that child . . . to commit an immoral act, to submit to an
act of sexual intercourse or an act of gross indecency, or to any other act of

6
People v Lown, 488 Mich 242, 254; 794 NW2d 9 (2011).
7
Id. (quotation marks and citation omitted).
8
People v Lively, 470 Mich 248, 253; 680 NW2d 878 (2004).
9
Herman v Berrien Co, 481 Mich 352, 366; 750 NW2d 570 (2008).
10
People v Weeder, 469 Mich 493, 497; 674 NW2d 372 (2004).

9
 depravity or delinquency, or who encourages a child . . . to engage in any
of those acts is guilty of a felony . . . . [Emphasis added.]

Because the Legislature used the disjunctive term “or,” it is clear that there are two ways

to commit the crime of accosting a minor.11 A defendant is guilty of accosting a minor if

the prosecution proves beyond a reasonable doubt that the defendant (1) accosted,

enticed, or solicited (2) a child (or an individual whom the defendant believed to be a

child) (3) with the intent to induce or force that child to commit (4) a proscribed act.

Alternatively, a defendant is guilty of accosting a minor if the prosecution proves beyond

a reasonable doubt that the defendant (1) encouraged (2) a child (or an individual whom

the defendant believed to be a child) (3) to commit (4) a proscribed act. Taken as a

whole, the statute permits conviction under two alternative theories, one that pertains to

certain acts and requires a specific intent and another that pertains to encouragement only

and is silent with respect to mens rea.

Although the latter, “encourages” prong lacks an explicit element of intent, there is

no clear indication that the Legislature meant to dispense with the mens rea requirement.

When interpreting a criminal statute that does not have an explicit mens rea element, we

do not construe the Legislature’s silence as an intention to eliminate the mens rea

requirement.12 Significantly, the Legislature’s use of the term “encourages” indicated its

11
“‘Or’ is . . . a disjunctive [term], used to indicate a disunion, a separation, an
alternative.” Mich Pub Serv Comm v City of Cheboygan, 324 Mich 309, 341; 37 NW2d
116 (1949).
12
This rule of construction stems from United States Supreme Court precedent
establishing that courts will infer an element of criminal intent when an offense is silent
regarding mens rea unless the statute contains an express or implied indication that the
legislative body intended that strict criminal liability be imposed. See People v Tombs,
472 Mich 446, 452-456; 697 NW2d 494 (2005), discussing United States v X-Citement

10
intention that the mens rea element of the encourages prong be the intent to do the

physical act of encouraging. The verb “encourages” contemplates intentional conduct by

a defendant. To “encourage” means “to inspire with courage, spirit, or confidence[,] . . .

to stimulate by guidance, approval, . . . to promote; foster.”13 Thus, the act of

encouragement is the evil in itself, and an accused, by completing the act, is “presumed to

intend the natural consequences of his [actions] . . . .”14 In essence, the encourages prong

envisions a mens rea consistent with a general criminal intent.15

In comparison, if a defendant has committed acts of accosting, enticing, or

soliciting, the statute requires the prosecution to demonstrate a specific intent to induce or

force the child to commit proscribed acts; it is not enough for the prosecution to merely

Video, Inc, 513 US 64; 115 S Ct 464; 130 L Ed 2d 372 (1994), Staples v United States,
511 US 600; 114 S Ct 1793; 128 L Ed 2d 608 (1994), and Morissette v United States, 342
US 246; 72 S Ct 240; 96 L Ed 288 (1952). Generally, with the exception of strict liability
crimes, there can be no crime without a criminal intent. Inferring some type of guilty
knowledge or intent is necessary when a statute is silent regarding mens rea because
without it innocent conduct could be criminalized. See People v Roby, 52 Mich 577, 579;
18 NW 365 (1884).
13
Random House Webster’s College Dictionary (2001). Because the statute does not
define the term “encourages,” and because we must give undefined terms their plain and
ordinary meaning, we may consider dictionary definitions to discern the Legislature’s
intent. People v Denio, 454 Mich 691, 699; 564 NW2d 13 (1997).
14
People v Getchell, 6 Mich 496, 504 (1859) (distinguishing between the intent that must
be shown for a specific intent crime and that for a general intent crime).
15
“‘[T]he distinction between specific intent and general intent crimes is that the former
involve a particular criminal intent beyond the act done, while the latter involve merely
the intent to do the physical act.’” People v Nowack, 462 Mich 392, 405; 614 NW2d 78
(2000), quoting People v Beaudin, 417 Mich 570, 573-574; 339 NW2d 461 (1983)
(alteration in Nowack).

11
establish that the defendant committed acts of accosting, enticing, or soliciting. The

Legislature’s inclusion of alternative bases for conviction, one that requires proof of

specific criminal intent and another that requires proof of a general criminal intent,

demonstrated an intention to criminalize a wide range of sexually predatory actions

aimed at children.

B. JURY INSTRUCTIONS

Having construed the elements of MCL 750.145a, we now consider whether the

trial court’s instructions regarding the crime of accosting a minor were erroneous. We

review de novo claims of instructional error.16 We must consider the instructions as a

whole, rather than piecemeal, to determine whether any error occurred.17

A criminal defendant has a constitutional right to have a jury determine his or her

guilt from its consideration of every essential element of the charged offense.18 A

defendant is thus “‘entitled to have all the elements of the crime submitted to the jury in a

charge which [is] neither erroneous nor misleading . . . .’”19 Instructional errors that omit

an element of an offense, or otherwise misinform the jury of an offense’s elements, do

“not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for

16
People v Gillis, 474 Mich 105, 113; 712 NW2d 419 (2006).
17
People v Serra, 301 Mich 124, 132; 3 NW2d 35 (1942) (“The charge must be read as a
whole to determine whether it is prejudicial. The correctness cannot be tested by taking
particular parts.”); People v Aldrich, 246 Mich App 101, 124; 631 NW2d 67 (2001).
18
Lively, 470 Mich at 251, citing United States v Gaudin, 515 US 506; 115 S Ct 2310;
132 L Ed 2d 444 (1995).
19
People v Feezel, 486 Mich 184, 203; 783 NW2d 67 (2010), quoting People v Pepper,
389 Mich 317, 322; 206 NW2d 439 (1973) (alteration in Feezel).

12
determining guilt or innocence.”20 Accordingly, an imperfect instruction is not grounds

for setting aside a conviction if the instruction fairly presented the issues to be tried and

adequately protected the defendant’s rights.21

As noted, the trial court instructed the jury on the elements of accosting a minor as

follows:

The Defendant is charged with accosting a child for immoral
purposes. To prove this charge, the Prosecutor must prove each of the
following elements beyond a reasonable doubt. First, that the Defendant
believed he was engaging with a child under the age of 16 years. Second,
that the Defendant has then the intent to induce that person who he believed
to be under 16 years to commit an immoral act or an act of sexual
intercourse or an act of gross indecency or other acts of depravity or
delinquency or did encourage said person to engage in one of those acts.
[Emphasis added.]

Considering this instruction as a whole, we conclude that it misinformed the jury of the

elements of the offense. Although the instruction was correct with respect to the

encourages prong of the offense, it erroneously omitted the actus reus element of the

“accosts, entices, or solicits” prong of the offense. The fact that the trial court properly

instructed on the encourages prong of the offense did not negate this instructional error.

This is because we do not—and cannot—know whether the jury convicted defendant on

the basis of the accosts, entices, or solicits prong of the offense or the encourages prong

of the offense. Because the trial court omitted the actus reus portion of the accosts,

20
Neder v United States, 527 US 1, 9; 119 S Ct 1827; 144 L Ed 2d 35 (1999).
21
People v Kalder, 284 Mich 235, 241-242; 279 NW 493 (1938) (concluding that an
imperfect jury instruction “taken as a whole . . . fairly presented to the jury the issues to
be tried and sufficiently protected the rights of defendant”); People v Clark, 274 Mich
App 248, 255-256; 732 NW2d 605 (2007).

13
entices, or solicits prong, the instruction was erroneous and the jury was precluded from

making a finding on this element of the offense.

Again, a jury instruction that improperly omits an element of a crime amounts to a

constitutional error.22 However, because defense counsel here explicitly and repeatedly

approved the instruction, defendant has waived the error. This Court has defined

“waiver” as “the intentional relinquishment or abandonment of a known right.”23 “One

who waives his rights under a rule may not then seek appellate review of a claimed

deprivation of those rights, for his waiver has extinguished any error.”24 When defense

counsel clearly expresses satisfaction with a trial court’s decision, counsel’s action will

be deemed to constitute a waiver.25

In this case, before jury selection, the trial court proposed to the prosecutor and

defense counsel the jury instructions for accosting a minor ultimately given. After the

court read the instructions, the following exchange occurred:

The Court: Is there any objection to that as a preliminary instruction?

Defense Counsel: Is that, is that taken from the statute—

The Court: Yes.

* * *

22
People v Carines, 460 Mich 750, 761; 597 NW2d 130 (1999).
23
People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000) (quotation marks and
citation omitted).
24
Id. (quotation marks and citation omitted).
25
Id. at 219.

14
 Defense Counsel: [T]hat’s where I took mine from as well so I, I
don’t have an objection to that. [Emphasis added.]

After the close of proofs, the trial court dismissed the jury, and defense counsel

expressed his approval of the jury instructions generally. The trial court again read the

proposed instruction for accosting a minor, along with several other model jury

instructions. The trial court then asked:

The Court: Any objection to those instructions?

Prosecutor: No, your Honor.

Defense Counsel: No, your Honor, not, not at this time.

After providing the instructions to the jury, the trial court once again asked

counsel if there were any objections. Defense counsel for the fourth time stated, “None

by the defense, your Honor.” Thus, by expressly and repeatedly approving the jury

instructions on the record, defendant waived any objection to the erroneous instructions,

and there is no error to review.26

26
Id. The Court of Appeals erred when it failed to address the prosecution’s claim that
defendant waived the instructional error. The partial concurrence suggests that we
“hastily presume that a waiver occurred in this case simply because defense counsel
stated on more than one occasion that he had no objection to the instruction.” Post at 3.
However, our waiver analysis considers the entire record, which reveals that defense
counsel (1) discussed the instructions with the court, (2) affirmatively approved the
instructions because he thought they were identical to his own proposed instructions, and
(3) then reaffirmed his approval three more times. Thus, the record clearly demonstrates
waiver—an intentional relinquishment of a known right—because counsel’s affirmative
statements were repeated, express, and unequivocal and concerned instructions that
counsel had more than ample time to fully review and consider.

15
 Defendant, however, argues that defense counsel merely forfeited the error

because counsel did not state that he “approved” of the instructions.27 The distinction

defendant attempts to make between counsel stating, “I approve of the instructions,” and

counsel stating, “I have no objections,” is unavailing. Counsel’s statements were express

and unequivocal indications that he approved of the instructions.28 To hold otherwise

would allow counsel to “harbor error at trial and then use that error as an appellate

parachute . . . .”29 Nevertheless, even if we were to accept defendant’s argument that

defense counsel did not waive the issue and, instead, merely forfeited it, defendant would

not be entitled to reversal and a new trial.

We review unpreserved constitutional error for plain error affecting a defendant’s

substantial rights.30 In order to avoid forfeiture under a plain-error analysis, defendant

27
Unlike waiver, forfeiture is “the failure to make the timely assertion of a right.”
Carter, 462 Mich at 215 (quotation marks and citation omitted).
28
The Court of Appeals has consistently held that an affirmative statement that there are
no objections to the jury instructions constitutes express approval of the instructions,
thereby waiving review of any error on appeal. See People v Chapo, 283 Mich App 360,
372-373; 770 NW2d 68 (2009); People v Matuszak, 263 Mich App 42, 57; 687 NW2d
342 (2004); People v Lueth, 253 Mich App 670, 688; 660 NW2d 322 (2002).
29
People v Szalma, 487 Mich 708, 726; 790 NW2d 662 (2010); see also Carter, 462
Mich at 214 (“Counsel may not harbor error as an appellate parachute.”).
30
Carines, 460 Mich at 764. The Court of Appeals erred by reviewing the instructional
error under the harmless-error test articulated in People v Anderson (After Remand), 446
Mich 392, 404-406; 521 NW2d 538 (1994). The harmless-error test applies to preserved
constitutional errors. See Carines, 460 Mich at 774. In this case, defendant did not
preserve his claim of constitutional error for review; rather, as we have concluded, he
waived any error. Additionally, defendant improperly contends that the jury instructions
amounted to structural error warranting automatic reversal under People v Duncan, 462
Mich 47, 52-54; 610 NW2d 551 (2000). In Duncan, we held that when a trial court fails
to instruct on any of the elements of a charged offense, the error is structural in nature

16
must establish (1) that an error occurred, (2) that the error was plain, and (3) that the plain

error affected defendant’s substantial rights.31 Even if defendant could satisfy these

requirements, “[r]eversal is warranted only when the plain, forfeited error resulted in the

conviction of an actually innocent defendant or when an error ‘“seriously affect[ed] the

fairness, integrity or public reputation of judicial proceedings” independent of the

defendant’s innocence.’”32

Defendant has established that an instructional error occurred and that the error is

plain and obvious on the record. However, defendant cannot establish that this error

affected his substantial rights. We have previously held that jury instructions that were

somewhat deficient may nonetheless, when viewed as a whole, have sufficed to protect a

defendant’s rights when the jury would have convicted the defendant on the basis of the

evidence regardless of the instructional error.33 If the evidence related to the missing

element was overwhelming and uncontested, it cannot be said that the error affected the

defendant’s substantial rights or otherwise undermined the outcome of the proceedings.34

and warrants automatic reversal. Id. Unlike the court in Duncan, the trial court here did
not fail to instruct on all the elements of MCL 750.145a.
31
Carines, 460 Mich at 763.
32
Id., quoting United States v Olano, 507 US 725, 736-737; 113 S Ct 1770; 123 L Ed 2d
508 (1993) (alteration in Carines).
33
See, e.g., Carines, 460 Mich at 770-771 (holding that an instructional error omitting an
element of the charged offense did not affect the defendant’s substantial rights because
the jury would not have convicted the defendant without concluding that the defendant
committed the acts constituting the omitted element).
34
See Neder, 527 US at 17 (“[W]here a reviewing court concludes beyond a reasonable
doubt that the omitted element was uncontested and supported by overwhelming

17
 Here, even if the trial court had properly instructed on the accosts, entices, and

solicits prong of the offense, the jury would still have convicted defendant because the

Internet chats, in and of themselves, were immoral, grossly indecent, delinquent, and

depraved acts that constituted the actus reus under either prong of the offense.35 The

only acts on which the prosecution based the charge were defendant’s online exchanges

with keyanagurl. These chats were admitted into evidence, without any objection, and

defendant, during opening and closing argument, conceded that these conversations

occurred. The content of the exchanges established beyond any reasonable doubt that the

chats constituted immoral, grossly indecent, depraved, or delinquent acts.36

evidence, such that the jury verdict would have been the same absent the error, the
erroneous instruction is properly found to be harmless.”).
35
Furthermore, review of the record as a whole indicates that the jury was aware that
MCL 750.145a required the prosecutor to prove that defendant committed one of the acts
proscribed by the statute, which included encouraging a minor to commit an immoral or
delinquent act. The trial court told the jury that defendant was charged with “accost[ing],
entic[ing], or solicit[ing]” a child. In addition, during closing arguments, both parties
consistently asserted that MCL 750.145a required proof that defendant committed an act.
The prosecutor informed the jury that it had to find that defendant accosted, enticed,
solicited, or encouraged keyanagurl. The prosecutor stated that the statute required her to
prove that defendant accosted or enticed. She explained that “accosting” was illegal, and
noted that the “law says accost, entice, or solicit with a certain intent.” The prosecutor
argued that defendant tried to entice or induce keyanagurl. Defense counsel informed the
jury that it had to find that defendant committed an act. Finally, after deliberations
began, the jury requested that the trial court provide a legal definition of “accost,” and the
trial court honored that request.
36
Although there is no Michigan caselaw defining these terms in the context of MCL
750.145a, this Court in People v Lino, 447 Mich 567, 578; 527 NW2d 434 (1994),
explained that an individual’s “orchestrating the conduct of [a minor] to facilitate . . .
sexual arousal and masturbation in the presence of the minors would constitute the
offense of procuring, or attempting to procure, an act of gross indecency . . . .”
(Emphasis added.)

18
 At the outset, defendant invited keyanagurl to engage in role-playing or cybersex.

After learning keyanagurl’s age, defendant continued to guide the course of the

conversation in a manner intended to heighten the sexualized nature of the chats.

Defendant asked keyanagurl if she was “horny” and indicated that he was; defendant

asked keyanagurl for her photograph and upon receiving it, indicated that he was sexually

aroused and referred to physical attributes of his genitalia; and defendant told keyanagurl

that he enjoyed fantasizing about young women and performing oral sex. Defendant also

told keyanagurl that she was “cute” and had a “yummy” chest.

Moreover, defendant sought to escalate the instant messaging conversation by

repeatedly requesting or soliciting keyanagurl to talk over the telephone or using their

computers’ microphones, interspersing those solicitations with highly sexualized

comments, including comments about how horny he was. After keyanagurl rebuffed

defendant’s attempts to speak with her, this first chat between defendant and keyanagurl

concluded with defendant stating that he needed to have cybersex with someone and that

he would soon masturbate. In subsequent chats, defendant spoke of a “big orgy,” skinny-

dipping, his hot tub, and how he loved to be naked; he also told keyanagurl that he

needed her to be his “sexy waitress.”

Additionally, DeWeese’s testimony would have allowed a rational juror to

conclude that defendant’s acts were intended to engage keyanagurl in sexually delinquent

behavior through a common plan or scheme that he had used on DeWeese. DeWeese

testified that her online chats with defendant eventually led to cybersex at defendant’s

direction. She testified that defendant told her to dress so that she looked “young” and

explained that defendant had a collection of pornographic photographs of sexually

19
undeveloped girls. Further, a jury could have inferred from the testimony of the

homeowner who lived in the area that, after Emrick questioned defendant, defendant

destroyed his computer and discarded it in a secluded, rural location. This, coupled with

defendant’s dishonesty about having home Internet access, would have allowed a jury to

infer that defendant evinced a consciousness of guilt.37

Taking all this evidence together, it is clear that the evidence of the actus reus

under either prong of the offense was overwhelming and uncontroverted. The chats

constituted highly sexualized conversations, which were by themselves immoral, grossly

indecent, delinquent, or depraved acts. These highly sexualized conversations between

defendant (an adult stranger) and a person whom he presumed to be a child, in which the

child sent the stranger her photograph, was asked for her phone number, and was

continuously objectified in a sexual manner, would have given an actual child a distorted

and unhealthy view of human relationships and would have involved her in a distinctly

antisocial set of behaviors. As the prosecutor explained at trial, “sex talk over the

internet,” such as the highly sexualized conversations that undisputedly occurred between

defendant and someone whom he believed to be a 15-year–old girl, “in and of itself is a

delinquent act for a minor to be engaging in . . . .” We agree with the prosecutor that,

according to “common everyday understanding . . . this [kind of sex talk over the

Internet] is delinquent behavior . . . .” By engaging in the chats, defendant committed the

37
See People v Cutchall, 200 Mich App 396, 400-401, 404-405; 504 NW2d 666 (1993)
(noting that attempts to conceal involvement in a crime are probative of a defendant’s
consciousness of guilt), overruled in part on other grounds by People v Gatewood, 450
Mich 1025 (1996); People v Unger, 278 Mich App 210, 227; 749 NW2d 272 (2008) (“A
jury may infer consciousness of guilt from evidence of lying or deception.”).

20
actus reus of accosting a minor under either prong of the offense. Therefore, by

admitting that he participated in the chats with a person he presumed was a 15-year-old

girl, defendant cannot establish that the trial court’s charge to the jury affected the

outcome of the lower court proceedings.38

III. CONCLUSION

Defendant engaged in highly sexualized online chats with a person whom he

believed to be a 15-year-old girl. In doing so, he accosted, enticed, solicited, or

encouraged a child to commit an immoral, grossly indecent, delinquent, or depraved act

within the meaning of those terms in MCL 750.145a. Although the trial court erred when

it failed to instruct on the actus reus of the accosts prong of the offense, reversal is not

warranted. Regardless of whether defendant waived review of the instructional error, the

error did not affect his substantial rights, defendant was not denied the effective

assistance of counsel, and there was sufficient evidence to support his convictions. We

38
We also reject defendant’s arguments related to ineffective assistance of counsel and
sufficiency of the evidence. To establish that he was denied the effective assistance of
counsel, “defendant must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland v Washington, 466 US 668, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984). Even
assuming that defense counsel acted deficiently under an objective standard of
reasonableness when he agreed to the jury instructions, defendant cannot establish that
there is a reasonable probability that, but for defense counsel’s failure to object, the result
of the proceeding would have been different. For the same reasons that we conclude that
defendant failed to show outcome-determinative prejudice under the plain-error standard
discussed earlier in this opinion, we also conclude that defendant failed to show that there
was a “reasonable probability that but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Id. From the same evidence, we likewise
conclude that sufficient evidence supported defendant’s convictions under MCL
750.145a and MCL 750.145d(1)(a).

21
therefore reverse the judgment of the Court of Appeals and remand for reinstatement of

the judgment of sentence pursuant to the jury convictions.

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

22
 STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant/Cross-
Appellee,

v No. 141695

EDWARD MICHAEL KOWALSKI,

Defendant-Appellee/Cross-
Appellant.

CAVANAGH, J. (concurring in the result).
I agree with the majority’s conclusion that the trial court improperly instructed the

jury on the charged offense, MCL 750.145a. Although I do not believe that the evidence

against defendant was “overwhelming,” I concede that, under the facts of this case,

defendant cannot establish that he is entitled to relief under plain-error review.

Accordingly, I concur only with the result reached by the majority opinion. I write

separately, however, because I question the majority’s waiver analysis. I also write to

reiterate my belief that this Court should not have extended the plain-error review

doctrine to the type of arguably unpreserved constitutional error present in this case.

Federal caselaw suggests that the majority’s waiver analysis is overly simplistic.

As the majority correctly explains, the canonical definition of “waiver” is the

“‘intentional relinquishment of a known right.’” People v Shahideh, 482 Mich 1156,

1180 (2008) (CAVANAGH, J., dissenting), quoting Bailey v Jones, 243 Mich 159, 162; 219
NW 629 (1928) (emphasis added). Applying this definition, the United States Court of

Appeals for the Third Circuit has concluded that the threshold question in determining

whether an issue capable of being waived has indeed been waived is “whether the

appellant who failed to object in the trial court to an error that violated his rights was

aware of the relinquished or abandoned right.” Virgin Islands v Rosa, 399 F3d 283, 291

(CA 3, 2005) (emphasis added). In other words, while “waiver is accomplished by

intent,” unpreserved, or what has been dubbed “forfeited,” error “comes about through

neglect.” United States v Cruz-Rodriguez, 570 F3d 1179, 1183 (CA 10, 2009) (quotation

marks and citations omitted); see, also, People v Grant, 445 Mich 535, 554; 520 NW2d

123 (1994) (LEVIN, J., concurring). Accordingly, a rote statement by trial counsel that he

has “no objection” to the instructions, or his expression of satisfaction with the

instructions as given, may not necessarily be determinative of whether the right was in

fact waived. Rosa, 399 F3d at 287-289, 291, 293. Instead, whether a failure to object

will be deemed a waiver depends on whether the defendant had knowledge of the right,

yet intentionally chose to abandon it or “consciously refrain[ed] from objecting as a

tactical matter.” Id. at 291 (quotation marks and citations omitted).1

1
See, also, Cruz-Rodriguez, 570 F3d at 1183, 1185 (stating that “[w]aiver occurs when a
party deliberately considers an issue and makes an intentional decision to forgo it” and
identifying the “classic waiver” situation as occurring when “a party ‘actually identified
the issue,’ ‘deliberately considered’ it, and then affirmatively acted in a manner that
‘abandoned any claim’ on the issue”) (emphasis added) (citation omitted); United States v
Arviso-Mata, 442 F3d 382, 384 (CA 5, 2006) (concluding that a scoring error was not
waived when there was no evidence that counsel “knew of the sentencing guidelines
issue,” yet “consciously chose” to forgo it given defense counsel’s mere statement that he
had “no problem” with the presentence report); accord People v Grimmett, 388 Mich 590,
598, 601; 202 NW2d 278 (1972) (explaining that waiver requires both “specific
knowledge of the constitutional right” and an “intentional decision to abandon the . . .

2
 Although some federal courts have concluded otherwise, see, e.g., United States v

Gonzalez, 319 F3d 291, 298 (CA 7, 2003), in my view, the aforementioned analysis is

persuasive and consistent with the generally recognized notion that waiver of a

constitutional right should not be lightly presumed, see Brookhart v Janis, 384 US 1, 4;

86 S Ct 1245; 16 L Ed 2d 314 (1966) (explaining that “[t]here is a presumption against

the waiver of constitutional rights”); Rosa, 399 F3d at 294 n 12 (explaining that a

defendant’s federal due process rights are violated if a jury instruction omits or materially

misdescribes an essential element of an offense). By focusing on the definition of

waiver—i.e., the intentional relinquishment of a known right—the federal caselaw

discussed ensures that a defendant’s right to appellate review of an instructional error is

not summarily foreclosed simply because trial counsel mechanically agreed with an

erroneous jury instruction when counsel was unaware of the correct rule of law or, if

aware of it, did not realize that the instruction misstated the law. Rosa, 399 F3d at 291.

In light of this caselaw, I would not hastily presume that a waiver occurred in this

case simply because defense counsel stated on more than one occasion that he had no

objection to the instruction. Indeed, the facts of Rosa counsel against such an analysis.

See id. at 287-289, 291, 293.2

right” and concluding that no waiver occurred when defense counsel was mistaken in his
view of the law), overruled on other ground by People v White, 390 Mich 245; 212
NW2d 222 (1973), overruled on other grounds by People v Nutt, 469 Mich 565; 677
NW2d 1 (2004).
2
In Rosa, the United States Court of Appeals for the Third Circuit did not find a
“knowing waiver situation” despite discussions regarding the jury instructions and
despite defense counsel’s (1) statement that he had “looked at” the proposed instructions,
that they could apply to his client, and that he had no additions to or modifications or

3
 Nevertheless, I concur with the majority’s result because I agree with the

majority’s conclusion that defendant cannot establish that he is entitled to relief under the

plain-error standard of review. As I have noted in the past, however, I continue to

disagree with this Court’s decision to extend plain-error review to unpreserved

constitutional errors and instead would subject such errors to harmless-error analysis.

See Grant, 445 Mich at 554-557 (LEVIN, J., concurring); People v Carines, 460 Mich

750, 775-783; 597 NW2d 130 (1999) (MARILYN KELLY, J., concurring in part and

dissenting in part); People v Borgne, 483 Mich 178, 196 n 8, 202 n 17; 768 NW2d 290

(2009). Indeed, as I have previously stated, the notion that a defendant would not be

entitled to relief if, despite the error seriously affecting the fairness and integrity of the

trial, he could not prove prejudice “seems to be an anomaly that should not stand” and is

yet another reason that I continue to disagree with the Carines and Grant framework.

Borgne, 483 Mich at 202 n 17. I acknowledge that my position regarding unpreserved

constitutional errors has yet to win the favor of this Court. Thus, as I have done in other

cases, I recognize that Carines is the law in Michigan. For this reason, I concur only in

the result reached by the majority opinion.

Michael F. Cavanagh
Marilyn Kelly

corrections of the proposed instructions and (2) statements on at least three occasions that
he was satisfied with the proposed jury instructions, including at least one acquiescence
that occurred after a delay that provided the attorneys additional time to review and raise
objections to the proposed instructions. Rosa, 399 F3d at 287-289, 291, 293.

4