People v. Kowalski
489 Mich. 488
| Mich. | 2011Background
- Defendant, age 51, used Yahoo! chat as 'mrltrnmidmi_007' and believed he was chatting with a 15-year-old girl; undercover officer played the girl 'keyanagurl.'
- Chats revealed explicit sexual intent and attempts to arrange audio/phone contact; defendant described sexual fantasies and requested photographs from the minor.
- Over six-day period, defendant continued sexualized chats; discussed parties, skinny-dipping, hot tub, and other explicit themes; stated he enjoyed fantasizing about young women.
- Jury later heard testimony from Jasmine DeWeese about a separate online relationship with defendant culminating in physical sex; evidence admitted to show intent and common plan under MRE 404(b).
- Trial court gave a jury instruction on accosting a minor that omitted the actus reus of the accosting prong; defense did not object, and defense counsel approved the instruction multiple times.
- Court of Appeals reversed, holding instructional error omitted actus reus and was not harmless beyond a reasonable doubt; Michigan Supreme Court granted leave to review the issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the instruction on accosting a minor omitted actus reus | Kelly | Kelly | Instruction erroneous but harmless |
| Waiver of instructional error by defense | State | Kelly | Waiver found; no reversal |
| Whether plain-error review is appropriate for unpreserved constitutional error | State | Kelly | Plain error applied; no reversal given overwhelming evidence |
| Sufficiency of evidence to prove actus reus under MCL 750.145a | State | Kelly | Sufficient evidence to support actus reus |
| Ineffective assistance of counsel | State | Kelly | No ineffective-assistance warranting reversal |
Key Cases Cited
- People v Ginther, 390 Mich 436 (1973) (standard for ineffective assistance review)
- People v Carines, 460 Mich 750 (1999) (harmless-error framework for preserved errors; structure of review)
- Neder v United States, 527 U.S. 1 (1999) (omitted element harmless if uncontested and overwhelming)
- People v Lino, 447 Mich 567 (1994) (acts constituting gross indecency; intent considerations)
- People v Kowalski, 488 Mich 953 (2010) (importance of actus reus and mens rea in context of evidence)