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141695 - People v Kowalski

The People of the State of Michigan,
 
Jonathan L. Poer
 
Plaintiff-Appellant/Cross-Appellee,
 
v
(Appeal from Ct of Appeal)
 
 
(Lenawee – Koselka, H.)
 
Edward Michael Kowalski,
 
Robert L. Levi
 
Defendant-Appellee/Cross-Appellant.
 

Summary

​On July 19, 2007, Adrian Police Detective Vincent Emrick went online posing as “keyanagurl” – a 15-year-old girl. According to Emrick’s later testimony, Edward Kowalski, whose screen name was “mr_ltr_nmidmi_007,” contacted “keyanagurl” in a Yahoo chat room; they had three conversations, in which Kowalski made sexual comments to “keyanagurl,” even though “keyanagurl” said that she was 15 years old. When Emrick was unable to initiate a fourth conversation with Kowalski, he surmised that Kowalski had realized that “keyanagurl” was a police officer. On August 14, 2007, Emrick obtained a search warrant for Kowalski’s house. The police search turned up a computer monitor, but no other computer equipment.

Kowalski was charged with accosting, enticing or soliciting a child for immoral purposes (MCL 750.145a) and use of the internet or a computer to accost, entice, or solicit a minor (MCL 750.145d). At trial, Emrick testified about his online chats with Kowalski. He also testified that, on the day of the search, Kowalski told him that he had no internet and no computer in his home, and that he did not have a Yahoo account. A second witness testified that he saw a man, whom he identified as Kowalski, who appeared to be dumping pieces of beige plastic. Another witness testified that, several years earlier when she was 22 years old, she met Kowalski in a chat room and developed a relationship with him. She testified that Kowalski was interested in young girls.

At the close of the prosecution’s evidence, defense counsel moved for a directed verdict, arguing that the prosecution had not met its burden of showing that Kowalski “had the intent to solicit, accost, . . . or solicit . . . a pretend persona . . . .” The court denied the motion. Kowalski did not call any witnesses, but his attorney argued in closing argument that Kowalski did not invite “keyanagurl” to his home, initiate any kind of meeting with her, or proposition her for sex. What Kowalski did may have been offensive and in bad taste, but it was not criminal, his attorney contended.

During its deliberations, the jury asked the trial court to define “accost.” The judge, after consulting with the attorneys, advised the jury that “accost” means to “approach and speak to, greet first before being greeted, especially in an intrusive way . . . .” About two hours later, the jury returned a guilty verdict on both counts. Kowalski was sentenced to six months in jail and five years’ probation.

Kowalski filed two motions asking the trial court to grant a new trial; he argued that Emrick had perjured himself and that the prosecutor had not established the crime’s actus reus, the physical act of committing the crime. Through appellate counsel, Kowalski argued that the jury instructions were defective and that his trial counsel provided ineffective assistance when he approved the instructions. The trial court denied Kowalski’s motions.

In an unpublished per curiam opinion, the Court of Appeals reversed Kowalski’s convictions and remanded the case to the trial court for a new trial. The panel concluded that the jury instructions were defective because they omitted any mention of the actus reus of the crime. The error was not remedied elsewhere in the instructions, and it was not harmless beyond a reasonable doubt because there was no way to determine whether the jury would have reached the same verdict had it been properly instructed, the appellate court said. The court did not address Kowalski’s remaining claims of error, including his argument that the prosecutor presented insufficient evidence of the charged crimes to support his convictions.

The prosecutor and the Attorney General appeal the Court of Appeals ruling, and Kowalski appeals as cross-appellant.