People of Michigan v. Edward Michael Kowalski

Summary

The Michigan Supreme Court held that MCL 750.145a contains two alternative prongs — accosting, enticing, or soliciting a child (or one believed to be a child) with specific intent to induce or force a proscribed act, and encouraging a child to engage in such an act with general criminal intent — and that although the trial court's instruction omitting the actus reus of the accosts/entices/solicits prong was plainly erroneous, defense counsel's repeated express approval of the instruction waived the error. Treating the error as merely forfeited, the Court found no plain error affecting substantial rights because the sexualized chats themselves constituted the proscribed acts, making the actus reus evidence overwhelming and uncontested; it likewise rejected the ineffective-assistance and sufficiency challenges and reversed the Court of Appeals' order granting a new trial. Justice Cavanagh, concurring in the result (joined by Justice Marilyn Kelly), agreed the instruction was improper but questioned the majority's waiver analysis and renewed his objection to extending plain-error review to unpreserved constitutional errors.