People v. Kowlaski: Supreme Court Answers What Does It Mean to “Accost” A Child for Immoral Purposes?
The Michigan Supreme Court Case of People v. Kowalski focuses on the law of accosting a minor for immoral purposes under MCL 750.145a. Specifically, the Court answers the question of what does it mean to ‘accost’ a minor?
What Happened in the Case
Defendant was speaking with a “girl” on the internet whom he believed was 15 years old. The girl was really an undercover police officer. The Defendant and the fake girl had several conversations, that were sexual in nature. The two never met in person.
Accosting a Minor Child Statute
Here’s what the law says: It is a felony punishable by up to 4 years in prison to
- Accost, solicit, or entice a child under 16,
- To commit an immoral act, to submit to an act of sexual intercourse or an act of gross indecency, or any other act of depravity or delinquency, or
- Encourages such acts
- Regardless of whether the person knows the child is under 16, or if the a person believes the other person to be under 16 (even if the “child” is not a child),
During closing arguments, Defendant argued he did not accost, solicit, or entice the fake girl. Specifically, Defendant argued he did not invite her to meet him, ask her to have sex, and did not exchange photos with her. Defendant asked the jury to see that he took no action, but only words with the fake girl.
During deliberations, the jury asked the Court for the definition of the word “accost.” The judge defined the word as, “to approach and speak to, greet first before being greeted, especially in an intrusive way.”
The jury convicted Defendant of accosting a minor under MCL 750.145a and using a computer to accost a minor under MCL 750.145d(1)(a).
The issue on appeal is whether the Defendant actually accosted the fake girl or encouraged her to perform the sex acts, etc. The Court identified that a Defendant could be guilty under two theories of the statute – either accosting the minor to perform the prohibited conduct or encouraging the minor to perform the prohibited conduct.
The Court understood the statute to contain two theories on which a jury could find guilt – one theory that involved specific intent of the defendant and an alternative theory that would contain general intent.
First, the statute requires a specific intent regarding the accosting of a minor. This means the prosecution must show a defendant intended the minor to actually engage in a sexual activity to be guilty under the accosting section of the statute.
Second, the statute was silent as to the intent of a person charged with a violation of encouraging a minor to engage in the prohibited conduct. The Court read into the silence as requiring a general intent to encourage, instead of dispensing with an intent requirement.
Because there were dual theories of guilt, one with specific intent and one with general intent, the Court believed the legislature wished to criminalize a wide range of behavior as it related to predatory sexual behaviors against children.
The Court’s Decision
The Court believed there was a problem with the jury instructions provided by the Court to the jury. Specifically, the Court found the jury instructions failed to instruct on the specific intent theory of the crime while the Court did properly instruct on general intent theory of the crime. The jury found the Defendant guilty on one theory of guilt (the one provided to the jury) and not the other theory of guilt. Whether the Court had addressed both theories of guilt was irrelevant, the Court said, because the jury found guilt on the addressed theory of guilt.
Nevertheless, the Court ultimately said the failure of the Court to address the jury with the proper instructions was irrelevant due to the overwhelming guilt of the defendant (the jury found guilt on the theory provided).
The Court calls this “harmless error.” That is a situation in which the Court acknowledges there was an error, but says the defendant was so guilty the error didn’t matter.
In addition, the Court found that Defendant’s Counsel waived any error because Counsel repeatedly expressed satisfaction with the jury instructions. This was a relinquishment of the right to argue about it later, the Court said.
Takeaways From the Case
This case contains an analysis of the jury instructions of the charge of accosting a minor child. Specially, we know that the statute contains two parts. First, a theory of guilt based on specific intent – accosting a child. And second, a theory of guilt based on general intent – encouraging a child. The Court will instruct the jury on both theories at trial and a jury can find guilt on either theory.
The two standards and two types of intent mean there is a broad range of activities that could fall under the prohibited conduct of MCL 750.145a.
Sam Bernstein is a Criminal Defense Attorney in Ann Arbor and Ypsilanti.
ArborYpsi Law is located at 4158 Washtenaw Ave., Ann Arbor, MI 48108.
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