FILED JULY 26, 2011
S T A T E O F M I C H I G A N
SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,Plaintiff-Appellant/CrossAppellee,
v No. 141695 EDWARD MICHAEL KOWALSKI,Defendant-Appellee/CrossAppellant.

BEFORE THE ENTIRE BENCH
M ARY B ETH K ELLY , J. In this case, we must determine whethe r 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 Inte rnet to accomplish the same, MCL 750.145d,
should be overturned on the basi s 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 e rroneous. However, we conclude that, regardless of whether
defendant waived review of the jury instructions, the in structions did not result in Michigan Supreme Court Lansing, Michigan 

# Opinion Chief Justice: Robert P. Young, Jr. Justices: Michael F. Cavanagh Marilyn Kelly Stephen J. Markman Diane M. Hathaway Mary Beth Kelly Brian K. Zahra2 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 Ya hoo! chat room under the screen name “mr_ltr_nmidmi_007” and engaged in a conversa tion with a person he believed to be a 15-year-old girl indentifying herself as “key anagurl.” Before he asked keyanagurl her age, defendant stated that he was “very hor ny” and asked keyanagurl if she wanted to role-play. Defendant went on to say that he enjoyed different t ypes of sexual activities, including “role, phone, cyber” and “real!” In fact, keyanagurl was Vincent Emrick, an undercover police officer. Upon learning that keyanagurl was s upposedly a 15-year-old girl, defendant continued the chat. Defendant informed keya nagurl that he had a “great pool in the woods” with “no neighbors in sight,” and aske d if she had a boyfrie nd. Defendant told keyanagurl he was divorced, but explained th at 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 : ya3 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 exclai med, “oh baby sweet.” Defenda nt indicated that he was only wearing boxer shorts and repeatedly as ked 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 wa s broken, he asked if she had a cellular phone or whether she could enable his microp hone 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 engage d in the followi ng exchange: Defendant : i lov to fantasize about you ng women gets me rock hard keyanagurl : good * * * Defendant : i lov oral keyanagurl : its ok Defendant : esp [giving] After keyanagurl refused his last atte mpt 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 was4 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 ch atted 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 weathe r for skinny dipp[ing] .” Defendant also
mentioned that he had a hot t ub. During the third chat, keya nagurl 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 st ated, “cant wait to get home and skinny dip” and “i love being naked.” Defe ndant 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 part ygoers were all drunk, defendant stated “yup” and remarked, “we needed a sexy waitress like you.”5 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! acc ount. However, Emrick observed a computer
monitor in the home and confronted defenda nt with a local newspaper article that featured a story about how defe ndant used the Intern et 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 ro ad in a rural locati on. Police officers responded to the call and collected the parts. At trial, prosecution witness Jasmine De Weese 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 he r 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 DeWe ese’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.6 Defendant did not present any evidence and instead move d for a directed verdict,
which the trial court denied. During closing argument, th e prosecutor stat ed that the accosting a minor statute, MCL 750.145a, required a finding th at defendant “did accost, solicit, or entice.” The prosecu tor 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 ha ve to prove.” In her rebuttal, the prosecutor stated that “[a]ccosting a minor on the internet for the purpo ses I’ve described in the statute, that’s illegal.” The prosecutor noted th at “[t]he law says accost, en tice or solicit with a certain intent. . . . It says you accosted, enticed or so licited with the intent to result in an act.” She argued that defendant had tried to entice and induce keyanagurl. Defense counsel responded in closing ar gument that defendant had not accosted, enticed, solicited, or encouraged keyanagur l to commit any proscr ibed 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 acco sting a minor under MCL 750.145a. Rather, defense counsel asse rted that a conviction under MCL 750.145a must be supported by “some kind of an action, . . . some ki nd of an act in furtherance – not just words.” Following closing arguments, the trial court instructed th e 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 reasonabl e doubt. First, that the Defendant7 believed he was engaging with a child under the age of 16 years. Second, that the Defendant has then the intent to induce that pe rson who he believed to be under 16 years to commit an immoral act or an act of sexual intercourse or an act of gross indece ncy 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 th e court for the definition of “ac cost,” and the court provided the following dictionary defin ition: “to approach and speak to, greet first before being greeted, especially in an intrusive way.” De fense 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 ne w trial, arguing that insufficient evidence supported a finding of the actus reus element of MCL 750.145a. Defendant also moved
for a Ginther 2 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 MC L 750.145a because the instruction entirely

1 There is no standard jury instruction for MCL 750.145a.

2 People v Ginther , 390 Mich 436; 21 2 NW2d 922 (1973).

3 People v Kowalski , unpublished opinion per curiam of the Court of Appeals, issued April 27, 2010 (Doc ket No. 288855).8 omitted the actus reus of the offense. 4 The Court of Appeals c oncluded that the error was not harmless beyond a reasonable doubt becaus e it was impossible to tell whether the jury would have reached the same result had it been properly inst ructed. 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 th e Court of Appeals erred by concluding that the trial court committed instructional error warranting reversal. Before de termining whether the jury instructions were erroneous, we must first construe the mean ing and elements of accosting a minor, MCL 750.14 5a. We review de novo questions of statutory

4 “ Actus reus ” is defined as “[t]he wrongful deed that comprises the p hysical components of a crime and that genera lly 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 or der, we directed the parties as follows: The parties shall include among the i ssues to be briefed: (1) whether the Court of Appeals erred when it dete rmined (a) that the trial court’s jury instructions failed to a pprise 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 wa s not harmless beyond a reasonable doubt; (2) whether the defendant waived the instructional error, and if so, whether his attorney prov ided ineffective assistan ce of counsel; and (3) whether, when viewed in a light most favorable to the prosecution, the evidence presented at trial was sufficien t to enable a rational jury to find that the actus reus of the charged offense wa s proven beyond a reasonable doubt.9 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 considerati on of the statutory language itself. 8 Statutory language
must be read in the context of the act as a whole, giving ev ery word its plain and ordinary meaning. 9 When the language is clear and un ambiguous, 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 pers on 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 w ith the intent to in duce or force that child or individual to co mmit an immoral act, to s ubmit 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 langua ge, this provision states: A person who accosts, entices, or solic its a child . . . with the intent to induce or force that ch ild . . . to commit an immo ral act, to submit to an act of sexual intercourse or an act of gr oss 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).10 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 th e disjunctive term “or,” it is cl ear 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 do ubt that the defendant (1) accosted, enticed, or solicited (2) a child (or an indi vidual whom the defendant believed to be a child) (3) with the intent to induce or force that ch ild to commit (4) a proscribed act. Alternatively, a defendant is guilty of acco sting a minor if the prosecution proves beyond a reasonable doubt that the defendant (1) enc ouraged (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 Legisl ature meant to di spense with the mens rea requirement. When interpreting a criminal statut e that does not have an explicit mens rea element, we do not construe the Legisl ature’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-Citement11 intention that the mens rea element of the encourages pr ong be the intent to do the physical act of encouraging. The verb “enc ourages” contemplates intentional conduct by a defendant. To “encourage” means “to inspire w ith courage, spirit, or confidence[,] . . . to stimulate by guidance, approval, . . . to promote; foster.” 13 Thus, the act of encouragement is the ev il in itself, and an accused, by co mpleting 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 co mmitted acts of accosting, enticing, or soliciting, the statute requires the prosecution to demonstrate a specific intent to induce or force the child to commit proscr ibed 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). Gene rally, with the excepti on of strict liability crimes, there can be no crime without a crimin al intent. Inferring some type of guilty knowledge or intent is necessary wh en a statute is silent regarding mens rea because without it innocent conduct co uld 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 dictiona ry definitions to discern the Legislature’s intent. People v Denio , 454 Mich 691, 699; 5 64 NW2d 13 (1997).

14 People v Getchell , 6 Mich 496, 504 (1859) (distinguis hing between the intent that must be shown for a specific intent crime a nd that for a general intent crime).

15 “‘[T]he distinction between specific intent a nd 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 th e 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 ).12 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 re quires 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 75 0.145a, 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 de termine whether any error occurred. 17
A criminal defendant has a c onstitutional right to have a jury determine his or her guilt from its consideration of every esse ntial element of the charged offense. 18 A defendant is thus “‘entitled to have all the elem ents of the crime subm itted 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; 7 12 NW2d 419 (2006).

17 People v Serra , 301 Mich 124, 132; 3 NW2d 35 (1942) (“The char ge 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; 78 3 NW2d 67 (2010), quoting People v Pepper , 389 Mich 317, 322; 206 NW2d 439 (1973) (alteration in Feezel ).13 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 inst ructed 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 reasonabl e 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 pe rson who he believed to be under 16 years to commit an immoral act or an act of sexual intercourse or an act of gross indecen cy 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 in struction was correct with respect to the encourages prong of the offe nse, it erroneously omitted the actus reus element of the “accosts, entices, or solicits” prong of the offens e. The fact that the trial court properly instructed on the encourages pron g of the offense did not negate this instructional error.
This is because we do not—a nd cannot—know whether the ju ry convicted defendant on the basis of the accosts, entices , or solicits prong of the offe nse 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 18 27; 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 presen ted to the jury the issues to be tried and sufficiently protected the rights of defendant”); People v Clark , 274 Mich App 248, 255-256; 73 2 NW2d 605 (2007).14 entices, or solicits prong, the instruction wa s 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 counse l here explicitly and repeatedly approved the instruction, defendant has wa ived the error. This Court has defined “waiver” as “the intentional relinquish ment 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 ac costing 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 219.15 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 cour t dismissed the jury, and defense counsel expressed his approval of the jury instructions generally. The trial court again read the proposed instruction for acco sting 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. Defe nse counsel for the four th 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 e rroneous instructions,
and there is no error to review. 26

26 Id . The Court of Appeals erred when it faile d to address the prosecution’s claim that defendant waived the instruc tional error. The partial concurrence suggests that we “hastily presume that a waiver occurred in this case simp ly because de fense 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 id entical to his own propo sed instructions, and (3) then reaffirmed his approval three more ti mes. Thus, the record clearly demonstrates waiver—an intentional relinquishment of a known right—because counsel’s affirmative statements were repeated, express, and un equivocal and concerned instructions that counsel had more than ample time to fully review and consider.16 Defendant, however, argues that defens e counsel merely forfeited the error
because counsel did not state that he “approved” of the instructions. 27 The distinction defendant attempts to make be tween counsel stating, “I appr ove 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 tria l and then use that e rror 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 cons titutional error for plain erro r affecting a defendant’s substantial rights. 30 In order to avoid forfeiture unde r 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 cons istently held that an affirm ative statement that there are no objections to the jury in structions 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 NW 2d 662 (2010); see also Carter , 462 Mich at 214 (“Counsel may not harbor e rror 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 harm less-error test applies to preserved constitutional errors. See Carines , 460 Mich at 774. In th is case, defendant did not preserve his claim of constitutional error for review; rather, as we have concluded, he waived any error. Additionally, defendant impr operly contends that the jury instructions amounted to structural error wa rranting 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 stru ctural in nature17 must establish (1) that an erro r occurred, (2) that th e 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 wa rranted only when th e 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 proc eedings” independent of the
defendant’s innocence.’” 32
Defendant has established that an instruc tional error occurred and that the error is plain and obvious on the reco rd. However, defendant cannot establish that this error affected his substantial rights. We have previo usly held that jury in structions that were somewhat deficient may nonetheless, when view ed 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 th e instructional error. 33 If the evidence related to the missing element was overwhelming and uncontested, it ca nnot be said that th e 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 th e 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 offens e did not affect the defendant ’s substantial rights because the jury would not have convicted the defe ndant without concluding that the defendant committed the acts constituti ng the omitted element).

34 See Neder , 527 US at 17 (“[W]here a reviewin g court concludes beyond a reasonable doubt that the omitted element was uncont ested and supported by overwhelming18 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 ch arge were defendant’s online exchanges with keyanagurl. These chat s were admitted into evidence , without any objection, and defendant, during opening and closing argum ent, conceded that these conversations
occurred. The content of the exchanges established beyond any reasonable doubt that the chats constituted immoral, grossly inde cent, depraved, or delinquent acts. 36 evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is prope rly found to be harmless.”).

35 Furthermore, review of the record as a w hole indicates that the jury was aware that MCL 750.145a required th e prosecutor to prove that de fendant committed one of the acts proscribed by the statute, which included en couraging 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 addi tion, during closing arguments, both parties consistently asserted that MC L 750.145a requi red proof that defendant committed an act. The prosecutor info rmed the jury that it had to find that defendant accosted, enticed, solicited, or encouraged keyanagurl. The prosec utor 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 cert ain intent.” The prosecutor argued that defendant tried to entice or indu ce keyanagurl. Defense counsel informed the jury that it had to find that defendant co mmitted an act. Finally, after deliberations began, the jury requested that the trial court provide a legal definitio n of “accost,” and the trial court honored that request.

36 Although there is no Mich igan 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 pres ence of the minors would constitute the offense of procuring, or atte mpting to procure, an act of gross indecency . . . .” (Emphasis added.)19 At the outset, defendant invited keyanagurl to engage in role-playing or cybersex. After learning keyanagurl’s age, defendan t continued to guide the course of the conversation in a manner intended to height en the sexualized natu re of the chats. Defendant asked keyanagurl if she was “horny” and indicated that he was; defendant asked keyanagurl for her phot ograph and upon receiving it, i ndicated that he was sexually aroused and referred to physical attributes of his genitalia; and defendant told keyanagurl that he enjoyed fantasizing a bout 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 th ose 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 need ed to have cybersex with someone and that he would soon masturbate. In subsequent ch ats, defendant spoke of a “big orgy,” skinnydipping, 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 woul d have allowed a rational juror to
conclude that defendant’s acts were intended to engage ke yanagurl 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 cybe rsex 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 photogr aphs of sexually20 undeveloped girls. Furthe r, a jury could have inferre d from the testimony of the
homeowner who lived in the ar ea that, after Emrick ques tioned defendant, defendant destroyed his computer and discarded it in a s ecluded, rural location. This, coupled with defendant’s dishonesty about ha ving home Internet access, woul d have allowed a jury to infer that defendant evinced a consciousness of guilt. 37 Taking all this evidence together, it is clear th at the evidence of the actus reus under either prong of the offense was ove rwhelming and uncontroverted. The chats constituted highly sexualized conversations, wh ich were by themselves immoral, grossly indecent, delinquent, or depraved acts. Th ese 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 as ked for her phone number, and was continuously objectified in a se xual manner, would have given an actual child a distorted and unhealthy view of human re lationships and woul d have involved her in a distinctly antisocial set of behaviors. As the prosecut or 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, “i n and of itself is a delinquent act for a minor to be engaging in . . . .” We agree w ith the prosecutor that, according to “common ev eryday 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 con ceal involvement in a crime ar e 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 fro m evidence of lying or deception.”).21 actus reus of accosting a minor under either pron g 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 tria l 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 doi ng so, he accosted, enticed, solicited, or encouraged a child to commit an immoral, grossly indece nt, delinquent, or depraved act within the meaning of those te rms 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 wa ived review of the in structional error, the error did not affect his substantial rights, defendant was not denied the effective assistance of counsel, and ther e was sufficient evidence to support his convictions. We

38 We also reject defendant’s arguments relate d to ineffective assistance of counsel and sufficiency of the evidence. To establish that he was denied the effective assistance of counsel, “defendant must sh ow that there is a reasona ble probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v Washington , 466 US 668, 694; 10 4 S Ct 2052; 80 L Ed 2d 674 (1984). Even assuming that defense counsel acted defi ciently under an objective standard of reasonableness when he agreed to the jury instructions, de fendant cannot establish that there is a reasonable probability that, but for defense counsel’s failure to object, the result of the proceeding would have be en different. For the same reasons that we conclude that defendant failed to show outc ome-determinative prejudice under the plain-error standard discussed earlier in this opinion, we also conc lude that defendant faile d to show that there was a “reasonable probability that but for co unsel’s unprofessional errors, the result of the proceeding would have been different.” Id . From the same ev idence, we likewise conclude that sufficient evidence sup ported defendant’s convictions under MCL 750.145a and MCL 750.145d(1)(a).22 therefore reverse the judgment of the Court of Appeals and remand for reinstatement of the judgment of sentence pursuan t to the jury convictions.

Mary Beth Kelly Robert P. Young, Jr. Stephen J. Markman Diane M. Hathaway Brian K. ZahraS T A T E O F M I C H I G A N
SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,Plaintiff-Appellant/CrossAppellee,
v No. 141695 EDWARD MICHAEL KOWALSKI,Defendant-Appellee/CrossAppellant.

C AVANAGH , J. ( concurring in the result ). I agree with the majority’s conclusion that the trial court improperly instructed the jury on the charged offense, MC L 750.145a. Although I do no t believe that the evidence against defendant was “overwhelming,” I conc ede that, under the facts of this case,
defendant cannot establish th at 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 majo rity’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 arguabl y unpreserved constitutional erro r 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) (C AVANAGH , J., dissenting), quoting Bailey v Jones , 243 Mich 159, 162; 2192 NW 629 (1928) (emphasis added). Applying th is definition, the United States Court of Appeals for the Third Circuit has concluded that the threshold qu estion in determining whether an issue capable of being waived has indeed been waived is “whether the appellant who failed to object in the trial c ourt 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) (L EVIN , 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 cons idered’ it, and then affirma tively 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 give n 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 deci sion to abandon the . . .3 Although some federal courts have concluded otherwise, see, e.g., United States v Gonzalez , 319 F3d 291, 298 (C A 7, 2003), in my view, th e aforementioned analysis is persuasive and consistent with the gene rally 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 th at “[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 el ement 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 defendan t’s right to appellate review of an instructional error is not summarily foreclosed simp ly because trial counsel mech anically 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 th e instruction misstated the law. Rosa , 399 F3d at 291. In light of this caselaw, I would not has tily presume that a waiver occurred in this case simply because defe nse 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), overru led on other ground by People v White , 390 Mich 245; 212 NW2d 222 (1973), overrule d 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 Circu it did not find a “knowing waiver situation” despite discussions regarding the jury instructions and despite defense counsel’s (1) st atement that he had “looked at” the proposed instructions, that they could apply to his client, and that he had no add itions to or modifications or4 Nevertheless, I concur with the major ity’s result because I agree with the majority’s conclusion that defendant cannot es tablish that he is enti tled 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 ex tend plain-error review to unpreserved constitutional errors and instead would subject such errors to harm less-error analysis.
See Grant , 445 Mich at 554-557 (L EVIN , J., concurring); People v Carines , 460 Mich 750, 775-783; 597 NW2d 130 (1999) (M ARILYN K ELLY , 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 pr eviously stated, th e 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 prejud ice “seems to be an anomaly th at 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 pos ition 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 Michig an. For this reason, I concur only in the result reached by the majority opinion.

Michael F. Cavanagh Marilyn Kelly

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