Background
A police officer created a fictitious Grindr profile for “Joy_Boy,” listing the user as 18 and displaying an obscured photograph of a 20-year-old officer. Aaron James Nowicki contacted the profile and discussed meeting for sex. During the conversation, the decoy said he could not drive, described himself as younger and inexperienced, and sent the standalone message “15.” Nowicki continued the sexual discussion, traveled to the designated hotel, and was arrested.
A jury convicted Nowicki of one count of child sexually abusive activity. He maintained that he did not see the “15” message and had relied on the profile’s stated age. On appeal, he challenged the evidence, the statute’s constitutionality, the scoring of offense variable 19, and trial counsel’s failure to raise entrapment.
The Court’s Holding
The Court of Appeals held that sufficient evidence supported the conviction. Viewed favorably to the prosecution, the full conversation permitted the jury to find that Nowicki knew or reasonably should have known the decoy purported to be a child. The jury also could find that relying solely on the profile’s stated age—despite signals suggesting the profile was inaccurate—was not a reasonable precaution. The court further rejected Nowicki’s vagueness and overbreadth challenges to the statute.
The court nevertheless held that counsel rendered ineffective assistance by failing to raise entrapment before trial. Applying the Michigan Supreme Court’s clarified framework, the panel concluded there was a reasonable probability an entrapment defense would have succeeded because police presented the profile as an adult, introduced the underage element only after Nowicki pursued a lawful adult encounter, used ambiguous language to suggest the decoy was 15, and escalated the exchange into criminal conduct. The panel conditionally reversed and remanded for the trial court to decide entrapment after allowing both sides to present evidence.
The court also held that the trial court improperly assessed 10 points for offense variable 19 because Nowicki’s evasive statements to police amounted only to denying culpability, not interfering with the administration of justice. If the trial court rejects entrapment on remand, the conviction remains in place but Nowicki must be resentenced under the corrected guidelines.
Key Takeaways
- A police sting may constitute entrapment when officers manufacture the criminal element by converting a proposed lawful adult encounter into an underage encounter.
- Counsel may be ineffective for failing to seek a pretrial entrapment ruling when the undisputed circumstances give that defense a reasonable probability of success.
- A defendant’s denial of culpability, without an additional attempt to redirect an investigation, conceal evidence, or obstruct proceedings, does not support scoring offense variable 19.
Why It Matters
The decision emphasizes that online sex stings must detect existing criminal intent rather than create it through ambiguous age disclosures and police-driven escalation. It also underscores the importance of litigating entrapment before trial because the issue is decided by the court and, if established, requires dismissal.
The remand does not itself dismiss the charge. The trial court must determine whether Nowicki was entrapped; dismissal follows only if he proves entrapment. Otherwise, his conviction stands and the court must resentence him without the erroneous offense-variable score.