Background
Nowicki was convicted by a jury of child sexually abusive activity after a police sting operation on Grindr. An officer created a fictitious profile for “Joy_Boy” that listed the user as 18 and displayed an obscured photograph of a 20-year-old officer. After Nowicki initiated a conversation about a sexual encounter, the decoy said he could not drive, described himself as younger and inexperienced, and sent the standalone message “15.” Nowicki continued the sexually explicit exchange, traveled to the decoy’s hotel, and was arrested.
Nowicki maintained that he did not see the “15” message and had relied on the profile’s stated age. Police found no child-sexually-abusive materials during searches of his devices and home. On appeal, Nowicki challenged the sufficiency of the evidence, the constitutionality of the governing statute, and his trial attorney’s failure to raise entrapment.
The Court’s Holding
The Court of Appeals held that sufficient evidence supported the conviction. Viewed in the prosecution’s favor, the full conversation permitted a rational 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 unverified age—despite the decoy’s messages and Nowicki’s knowledge that Grindr users could misstate their ages—was not a reasonable precaution. The court further rejected Nowicki’s vagueness and overbreadth challenges to the statute.
The court nevertheless reversed because trial counsel rendered ineffective assistance by failing to raise entrapment before trial. Applying the Michigan Supreme Court’s clarified entrapment framework, the panel concluded there was a reasonable probability that an entrapment defense would have succeeded under either the unlawful-inducement or reprehensible-conduct prong. Police had created an adult profile, waited without a specific target, and then used vague language to transform a proposed lawful adult encounter into alleged criminal activity involving a minor.
The panel did not hold that Nowicki was entrapped as a matter of law because the trial court had not decided that issue and the prosecution had not had an opportunity to present opposing evidence. It reversed the conviction and remanded for the trial court to decide entrapment under the clarified framework; if the court rejects that defense, the case may proceed to a new trial.
Key Takeaways
- A decoy’s messages, considered together and in context, supplied sufficient evidence that Nowicki knew or should have known the purported participant was under 18.
- Reliance on an unverified adult dating-app profile may not constitute reasonable age precautions when later communications suggest that the user is a minor.
- Counsel was ineffective for failing to seek a pretrial entrapment ruling where police introduced the criminal element through an untargeted adult-profile sting and ambiguous age-related language.
Why It Matters
The decision emphasizes that police may detect existing criminal intent but may not manufacture a new or more serious offense by introducing its essential criminal elements. Adult-platform sting operations are particularly vulnerable to entrapment challenges when officers initially present a decoy as an adult and only later introduce minority through vague or ambiguous statements.
The opinion also underscores that entrapment must be raised and resolved by the trial court before trial. Defense counsel’s failure to pursue that potentially dispositive remedy can constitute prejudicial ineffective assistance even when the prosecution presented sufficient evidence for a jury conviction.