Sufficiency of the evidence; Child sexually abusive activity (CSAA); MCL 750.145c(2); Knowledge that the decoy was a child; Failure to take reasonable precautions to determine age; OV 19; MCL 777.49(c); Denial of culpability; People v Deweerd; Ineffective assistance of counsel; Failure to raise entrapment; People v Jade; Unlawful-inducement prong; Reprehensible-conduct prong; Prejudice

In an order, the court granted reconsideration and vacated its prior opinion. It issued a new opinion holding that defendant-Nowicki received ineffective assistance of counsel because trial counsel failed to raise entrapment as a defense. He was convicted of one count of CSAA after a police sting in which an officer created a Grindr profile representing the decoy as 18, using an adult’s photograph. Defendant arranged to meet the decoy for sexual activity after the decoy sent messages suggesting he was younger and eventually stated “15.” On appeal, the court first concluded that sufficient evidence supported the conviction. Viewed in the prosecution’s favor, “[t]aken as a whole, the jury could reasonably infer that Nowicki either knew or should reasonably have known that he was arranging to engage in sexual acts with a child.” It also concluded that the jury could find defendant failed to take reasonable precautions because he relied solely on the profile age despite knowing Grindr did not verify ages and that underage users could access the app. As to sentencing, the court held that OV 19 was improperly scored at 10 points based on defendant’s evasive statements to police because “[t]hose statements . . . amount to nothing more than a denial of culpability for the offense.” Turning to ineffective assistance, the court found both deficient performance and prejudice. Applying Jade, it determined that the facts implicated both entrapment prongs where the police profile presented an adult, defendant initially pursued lawful adult sexual activity, and the decoy introduced the underage element through ambiguous language and then escalated the encounter. Emphasizing that “‘police must detect crime, not manufacture it,’” the court concluded that the operation involved “the manufacturing of a crime” because police “introduced all criminal elements and induced—using ambiguous language—conduct that the suspect had not shown a willingness to commit.” The court did not itself find entrapment as a matter of law. On remand, the trial court must decide that issue. If defendant was entrapped, it must set aside the conviction and dismiss the case. If not, the conviction stands and the trial court must resentence him. Conditionally reversed and remanded.