TRAVERSE CITY — A recent decision from the Michigan Court of Appeals could soon offer a clean slate for a registered sex offender as he aims to again bring his criminal case before a jury.
Michael Gary Cohen, 34, of Traverse City, will have another shot at a jury trial after state justices this week overturned his conviction and ruled witness testimony solicited more than a year ago could have wrongly swayed jurors into convicting him of criminal sexual conduct in the first place.
“The evidence gave rise to a significant danger that the jury would … conclude that even if the defendant was not guilty of the present offenses, he was a person of poor character,” according to an appeals opinion filed this week. “The trial court abused its discretion in admitting the testimony.”
Cohen in 2016 was convicted on two of five initial misdemeanor counts of fourth-degree criminal sexual conduct following accusations he groped multiple employees — namely a 15-year-old girl — while he worked as a manager at the Dairy Queen inside the Grand Traverse Mall.
The recent decision effectively reverses that conviction as he heads toward another trial. Appellate attorney Robyn Frankel said prosecutors have about two months to file a motion with Michigan’s Supreme Court before they’ll need to make a decision regarding how to proceed with the case.
“We don’t know what’s going to happen,” she said. “We’re obviously pleased with the outcome.”
Prosecutors argued Cohen left employees feeling anxious and uncomfortable with his unapologetic and garish behavior. His former attorney Andrew Bossory acknowledged the level of workplace professionalism was low at the Dairy Queen but argued the repeated touching wasn’t criminal.
Cohen was ultimately sentenced to eight months in Grand Traverse County’s jail and 30 months of probation. His name was subsequently added to Michigan’s Sex Offender Registry — a “Tier 2” listing that could soon be removed from the catalog unless he’s again found guilty at another, yet-to-be scheduled trial.
“I guess I understand why they did what they did,” said Assistant Prosecuting Attorney Noelle Moeggenberg, noting it’s “too early” to tell what effect the appeal could have, should Cohen again face a jury. “The arguments that we made for admitting other-acts evidence were fairly solid.”
A pair of teenage girls previously testified how Cohen would touch them sexually at the eatery where they worked. He was found guilty on two counts stemming from accusations he repeatedly pressed his 275-pound frame against a young girl’s body while she worked inside the cramped ice cream shop.
Moeggenberg during the trial introduced former employees as additional witnesses amid attempts to show Cohen’s actions weren’t accidental but rather part of an intentional scheme to sexually touch female employees. She maintained that Cohen engaged in “grooming” behavior as manager.
The testimony, however, didn’t indicate that Cohen had made other sexual advances toward his employees. The girls talked about how Cohen years ago had asked a 16-year-old girl on a date but denied allegations that their former manager had touched or attempted to touch his employees.
“The witnesses did not offer the testimony represented by the prosecutor,” court records state. “There was no pattern or scheme described by the witnesses that had any significant probative value to the material issue whether (Cohen) intentionally touched the victim’s for a sexual purpose.”
Cohen in June will appear for a status conference in 13th Circuit Court as his case moves closer to another trial. He declined to comment about the case on Wednesday. Calls to Bossory were not returned.
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