Opinion
No. 350341
05-06-2021
PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Wilson Thompson BYCZEK, Defendant-Appellant.
Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, and Melissa Powell, Prosecuting Attorney, for the people. Dana B. Carron, Detroit, for defendant.
Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, and Melissa Powell, Prosecuting Attorney, for the people.
Dana B. Carron, Detroit, for defendant.
Before: Boonstra, P.J., and Gadola and Tukel, JJ.
Gadola, J. Defendant appeals on delayed leave granted his convictions of threatening an act of terrorism, MCL 750.543m(1), and malicious use of a telecommunications service, MCL 750.540e. Defendant was sentenced as a fourth-offense habitual offender, MCL 769.12, to serve a prison term of 7 to 30 years for making a terrorist threat, and to serve a concurrent sentence of 68 days for malicious use of a telecommunications service, with credit for 68 days served. We affirm. I. FACTS
This case arises from a statement defendant made to a sheriff's deputy during a telephone conversation. On October 12, 2017, defendant called the Iron County Sheriff's Department to obtain a police report. Defendant had been seriously injured two years earlier while performing excavation work at Lac O'Seasons Resort in Iron River, sustaining a broken hip, a crushed pelvis, and dislocation of his other hip. Although not diagnosed with a brain injury, family members testified that defendant's injuries had affected his memory and ability to work. At the time that defendant called the Iron County Sheriff's Department, defendant had a civil lawsuit pending against the resort regarding his injuries and had been urged by his attorney to obtain the police report regarding the 2015 accident.
Iron County Sheriff's Deputy Adam Schiavo testified that he answered the telephone call from defendant while he was on duty on October 12, 2017. Deputy Schiavo testified that defendant had identified himself and explained that he had been injured at Lac O'Seasons Resort in 2015, and that he had not been able to recover money from the resort. Deputy Schiavo testified that defendant had asked for a police report from the 2015 accident, and Schiavo had told defendant that he needed to file the proper paperwork. According to Schiavo, defendant had seemed agitated and was speaking very quickly and "rambling." Schiavo testified that defendant had indicated he was on the west coast but was on his way back to Michigan; that if he did not get the money owed to him, he was going to return to Michigan and "take care of it himself[;] and that it was going to be hash tag Las Vegas." Deputy Schiavo testified that he did not remember at what point defendant had said that he would "take care of it myself," and agreed that defendant could have been referring to completing the paperwork necessary to obtain the police report. Schiavo testified that defendant hung up after he said "hash tag Las Vegas."
Deputy Schiavo is the only person who heard the telephone call; the call was not recorded, and no transcript or notes from the call were made.
The word "hashtag" is defined in connection with its use on social media websites as "a word or phrase preceded by a hash mark (#), used within a message to identify a keyword or topic of interest and facilitate a search for it[.]" A secondary definition is "a word or phrase preceded by a hash mark (#) or by the word hashtag , used to add wit or emphasis to a spoken or written statement." Dictionary.com, hashtag < http://www.dictionary.com/browse/hashtag> (accessed December 7, 2020) [https://perma.cc/DXZ2-LB67].
Less than two weeks before the telephone call, a widely publicized shooting had occurred in Las Vegas. Deputy Schiavo testified that when defendant said "hash tag Las Vegas," he determined that defendant was referring to the Las Vegas shooting, and he considered defendant's statement to be a threat directed to Lac O'Seasons Resort. Schiavo testified that defendant did not specifically mention the Las Vegas shooting, did not say that he was going to shoot anyone, did not indicate that he had a gun or other weapon, and did not state that he was angry with anyone. After locating the source of defendant's call as Spokane, Washington, Schiavo determined that there was no immediate danger to Lac O'Seasons Resort. Schiavo contacted Randy and Nancy Schauwecker, the managers and part-owners of the resort, and informed them of the telephone call and that it constituted a possible threat.
On October 1, 2017, a gunman fired over 1,100 rounds of ammunition from a hotel room into a crowd attending a concert in Las Vegas, Nevada, killing 58 people and injuring more than 800 others. History.com, Gunman Opens Fire on Las Vegas Concert Crowd, Wounding Hundreds and Killing 58 , < https://www.history.com/this-day-in-history/2017-las-vegas-shooting> (accessed December 7, 2020) [https://perma.cc/SDS9-EFCT].
Nancy Schauwecker testified that she and her husband, Randy, manage and live at Lac O'Seasons Resort and that they own several of the buildings at the resort. Nancy confirmed that while defendant was doing excavation work at the resort in 2015, the ditch where he was working collapsed and he was seriously injured. She further testified that she had not had any contact with defendant, and that defendant had not directly threatened her or the resort.
Randy Schauwecker testified that he knew defendant before defendant worked at the resort because he had taught defendant as a seventh-grade student. Randy testified that after defendant was injured at the resort, defendant filed multiple claims against the resort and there was a pending lawsuit. Randy testified that defendant had contacted him after the accident and had been polite and apologetic about suing the resort for damages. Randy testified that defendant never directly communicated any threats of terrorism to him.
Defendant's mother, Starr Adank, testified that defendant and his girlfriend, Amery Saylor, had moved to Spokane, Washington in August 2017. On October 11, 2017, she spoke with defendant, who told her he was returning to Michigan. During the conversation, Adank encouraged defendant to call the police to find out if there was a police report regarding the 2015 accident. Adank testified that defendant later told her he called to try to get a police report but had become frustrated talking to the deputy. Regarding defendant's use of the phrase "hash tag Las Vegas," Adank testified that defendant often traveled to Las Vegas and had used that term to mean "I'm going to Las Vegas again." Adank testified that defendant, in fact, went to Las Vegas on November 3, 2017, before he moved back to Michigan.
Iron County Sheriff's Lieutenant Ryan Boehmke testified that he had listened to a phone conversation between defendant and Adank on December 9, 2017. During the conversation, defendant explained that during the October 12, 2017 phone call to the police, he had asked to file a complaint against Lac O'Seasons and had said, "They're going to pay for what they did to me"; "I am coming back to Michigan. I'm going to handle this on my own" or "[h]andle this myself"; and then, before hanging up, he had said, "Now it's hash tag Las Vegas."
Defendant's brother, Todd Byczek, testified that defendant told him that he had made "some kind of threat to Iron County where, you know, a threat for mass shooting and referenced Las Vegas...." Todd also testified that he had gone to Las Vegas with defendant in November 2017, but that the trip had been planned "kind of last second," on or around October 31, 2017.
Todd's wife, Elizabeth Byczek, testified that defendant and Saylor began living with her and Todd in Washington in August or September 2017. Elizabeth testified that defendant was frustrated about his lawsuit against Lac O'Seasons Resort and believed that the resort owed him money. She testified that on October 12, 2017, defendant told her that he had called the Iron County Sheriff's Department; he appeared embarrassed and mentioned that he had lost his temper and made a threat by referring to the recent mass shooting in Las Vegas. Elizabeth testified that, to her knowledge, defendant did not have a trip planned to Las Vegas on October 12, 2017; rather, Elizabeth planned a trip for the two couples to Las Vegas for November on October 30, 2017. The e-mail confirmation of the four plane tickets purchased by Elizabeth on October 31, 2017, was admitted into evidence. Elizabeth testified that she, Todd, defendant, and Saylor had traveled to Las Vegas on November 3, 2017, and returned on November 6, 2017.
FBI Special Agent David Whitlow testified that he had assisted in the investigation and had interviewed defendant. During the interview, defendant had admitted that he had called the Iron County Sheriff's Department on October 12, 2017, and had said "something to the effect of, ‘You don't know what people are thinking, like that guy in Las Vegas.’ " Whitlow testified that defendant had explained that he had been agitated, and in hindsight, he wished he would have chosen his words more carefully. Whitlow conducted a cursory review of defendant's cell phone and bedroom and did not find any weapons or anything that led Whitlow to believe that there was an imminent threat of danger.
After a jury trial, defendant was convicted of threatening an act of terrorism, MCL 750.543m(1), and malicious use of a telecommunications service, MCL 750.540e. The trial court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to serve a prison term of 7 to 30 years for making a terrorist threat and to serve a concurrent sentence of 68 days for malicious use of a telecommunications service, with credit for 68 days served. Defendant now appeals.
II. ANALYSIS
Defendant contends that there was insufficient evidence to convict him under MCL 750.543m(1) of threatening an act of terrorism because the prosecutor failed to present evidence that he made a threat. Defendant similarly contends that there was insufficient evidence to support a conviction of malicious use of a telecommunications service under MCL 750.540e(1)(a). Defendant argues that the jury's conclusion that his use of the phrase "hash tag Las Vegas" was a threat is not supported by the record and therefore is insufficient to support the verdict. We disagree.
A. STANDARD OF REVIEW
This Court reviews de novo a challenge to the sufficiency of the evidence. People v. Speed , 331 Mich. App. 328, 331, 952 N.W.2d 550 (2020). In determining the sufficiency of the evidence, we view the evidence in the light most favorable to the prosecution to determine whether a rational trier of fact could find that the essential elements of the crime were proven beyond a reasonable doubt. See People v. Harris , 495 Mich. 120, 126, 845 N.W.2d 477 (2014). In doing so, we draw all reasonable inferences and make credibility choices in support of the verdict. People v. Oros , 502 Mich. 229, 239, 917 N.W.2d 559 (2018). We also review de novo issues of statutory interpretation. Speed , 331 Mich. App. at 331, 952 N.W.2d 550.
B. THREAT OF ACT OF TERRORISM
The Michigan Anti-Terrorism Act, MCL 750.543a et seq. , provides in § 543m as follows:
(1) A person is guilty of making a terrorist threat or of making a false report of terrorism if the person does either of the following:
(a) Threatens to commit an act of terrorism and communicates the threat to any other person.
(b) Knowingly makes a false report of an act of terrorism and communicates the false report to any other person, knowing the report is false.
(2) It is not a defense to a prosecution under this section that the defendant did not have the intent or capability of committing the act of terrorism.
(3) A person who violates this section is guilty of a felony punishable by imprisonment for not more than 20 years or a fine of not more than $20,000.00, or both. [ MCL 750.543m.]
Section 543b of the act defines the terms "act of terrorism," "dangerous to human life," and "violent felony" as follows:
As used in this chapter:
(a) "Act of terrorism" means a willful and deliberate act that is all of the following:
(i ) An act that would be a violent felony under the laws of this state, whether or not committed in this state.
(ii ) An act that the person knows or has reason to know is dangerous to human life.
(iii ) An act that is intended to intimidate or coerce a civilian population or influence or affect the conduct of government or a unit of government through intimidation or coercion.
(b) "Dangerous to human life" means that which causes a substantial likelihood of death or serious injury or that is a violation of [ MCL 750.349 or MCL 750.350.]
* * *
(h) "Violent felony" means a felony in which an element is the use, attempted use, or threatened use of physical force against an individual, or the use, attempted use, or threatened use of a harmful biological substance, a harmful biological device, a harmful chemical substance, a harmful chemical device, a harmful radioactive substance, a harmful radioactive device, an explosive device, or an incendiary device. [ MCL 750.543b.]
MCL 750.543m(1) was previously challenged as an unconstitutional restriction of free speech in People v. Osantowski , 274 Mich. App. 593, 736 N.W.2d 289 (2007), rev'd in part on other grounds 481 Mich. 103, 748 N.W.2d 799 (2008). This Court concluded that the statute prohibited only statements that are "true threats" and therefore constituted a restriction on free speech that was not unconstitutional. This Court explained:
The decision of this Court was reversed by our Supreme Court only to the extent of the scoring of Offense Variable 20 and its effect on the defendant's sentence. See People v. Osantowski , 481 Mich. 103, 105, 748 N.W.2d 799 (2008).
First Amendment protections are not absolute and the United States Supreme Court has recognized the permissibility of governmental regulation of certain categories of speech without violating an individual's right to free expression, such as statements deemed to comprise "true threats." Virginia v. Black , 538 U.S. 343, 358-359, 123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003).
" ‘True threats’ encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." Id. at 359 . "The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats ‘protect[s] individuals from the fear of violence’ and ‘from the disruption that fear engenders,’ in addition to protecting people ‘from the possibility that the threatened violence will occur.’ " Black , supra at 359-360 , quoting R.A.V. v. City of St. Paul , 505 U.S. 377, 388, 112 S. Ct. 2538, 120 L. Ed. 2d 305 (1992). [ Osantowski , 274 Mich. App. at 602, 736 N.W.2d 289.]
This Court thus held that when MCL 750.543m and MCL 750.543b(a) are read together and according to their plain and ordinary meaning, the statutes are not an unconstitutional restriction of free speech because they prohibit only true threats, i.e., statements that "encompass the communication of a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals," and because "the statutes require the existence of an intent to ‘intimidate or coerce.’ " Osantowski , 274 Mich. App. at 603, 736 N.W.2d 289. This Court also concluded that in proving a terrorist threat or the making of a false report of terrorism under MCL 750.543m, the only intent that the prosecution must demonstrate is the defendant's general intent to communicate a true threat. Id. at 605, 736 N.W.2d 289, citing Black , 538 U.S. at 359-360, 123 S.Ct. 1536 ; see also Buchanan v. Crisler , 323 Mich. App. 163, 189 n. 5, 922 N.W.2d 886 (2018), quoting Black , 538 U.S. at 359, 123 S.Ct. 1536 ("[T]here is no constitutional protection for ‘true threats,’ meaning ‘those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.’ "). This Court observed that generally, whether a statement constitutes a true threat is a question of fact for the jury. Osantowski , 274 Mich. App. at 612, 736 N.W.2d 289.
To summarize, to demonstrate that a defendant is guilty of making a terrorist threat under MCL 750.543m(1), the prosecution must prove that the defendant (1) threatened to commit an act of terrorism and (2) communicated the threat to another person. MCL 750.543m(1)(a). An act of terrorism is a willful and deliberate act that (1) would be a violent felony under the laws of this state, (2) is an act that the defendant knows or has reason to know is dangerous to human life, and (3) is an act that is intended to intimidate or coerce a civilian population or to influence or affect the conduct of government or a unit of government through intimidation or coercion. MCL 750.543b(a). The prosecution is not required to prove that the defendant had the intent or the capability to actually carry out the threatened act of terrorism, MCL 750.543m(2), but the prosecution must prove the defendant's general intent to communicate a true threat; that is, the "communication of a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals," made with "an intent to ‘intimidate or coerce.’ " Osantowski , 274 Mich. App. at 603, 605, 736 N.W.2d 289. In this case, the statement that caused defendant to be charged with threatening an act of terrorism was his statement to Deputy Schiavo that if he did not receive the money he was owed, he was going to take care of it himself and "it was going to be hash tag Las Vegas." The first inquiry is whether the evidence supported the conclusion that defendant threatened to commit an act of terrorism and communicated it to another person. Here, the evidence demonstrates that defendant made the statement to the deputy and thus communicated the statement to another person. The question then is whether the statement, "it's going to be hash tag Las Vegas," was a threat of an act of terrorism. That is, the question is whether the evidence demonstrated that by saying "it's going to be hash tag Las Vegas" defendant communicated that he was going to commit a willful and deliberate act (1) that would be a violent felony under the laws of this state, (2) that he knew or had reason to know was dangerous to human life, and (3) that would be intended to intimidate or coerce a civilian population or to influence or affect the conduct of government or a unit of government through intimidation or coercion.
The concurrence/dissent would interpret this factor to require the extremely nuanced condition that to threaten to commit an act of terrorism a defendant must threaten an act that the defendant intends will intimidate or coerce, rather than intending that the threat itself (the statement that defendant intends to do the act) be the source of the intimidation or coercion. In other words, the concurrence/dissent would hold that the defendant must intend people to fear the threatened actions rather than fear the defendant's threat. The concurrence/dissent therefore observes that "whether defendant's words were a threat isn't precisely the question...." We disagree. Whether defendant can be found guilty of making a terrorist threat depends entirely upon whether the evidence sufficiently demonstrated that defendant's words to Officer Schiavo constituted a threat to commit an act of terrorism, being a threat to do a willful and deliberate act that would be a violent felony under Michigan law, that defendant knew or had reason to know would be dangerous to human life, and that defendant intended would intimidate or coerce a civilian population or influence or affect the conduct of government or a unit of government through intimidation or coercion. Attempting to separate the intended fear of the threat from the intended fear of the threatened action seems an obscure inquiry; as a practical matter, a threat is feared only if the action threatened is feared.
The concurrence/dissent quotes extensively from an analysis of the legislation that led to the enactment of the statute at issue in this case, prepared by the House Legislative Analysis Section, and relies upon that analysis to support its construction of the statute, stating, "It is thus evident that many of my concerns, as expressed in this opinion, were shared by the Legislature when it enacted the legislation in question." That conclusion is unwarranted. As our Supreme Court has advised, "[I]n Michigan, a legislative analysis is a feeble indicator of legislative intent and is therefore a generally unpersuasive tool of statutory construction." Frank W. Lynch & Co. v. Flex Technologies , 463 Mich. 578, 587, 624 N.W.2d 180 (2001). The Supreme Court has further concluded, "In no way can a ‘legislative analysis’ be said to officially summarize the intentions of those who have been designated by the Constitution to be participants in this legislative process.... For that reason, legislative analyses should be accorded very little significance by courts when construing a statute." In re Certified Question from the U.S. Court of Appeals for the Sixth Circuit , 468 Mich. 109, 115 n. 5, 659 N.W.2d 597 (2003). See also In re AGD , 327 Mich. App. 332, 342, 933 N.W.2d 751 (2019) (describing legislative bill analyses as "nothing more than the summaries and interpretations of unelected employees of the legislative branch").
To answer this question, we must consider what the phrase "hash tag Las Vegas" means, which requires the listener to bring some knowledge of popular culture to the conversation to decipher the meaning. The word "hashtag" is defined in connection with use on social media websites to indicate a hash mark (#) followed by a word which facilitates a search for that word on social media. However, a secondary usage in popular culture is to precede a word or phrase with "hashtag" to add emphasis or to make a joke. Therefore, it is plausible that the phrase "hash tag Las Vegas" could be used to mean different things; there is no one meaning.
In this case, however, a widely publicized mass shooting had occurred in Las Vegas less than two weeks before defendant's telephone call to Deputy Schiavo. Defendant's brother, Todd, and Todd's wife, Elizabeth, both testified that after the telephone call defendant told them that he had made a reference to the Las Vegas shooting when talking to Schiavo. The jury therefore reasonably could conclude from this evidence that defendant was referring to the Las Vegas shooting that had occurred two weeks earlier when he used the phrase "hash tag Las Vegas."
Having established that there is evidence to support the conclusion that defendant's statement was a reference to the Las Vegas shooting, the inquiry is whether the evidence supports the jury's conclusion that defendant's reference to the shooting was a threat of an act of terrorism; that is, whether the evidence demonstrated that by referring to the Las Vegas shooting, defendant communicated that he was going to commit a willful and deliberate act (1) that would be a violent felony under the laws of this state, (2) that he knew or had reason to know would be dangerous to human life, and (3) that would be intended to intimidate or coerce a civilian population or to influence or affect the conduct of government or a unit of government through intimidation or coercion. In other words, was defendant's reference to the Las Vegas shooting a threat to copy the Las Vegas shooter?
Schiavo testified that defendant said that if he did not get the money he believed he was owed, then it was "going to be hash tag Las Vegas." One plausible meaning of this statement is that defendant was threatening to copy the actions of the shooter in Las Vegas. Clearly, shooting someone would be a violent felony under the laws of Michigan, and such conduct was no doubt known to defendant to be dangerous to human life. It is unclear whether such conduct would be intended to intimidate or coerce a civilian population or to influence or affect the conduct of the government through intimidation or coercion. According to Deputy Schiavo, defendant told him that he wanted to obtain a police report related to the 2015 incident that had caused his injuries in hopes of prevailing in litigation against Lac O'Seasons Resort. Schiavo testified that when defendant grew frustrated because Schiavo could not produce the report, defendant said that if he did not get the money he believed he was owed, then it was going to be "hash tag Las Vegas." On the basis of this conversation, it is unclear whether defendant's statement was directed at Deputy Schiavo, Lac O'Seasons Resort, or some unidentified person. However, because defendant's statement suggests that the objective of such an act would be to exact vengeance or to retaliate, it is not unreasonable to conclude that the intent of the act would be to intimidate or to coerce either civilians (people at Lac O'Seasons or perhaps a random crowd as occurred in Las Vegas) or the government (Deputy Schiavo or the police generally).
As noted, a jury may draw reasonable inferences from the evidence and determine the weight of those inferences. Oros , 502 Mich. at 239, 917 N.W.2d 559. We conclude that sufficient evidence was presented from which the jury reasonably could infer that defendant threatened to commit an act of terrorism by threatening a willful and deliberate act that (1) would be a violent felony under the laws of this state, (2) defendant knew or had reason to know would be dangerous to human life, and (3) would be intended to intimidate or coerce a civilian population or to influence or affect the conduct of government or a unit of government through intimidation or coercion. MCL 750.543b(a). The prosecution also demonstrated that defendant communicated the threat to another person. MCL 750.543m(1)(a). There was therefore sufficient evidence from which the jury could conclude that the elements of a terrorist threat under MCL 750.543m(1) had been demonstrated.
In addition to these elements, however, the prosecution also was required to demonstrate that defendant's statement was a true threat, meaning that it was the "communication of a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals" made with "an intent to ‘intimidate or coerce.’ " Osantowski , 274 Mich. App. at 603, 605, 736 N.W.2d 289. In this case, defendant made a statement to Deputy Schiavo that suggested that he was threatening an act of violence. Although the statement alone is somewhat cryptic, defendant then clarified the reference when he told other people that he had made a threatening statement to police by referring to the Las Vegas shooting. Defendant thus confirmed that his statement was meant to communicate a serious expression of an intent to commit an act of unlawful violence. That general intent being demonstrated, there was sufficient evidence from which a jury could conclude that the statement was a "true threat." See id. at 612, 736 N.W.2d 289 (stating that, generally, whether a statement constitutes a true threat is a question of fact for the jury). Accordingly, on the basis of the entire record and reviewing the evidence in a light most favorable to the prosecutor, a rational trier of fact could have found that there was sufficient evidence to convict defendant of threatening an act of terrorism. See Harris , 495 Mich. at 126, 845 N.W.2d 477.
Although not yet adopted at the time of trial in this case, M. Crim. JI 38.4(3), adopted August 1, 2020, specifically provides that to prove the crime of making a threat to commit an act of terrorism, the prosecution must prove that the threat "must have been a true threat, and not have been something like idle talk, or a statement made in jest, or a political comment. It must have been made under circumstances where a reasonable person would think that others may take the threat seriously as expressing an intent to inflict harm or damage."
Our conclusion is bolstered by a consideration of federal law, which construes the mens rea to prove a threat in a manner consistent with our opinion in this case. The Michigan Anti-Terrorism Act, passed in the wake of the September 11, 2001 terrorist attacks, largely mirrors the federal statute. For example, the federal statute's definition of "international terrorism" is almost identical to the Michigan definition of terrorism, incorporating "violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State," which "appear to be intended" to "intimidate or coerce a civilian population;" "to influence the policy of a government by intimidation or coercion;" or "to affect the conduct of a government by mass destruction, assassination, or kidnapping." Compare 18 U.S.C. 2331(1) and MCL 750.543b(a). Other definitions within the Michigan statute align with comparable federal definitions. Unlike Michigan's Anti-Terrorism Act, the federal statute does not have one catchall threat provision. Rather, for those offenses for which Congress wished to criminalize threats, it created specific subsections doing so. For example, the offense "[a]cts of terrorism transcending national boundaries," 18 U.S.C. 2332b, the elements of which are very similar to the Michigan statute except for the requirement of crossing international boundaries, provides that "[w]hoever threatens to commit an offense" defined in § 2332b(a)(1), "or attempts or conspires to do so," shall be punished as provided by the statute. 18 USC 2332b(a)(2).
18 USC 2331 does not define a criminal offense. Rather, its definition of terrorism serves as a prerequisite for other actions, such as granting the United States Attorney General primary investigative responsibility over all federal acts of terrorism, 18 USC 2332b(f), and providing a civil remedy for any United States national injured by an act of international terrorism, 18 USC 2333. An almost identical definition, see 18 USC 2332b(g)(5), is provided for the term "[f]ederal crime of terrorism," which applies to the sections defining various terrorism-related criminal offenses. See 18 USC 2332a -2332i.
Compare MCL 750.543b(d) (defining "material support or resources") and 18 USC 2339A(b)(1) (defining the same); MCL 750.543b(c) (referring to the definitions of "harmful biological substance," "harmful biological device," "harmful chemical substance," "harmful chemical device," "harmful radioactive material," and "harmful radioactive device" at MCL 750.200h(f), (g), (h), (i), and (l ) ) with 18 USC 2332a(c)(2)(B), (C), and (D) (defining similar materials in similar ways); 18 USC 2339B(g)(6) (defining the term "terrorist organization" for purposes of the statute prohibiting the provision of "material support ... to ... foreign terrorist organizations," 18 USC 2339B , with MCL 750.543c (defining "terrorist organization" in the same manner)).
Although there are numerous federal threat statutes covering a range of threats, these statutes do not define the words "threat" or "threaten." In Elonis v. United States , 575 U.S. 723, 135 S. Ct. 2001, 192 L. Ed. 2d 1 (2015), the United States Supreme Court interpreted 18 USC 875(c), which criminalized the transmission in interstate commerce of a communication containing a threat to kidnap any person or to injure the person of another; at issue was the mens rea requirement for a violation of the statute. In discussing a "threat," the Supreme Court observed generally that "[t]he parties agree that a defendant under Section 875(c) must know that he is transmitting a communication. But communicating something is not what makes the conduct ‘wrongful.’ Here ‘the crucial element separating legal innocence from wrongful conduct’ is the threatening nature of the communication. The mental state requirement must therefore apply to the fact that the communication contains a threat." Elonis , 575 U.S. at 737, 135 S. Ct. at 2011 (citation omitted).
Similarly, under the federal terrorism statute, it is the threatening nature of the communication that makes it worthy of criminal sanction, which does not and should not require the same mens rea as a completed substantive offense. That is, to constitute a threat for purposes of federal terrorism law, there is no requirement that a defendant have the mens rea of intending to intimidate a particular population or government; the transmission of a threat to commit an act that would have that effect is sufficient. Indeed, if a defendant had the same mens rea required for the substantive offense, it would require only a "substantial step" toward completion of the offense to transform a "threat" into an "attempt." See, e.g., United States v. Mehanna , 735 F.3d 32, 53 (1st Cir. 2013). But threats are categorially different and pose a danger regardless of whether an individual actually intended to carry them out, as long as the threat constitutes a "true threat."
Given the similarity between the federal and Michigan approaches to terrorism and the dangers posed by threats, it is apparent that Michigan's Legislature, in enacting MCL 750.543m(1)(a), intended to address those evils through a lesser mens rea than is required for a complete substantive offense. The construction placed on that statute by the concurrence/dissent would frustrate that purpose. We therefore conclude that the Legislature did not intend to impose the intent requirement that the concurrence/dissent concludes the statute requires, but rather required only a true threat. The evidence here fully met that standard.
C. MALICIOUS USE OF TELECOMMUNICATIONS SERVICES
We also conclude that the record supports the jury's conclusion that defendant was guilty of malicious use of a telecommunications service beyond a reasonable doubt. MCL 750.540e(1)(a) provides:
(1) A person is guilty of a misdemeanor who maliciously uses any service provided by a telecommunications service provider with intent to terrorize, frighten, intimidate, threaten, harass, molest, or annoy another person, or to disturb the peace and quiet of another person by any of the following:
(a) Threatening physical harm or damage to any person or property in the course of a conversation or message through the use of a telecommunications service or device.
"Telecommunications" and "telecommunications service" are defined as
any service lawfully provided for a charge or compensation to facilitate the origination, transmission, retransmission, emission, or reception of signs, data, images, signals, writings, sounds, or other intelligence or equivalence of intelligence of any nature over any telecommunications system by any method, including, but not limited to, electronic, electromagnetic, magnetic, optical, photo-optical, digital, or analog technologies. [ MCL 750.219a(6)(a).]
There is no dispute that defendant used a telecommunications service when he made the October 12, 2017 phone call to the Iron County Sheriff's Department. A trier of fact could reasonably infer that defendant threatened to shoot people, thus threatening physical harm or damage to a person or property. Defendant's brother and sister-in-law testified that defendant stated that he had communicated a threat to the Iron County Sheriff's Department during a phone call by referring to the Las Vegas shooting. A trier of fact could reasonably infer that defendant intended to frighten, intimidate, or threaten another person when he made the statement during the October 12, 2017 phone call. Viewing the evidence in a light most favorable to the prosecutor, a rational trier of fact could have found that there was sufficient evidence to convict defendant of maliciously using a telecommunications service. See Harris , 495 Mich. at 126, 845 N.W.2d 477.
Affirmed.
Tukel, J., concurred with Gadola, J.
Boonstra, P.J. (concurring in part and dissenting in part). I concur in affirming defendant's conviction of the malicious use of a telecommunications service, MCL 750.540e(1)(a). For the reasons that follow, I respectfully dissent, however, from the majority's determination to affirm defendant's conviction of threatening an act of terrorism, MCL 750.543m(1).
With due respect to the majority, it misses the critical issue, in my judgment. And while I appreciate that defendant may have missed it as well, and while I generally respect the party-presentation principle, we should not blindly follow that principle when doing so, as in this case, makes for bad law. See Mack v. Detroit , 467 Mich. 186, 206-207, 649 N.W.2d 47 (2002) (noting that a reviewing court's "ability to probe for and provide the correct solution" on a "controlling legal issue" is not limited by "the parties’ failure or refusal to offer correct solutions to the issue"); see also People v. Carines , 460 Mich. 750, 761-762, 597 N.W.2d 130 (1999) ; Napier v. Jacobs , 429 Mich. 222, 233 n. 2, 414 N.W.2d 862 (1987) (noting that "appellate review might well be the only remedy" for a criminal defendant and that a "malpractice claim based upon ineffective assistance of counsel, for example, could hardly compensate a wrongfully convicted person for undeserved imprisonment in a state prison"). That is particularly true when, as here, the issue is one of statutory interpretation, namely, in this case, determining whether a charged act constitutes a "threat[ ] to commit an act of terrorism" as that term has been statutorily defined by our Legislature. See People v. Walker , 276 Mich. App. 528, 545, 741 N.W.2d 843 (2007) (stating that this Court may overlook preservation requirements when the issue is one of law, the record is factually sufficient, and resolving the issue is necessary to the proper determination of the case).
My concerns are particularly heightened in the current hyperpolitical environment, which reflects an increasing proclivity among some in our society to tarnish anyone who might disagree with them with the moniker of a "terrorist" and who would criminalize any conduct (or perhaps even the thoughts) of such persons as that of a "terrorist." In my judgment, the term "terrorist" has a unique meaning. It's a special kind of criminality. It requires something more. A "plus" factor. Call it, perhaps, "criminality plus." It is critical, therefore, that we properly interpret MCL 750.543m(1)(a) and that we correctly delineate the bounds of that statute to assure its proper application in the future.
Indeed, the Legislature itself has recognized the concerns that underlie this opinion. Certainly, I am not one to unduly rely on legislative history (and my opinion in this case does not depend on it), but it bears noting that this case is "Exhibit A" in demonstrating how the proponents of the Michigan Anti-Terrorism Act, MCL 750.543a et seq. , assured us it would not be used (or misused). The act was passed in the wake of the September 11, 2001 attacks on our country, the Legislature being concerned with the adequacy of existing laws "to deter terrorist threats and to punish terrorist acts" in the wake of a large-scale terrorist attack on the civilian population and government infrastructure. The problem being addressed by the legislation was described as follows:
House Legislative Analysis, SBs 930, 936, 939, 942, 946, 948, 949, 995 and 997 and HBs 5495, 5509, 5512, 5513 and 5520 (September 16, 2002), pp. 1-2, available at < https://www.legislature.mi.gov/documents/2001-2002/billanalysis/House/pdf/2001-HLA-0930-b.pdf> [https://perma.cc/68LN-QRWG].
Prior to last September, terrorism was, for many Americans, the subject of action movies or news articles about events in foreign countries. However, since the events of September 11, 2001, when terrorists destroyed the World Trade Center, damaged the Pentagon, and crashed four jumbo jets, terrorism has become very real. For those in law enforcement who are charged with enforcing laws and preserving public safety, September 11th became a wake-up call to examine municipal and school emergency plans; the safety of governmental infrastructures such as water supplies, the food supply, power plants, and governmental buildings; places where large crowds gather such as stadiums, bus and train stations, and schools; and especially, the adequacy of existing laws to deter terrorist threats and to punish terrorist acts .
After scrutinizing Michigan laws, many felt that existing laws needed to be revised to more adequately address the threat of acts of terrorism against Michigan targets. As part of a bi-partisan, bicameral approach addressing the issues revolving around possible acts of terrorism on Michigan soil, the adoption of a multi-bill package of legislation has been recommended. [House Legislative Analysis, SBs 930, 936, 939, 942, 946, 948, 949, 995 and 997 and HBs 5495, 5509, 5512, 5513 and 5520 (September 16, 2002), pp 1-2 (emphasis added).]
The legislative analysis also described the arguments for the legislation and the response to those arguments, with prescient implications for the case now before us. It included the following:
| Arguments For:• "Senate Bill 930 would create the Michigan Anti-Terrorism Act. The bill would narrowly define an ‘act of terrorism.’ " Id. at 7 (emphasis added).• "It is obvious, therefore, that even a violent crime such as a murder, armed robbery, or sexual assault would not meet all the criteria . Even a crime involving the placement or detonation of a bomb would not necessarily meet the criteria so as to be charged as a crime of terrorism. " Id. (emphasis added). | • "It is also reasonable to assume that prosecutors and juries would be judicious in their application of such a criminal charge so as to only include those individuals or organizations targeting a larger population with the intent of bringing down our government, severely crippling the ability of government to function efficiently, or to keep the population in a state of fear and terror ." Id. (emphasis added). |
|---|
| Response:• "Not everyone would agree that the bill's definition of an act of terrorism is crystal clear or as narrowly defined as purported to be. In fact, though the bill is said to be addressing terrorism, such as the forces behind the September 11th attacks, it could be applied to environmental groups protesting the demolition of the rainforests, placements of nuclear dumps, and air and water pollution; animal rights activists; activists who target meetings of the World Trade Organization; labor union activists; and certain militia groups." Id. (emphasis added). | • "Couldn't hate crimes be reclassified as acts of terrorism, or bombings of abortion clinics be prosecuted as an act of terrorism?" Id.• "[W ]hat is to protect an individual from an overzealous prosecutor? " Id. (emphasis added).• "Juries, too, can be unpredictable; is it wise to place complete trust in a jury's ability to discern which crime should or shouldn't be prosecuted as a terrorist act? " Id. (emphasis added).• "Closer scrutiny should be given to language that could result in the limitation of free speech or the inadvertent "capturing" of protesters who are not in the same category as true terrorists." Id. |
|---|
Yet the majority now says that all of this is OK. I believe, to the contrary, that by affirming defendant's conviction on the record before us, the concerns expressed in the legislative analysis have now become a reality. And it puts us one step closer to authorizing our government to punish dissenters as "terrorists," something that I am unwilling to do.
With this backdrop, I will reframe the question as it applies to this case. Did defendant's conduct constitute extortion? Or threatening an act of terrorism? That, to me, is the question. Both are crimes under the laws of the state of Michigan. But they are different crimes, as the plain language of the respective statutes demonstrates. The difference between the two crimes, as applied in this case and on the basis of the evidence presented in the trial court, compels me to dissent from the majority's determination to affirm defendant's conviction of threatening an act of terrorism, MCL 750.543m(1). I. THE TWO STATUTES MCL 750.543m
(Threatening an Act of Terrorism)
MCL 750.543m provides, in pertinent part:MCL 750.213
(1) A person is guilty of making a terrorist threat ... if the person ...:
(a) Threatens to commit an act of terrorism and communicates the threat to any other person. [Emphasis added.]
An act of terrorism is defined, in pertinent part, in MCL 750.543b as a willful and deliberate act, and
[a]n act that is intended to intimidate or coerce a civilian population or influence or affect the conduct of government or a unit of government through intimidation or coercion, [MCL 750.543b(a)(iii) (emphasis added).][2]
(Extortion)
MCL 750.213 provides, in pertinent part:
Any person who shall, either orally or by written ... communication, maliciously threaten any injury to the person or property ... of another with intent thereby to extort money or any pecuniary advantage whatever, or with intent to compel the person so threatened to do or refrain from doing any act against his will, shall be guilty of a felony[.] [Emphasis added.][3]
[Editor's Note: The preceding image contains the references for footnotes , ]. Viewing the evidence in the light most favorable to the prosecution, People v. Harris , 495 Mich. 120, 126, 845 N.W.2d 477 (2014), it could certainly be credibly argued that defendant's conduct constituted extortion under MCL 750.213. The jury could have reasonably concluded that defendant made an oral threat of violence against Nancy and Randy Schauwecker (the owners of Lac O'Seasons Resort), with the intent of compelling them to pay him money and communicated that threat to Deputy Adam Schiavo of the Iron County Sheriff's Office, who in turn communicated it to the Schauweckers. But the prosecution did not charge defendant with that crime. So, the question before us is whether defendant's conduct rose to the level of threatening an act of terrorism (as statutorily defined) under MCL 750.543m and, more specifically, whether there was sufficient evidence in support of the jury's guilty verdict on that charge.
Other components of the statutory definition of an "act of terrorism" are not disputed and are not at issue on appeal.
As our Supreme Court has explained with regard to MCL 750.213 :
According to the plain language of the statute, the crime of extortion is complete when a defendant (1) either orally or by a written or printed communication, maliciously threatens (2) to accuse another of any crime or offense, or to injure the person or property or mother, father, spouse or child of another (3) with the intent to extort money or any pecuniary advantage whatever, or with the intent to compel the person threatened to do or refrain from doing any act against his or her will. [People v. Harris , 495 Mich. 120, 128-129, 845 N.W.2d 477 (2014).]
The extortion statute does not require that the defendant communicate the threat directly to the intended victim, or even that the intended victim ever perceive the threat. Although this Court has not stated so in published cases, several unpublished opinions have held that a "communication" need not reach the victim at all to satisfy the extortion element, so long as someone perceives it as a threat. See, e.g., People v. Martin , unpublished per curiam opinion of the Court of Appeals, issued June 2, 2015 (Docket No. 319400). Unpublished opinions of this Court are not binding precedent, but may be considered instructive or persuasive. Paris Meadows, LLC v. City of Kentwood , 287 Mich. App. 136, 145 n. 3, 783 N.W.2d 133 (2010). A federal statute analogous to our extortion statute similarly does not require that the communication be direct from the extortionist to the victim, or even perceived by the victim at all. See 18 USC 875(a), (b), and (d) ; see also, e.g., United States v. Holder , 302 F. Supp. 296, 299 (D. Mont., 1969).
II. "ACT OF TERRORISM"
The pertinent and compelling difference between the two criminal statutes, of course, is that the crime of threatening an act of terrorism requires that the threat be of an "act of terrorism," as defined in the statute. And for the reasons that I will explain, I conclude, from my review of the record and on the basis of the plain language of the statute, that the prosecution did not prove that defendant threatened an "act of terrorism." That is certainly not to minimize or condone what defendant did, or to exonerate him from any criminal culpability. As noted, he may, for example, be properly found guilty of extortion or some other crime. But context matters, words have meaning, and statutory definitions do as well. And I conclude in this context, interpreting the statutory definition of an "act of terrorism," that the prosecution did not prove a threat of an "act of terrorism" and that the evidence was therefore insufficient to support defendant's conviction under MCL 750.543m.
Indeed, we are affirming defendant's conviction of the malicious use of a telecommunications service, MCL 750.540e(1)(a).
As noted, MCL 750.543b(a)(iii) defines an "act of terrorism," in pertinent part, as a "willful and deliberate act" that is
intended to intimidate or coerce a civilian population or influence or affect the conduct of government or a unit of government through intimidation or coercion. [Emphasis added.]
Again, viewing the evidence in the light most favorable to the prosecution (and the jury verdict), Harris , 495 Mich. at 126, 845 N.W.2d 477, it could certainly be inferred that defendant's use of the phrase "hash tag Las Vegas" was a "threat" and, indeed, a threat of an act of violence against the owners of Lac O'Seasons Resort, who had not compensated him for the injury he sustained while working on the premises. It could further be inferred that defendant's threat was intended to intimidate or coerce them into compensating him for his injury. But the question whether defendant's words were a threat isn't precisely the question for purposes of MCL 750.543m (threatening an act of terrorism). Rather, the pertinent question is whether there was sufficient evidence to support a finding that the threatened act was "[a ]n act that is intended to intimidate or coerce a civilian population or influence or affect the conduct of government or a unit of government through intimidation or coercion." MCL 750.543b(a)(iii ) (emphasis added). And what is important to glean from that statutory language is that it is not the threat itself that must be intended to intimidate or coerce (as indeed, it would seem that threats generally are intended to do), but rather the threatened act must be of such a nature that it is intended to intimidate or coerce. Indeed, it is that distinction that makes terrorism terrorism , as distinguished from some other criminal act, such as extortion.
I agree with the majority that defendant's communication could properly be viewed as a "threat"; my contention is not that defendant made no threat, but simply that it was not established that the threatened act was an "act of terrorism." Relatedly, the majority's analysis of the necessary mens rea misses the mark in my judgment. Contrary to what the majority suggests, I am not engrafting an additional specific-intent requirement onto the statute; my conclusion does not hinge on whether defendant intended to communicate a threat, whether of terrorism or otherwise, or how defendant intended that his threat be perceived. Rather, I believe, on this record, that it was not established that the threat communicated by defendant, whether he intended to carry it out or not, was a threat to commit an "act of terrorism." No additional evidence of defendant's intent is required by my interpretation of the statute. Indeed, my focus is not on "intent," but rather is on whether the nature of the threatened act is such that it fully satisfies the statutory definition of an "act of terrorism." I also see no need or proper basis, in interpreting the Michigan statute, to strain to interpret it as mirroring the majority's interpretation of federal law.
It would, however, be a pertinent question in assessing whether defendant had committed extortion under MCL 750.213.
Had the Legislature intended otherwise, i.e., had it intended that a conviction under MCL 750.543m(1) require only that a threat (rather than a threatened act ) be "intended to intimidate or coerce," then it would not have used the "intended to intimidate or coerce" language as part of the statutory definition of an "act of terrorism"; it instead would have simply provided that a threat be made with the intent to intimidate or coerce. We are not free to ignore statutory language the Legislature has chosen to employ. See People v. Peltola , 489 Mich. 174, 181, 803 N.W.2d 140 (2011) (stating that a court construing a statute should avoid any construction that would render any part surplusage or nugatory); People v. Jackson , 487 Mich. 783, 791, 790 N.W.2d 340 (2010) (emphasizing that as far as possible, effect should be given to every phrase or clause in a statute).
III. THE TRIAL
So, what evidence was presented at trial to support a finding that defendant's threatened act was of such a nature that it was intended to intimidate or coerce? From my review of the record, there was none.
A. JURY INSTRUCTIONS
Jury instructions obviously are not "evidence," but they are the framework around which jurors evaluate the evidence that is presented during a trial. In its preliminary jury instructions in this case, the trial court described the elements of the crime of threatening an act of terrorism, MCL 750.543m(1), as follows:
To prove the charges beyond a reasonable doubt, the Prosecutor must prove, with respect to the [charge of] making a terrorist threat or a false report of terrorism, that the Defendant either threatened to commit an act of terrorism and communicated that threat to some other person; or, the Defendant knowingly made a false report of an act of terrorism and communicated that report to some other person knowing it to be false. It is not a defense that Defendant did not have the intent or capacity to commit
the act of terrorism. Terrorism means a willful and deliberate act that would be a violent felony under the laws of this state, whether or not committed in this state, mainly threatening to commit mass murder.
A person who knows or has reason to know is dangerous [sic] to human life, meaning that it could cause substantial likelihood of death or serious injury; is intended to intimidate or coerce a civilian
population; or influence or affect the conduct of government or any unit of government through intimidation or coercion. [Emphasis added.][ ]
The trial court's final jury instructions, given at the end of the trial and after closing arguments, were substantially identical and are not quoted in this opinion.
Close, but not quite. While the distinction between a threat that is intended to intimidate or coerce and the threat of an act of terrorism that is intended to intimidate or coerce is a subtle one, it is also a critically important one. And this preliminary jury instruction, which set the stage for the entire trial, as well as its counterpart in the final jury instructions, muddied that important distinction; indeed, they both left the sentence phrase, "is intended to intimidate or coerce," without a proper subject (i.e., one that would make clear that it was the threatened act , not the threat itself, that had to be "intended to intimidate or coerce").
The majority characterizes this distinction as "nuanced" and "obscure." But, with respect to the majority, any such nuance or obscurity was built into the plain language of the statute by the Legislature. See note 8 of this opinion. And appropriately so, because the distinction is also what gives meaning to the statutory definition of an "act of terrorism." "Terrorism" is, and ought to be recognized as, an entirely different animal than a more run-of-the-mill crime such as extortion. Simply put, "terrorism" requires something more, that "plus factor," even if it seems nuanced or obscure. Otherwise, we risk converting (or enabling the prosecutorial arm of government to convert) any threat of harm (wrongful and criminal though it may be) into the much more serious realm of "terrorism," with potentially dire consequences for our jurisprudence and our liberties. Particularly in the modern political era, which reflects an increasing movement (at least in some quarters) toward criminalizing (including as "terrorism") the conduct, the speech, and perhaps even the thoughts of one's political opponents, we should be careful, precise, and ever vigilant in our statutory interpretation lest we, by blurring critical distinctions, find ourselves at the bottom of a dangerous, slippery slope.
B. OPENING STATEMENTS
The prosecution then proceeded to its opening statement, during which it seized upon the ambiguity of the preliminary jury instruction to suggest to the jury that its burden of proof would be satisfied if it was able to prove merely that defendant's threat was intended to intimidate or coerce (without regard to whether the threatened act of terrorism was intended to intimidate or coerce).
I do not mean to impugn in any way either the trial court or any of the attorneys in this case. To the contrary, I suggest only that they do not appear to have recognized or appreciated the significance of the distinction that I find to be so important in evaluating whether there was sufficient evidence to support defendant's conviction of threatening an act of terrorism, MCL 750.543m(1).
[Prosecutor ]: This case is about a 37 year old man, Wilson Thompson Byczek, a man who was fed up, distraught, frustrated, and upset that he wasn't getting what he felt was his due. He wasn't getting a police report filed by the Iron County Sheriff's Office, and he wasn't getting paid for injuries he felt were caused by Lac O'Seasons Resort. So he resorted to intimidation to get his way. He called the Iron County Sheriff's Office, agitated and upset, and said in the phone call that if he didn't get paid for his injuries it was going to be "hash tag Las Vegas." That call came in 11 days after the mass murder in Las Vegas. When someone makes a threat, they mean to get a specific, intended response. And Mr. Byczek's phone call got a specific intended response.
* * *
Ladies and gentlemen, this isn't Mayberry anymore. Threats are not ignored. And at the end of this case we will ask you to return a verdict of guilty on the offenses charged. [Emphasis added.]
Defense counsel's opening statement also did not clarify the distinction. Indeed, it exacerbated the ambiguity by confirming the prosecution's incorrect assertion that the jury need only find that the threat (as opposed to the threatened act ) was "intended to intimidate or coerce":
In order for you to convict [defendant] at the end of this case, you'd have to believe that he was threatening to commit mass murder, which is intended to intimidate or coerce a civilian population. So the threat has to intimidate or coerce a civilian population. [Emphasis added.]
C. THE EVIDENCE AT TRIAL
As the trial proceeded, the following witnesses testified: Deputy Schiavo, Nancy and Randy Schauwecker, Robert Olsen (a 911 dispatcher in Iron County), Sheriff Mark Valesano of the Iron County Sheriff's Office, Starr Adank (defendant's mother), Amery Saylor (defendant's girlfriend), Lieutenant Ryan Boehmke of the Iron County Sheriff's Office, Elizabeth Byczek (defendant's sister-in-law), Todd Byczek (defendant's brother), and Special Agent David Whitlow of the Federal Bureau of Investigation.
Based upon my review of the trial court record, the prosecution presented its case consistently with its opening statement and principally endeavored to elicit evidence regarding the intent behind the threat itself, as opposed to the nature of the threatened act (were it to be carried out). And defense counsel's strategy appears to have been to create juror doubt about whether defendant's use of the words "hash tag Las Vegas" was a threat at all. The testimony that came closest to addressing the issue appears to have come from Elizabeth Byczek and Lieutenant Boehmke. Elizabeth Byczek testified on direct examination as follows:
Q. Did the Defendant at that point in time say anything about a phone call to the Iron County Sheriff's Office?
A. He did indicate it. He was pretty vague in what he said. I think he was really embarrassed at the time, but he had mentioned that he had kind of snapped, lost his temper earlier in the morning, and he had made a threat , his words, not mine, to the Iron County Sheriff's Department to try to get some action out of them. He, again, was very vague on exactly what he said, but he made some sort of reference to the recent mass shootings in Las Vegas. We didn't know what he meant by that. And we weren't really pressing him either at the time because he was very upset, he was very emotional. We really just wanted to calm him down and get him into a better headspace. We weren't there to, you know, drill him and get all of the -- get a ton of answers out of him. [Emphasis added.]
And Lieutenant Boehmke testified on direct examination as follows:
Q. So what did the Defendant say about the incident?
A. When he started talking about the actual phone call that he placed to the deputy, he told his mom that, "This is exactly what I said," he said, "My name is Wilson Byczek and I'd like to file a complaint on Lac O'Seasons. They're going to pay for what they did to me. " [Emphasis added.]
It consequently appears to me that the evidence presented at trial, or the inferences to be drawn from the evidence, construed in a light most favorable to the prosecution (and the jury verdict), was that defendant's threat was intended to intimidate or coerce the Schauweckers to compensate him for his injuries, to intimidate or coerce the Iron County Sheriff's Office to file a police report regarding his injury at Lac O'Seasons Resort or take other action to facilitate his desired compensation, or perhaps to exact retribution upon the Schauweckers or the Lac O'Seasons Resort for failing to compensate him. There was "zero" evidence, however, to support a finding that defendant's threatened act (even assuming that his use of the term "hash tag Las Vegas" was intended to refer to a mass shooting) would itself have been intended to intimidate or coerce either the Schauweckers or the Sheriff's Office (or, perhaps more appositely, the "larger population" that the statute apparently was intended to protect from such threats).
D. CLOSING ARGUMENTS
During closing arguments, which are not "evidence," but which help in framing the issues before the jury, the prosecution again told the jury, as it had during its opening statement, that it only had to prove that defendant's threat was intended to coerce or intimidate. The prosecution argued, in relevant part:
Lieutenant Boehmke[,] he went and listened to the jail call, and he gave you reasons as to why law enforcement officers do that. They catch smugglers in the jail, they get narcotics information, you know, they hear things about cases that are helpful. And he testified that the Defendant said, "My name is Wilson Byczek. I want to file a complaint against Lac O'Seasons. They're going to pay for what they did to me. I'm coming back to Michigan. Fill out the paperwork. Right now it's hash tag Las Vegas." He was upset, he was worked up. He had a bad conversation with his attorney and his case wasn't going well.
* * *
[E ]very one of these threats is made with an intent to get a response. It is intended to instill fear in those who are the subject of the threat....
* * *
It is a crime to even say it, whether it's true or not .... And the reason for this are so citizens are not frightened, panicked, terrorized; so they don't have to decide whether to evacuate, close down, "What do we tell our customers; what do we tell our employees? How do we protect our people?" So that thousands to millions of dollars in a mass murder and resources are not spent investigating something that is nothing more than someone spouting off because they didn't get what they wanted out of life. That's why it's a crime regardless of whether it was a joke or said out of frustration. [Emphasis added.]
And then the prosecution repeated the earlier errant muddying of whether it was sufficient that the threat itself (as opposed to the threatened act) be "intended to intimidate or coerce," and incorrectly told the jury that the term "act of terrorism" was broadly (rather than narrowly) defined under the law:
Let's look at the elements of the crime....
With respect to making terroristic threats or false reports of terrorism, they have to prove that the Defendant threatened to commit an act of terrorism and communicated that threat to some other person. Or, we have to prove that the Defendant knowingly made a false report of an act of terrorism and communicated that report to another person knowing it to be false. And as I said, it is not a defense, not a defense, that the Defendant did not have the intent or capability of committing the act of terrorism.
Terrorism, and it's not what—we talked about terrorism in jury selection,
terrorism like the 9/11 bombers, terrorism like, you know, the Orlando shooting—the shooting at the Orlando club. You know, terrorism is a much broader term , as was discussed in jury selection. And terrorism under Michigan's criminal law means a willful and deliberate act that would be violent under the laws of this state, whether or not committed in this state, mainly, that a person knows or has reason to know is dangerous to human life, meaning that it could cause a
substantial likelihood of death or serious injury, and—I'm sorry—committed in a state, namely mass murder. That a person knows or has reason to know is dangerous to human life, meaning that it could cause a substantial likelihood of death or serious injury. And, is intended to intimidate or coerce a civilian population or influence or affect the conduct of government or a unit of government through intimidation or coercion.
And I would submit to you that the civilian population in this case was Lac O'Seasons Resort; the people that use it, the people that love it and enjoy it. Not just the family, but the employees and the guests. He intended to intimidate the owners of the Lac O'Seasons Resort. He intended to coerce the [m ]. He wanted them to settle that lawsuit. [Emphasis added.]
IV. SUFFICIENCY OF THE EVIDENCE
For all of these reasons, I am left to conclude that the entire framework for the prosecution and trial of this case was built around a misconception of the law, i.e., that the prosecution need only prove that a threat , rather than the act threatened, was intended to intimidate or coerce, in order to secure a conviction of threatening an act of terrorism in violation of MCL 750.543m(1). That is, after all, what distinguishes terrorism from other crimes. The evidence presented at trial fit neatly within that incorrect framework, and consisted of a lack of any evidence, much less sufficient evidence, to support a conclusion that defendant threatened an act of terrorism that would justify his conviction under MCL 750.543m(1).
The majority postulates that "because defendant's statement suggests that the objective of such an act would be to exact vengeance or to retaliate, it is not unreasonable to conclude that the intent of the act would be to intimidate or to coerce either civilians (people at Lac O'Seasons or perhaps a random crowd as occurred in Las Vegas) or the government (Deputy Schiavo or the police generally)." I disagree both on the basis of the evidence presented and because I believe that this reasoning again blurs the distinction between terrorism (or threatening an act of terrorism) and other crimes, such as extortion, and that to properly describe something as "terrorism" requires something more, as the plain language of the statute itself dictates.
V. CONCLUSION
Certainly, it would be easy to say that it was within the prosecution's discretion to charge defendant with threatening an act of terrorism in violation of MCL 750.543m(1), rather than with extortion in violation of MCL 750.213. And it would be equally easy to say that it was the jury's prerogative to weigh the evidence and to render a verdict of guilty. But by doing so in this case, we are, in my judgment, effectively jettisoning any pretense of adherence to the fundamental underlying presumption of the legislative proponents of the Michigan Anti-Terrorism Act, i.e., that "prosecutors and juries would be judicious in their application of ... criminal [charges arising under the act] so as to only include those individuals or organizations targeting a larger population with the intent of bringing down our government, severely crippling the ability of government to function efficiently, or to keep the population in a state of fear and terror." Moreover, in my judgment, blind deference to the prosecution and the jury does not serve the interests of justice under the circumstances of this case (given the framework of the trial and the lack of any evidence that the threatened act was of such a nature that it was itself intended to intimidate or coerce), particularly when doing so propagates a misinterpretation of statutory law and therefore makes for bad law. Indeed, there already exist unpublished opinions of this Court that fail to recognize the distinction that this opinion has endeavored to highlight. I conclude that it is therefore necessary to attempt to set the law back on its right course, even by way of a dissent, based on sound statutory interpretation, and I accordingly dissent from the majority's determination to affirm defendant's conviction of threatening an act of terrorism, MCL 750.543m(1).