Constitutionality of MCL 750.543m; Making a threat of terrorism under MCL 750.543m(1)(a); “Act of terrorism”; “True threats” of violence; Counterman v Colorado; People v Byczek; Recklessness; Effect of the lack of an intent element in a statute; Elonis v United States; The constitutional-doubt canon of statutory interpretation; Model jury instructions for making a terrorist threat; M Crim JI 38.4

Holding on remand from the Supreme Court that MCL 750.543m(1)(a) is not facially unconstitutional, the court affirmed the trial court’s order denying defendant’s motion to dismiss the charges against him (making a terrorist threat) and remanded to the trial court with instructions as to use of the model jury instructions. In a prior appeal, the court concluded that MCL 750.543m was facially unconstitutional in light of Counterman. The Supreme Court remanded with the directive “to consider the proper interpretation of MCL 750.543m in light of MCL 750.543z and the constitutional-doubt canon of statutory interpretation.” As a preliminary matter on remand, the court found that “the trial court abused its discretion by dismissing this case without prejudice while an application for leave was pending in our Supreme Court.” As to the merits, the court noted that, “under Elonis, the lack of an express mens rea in MCL 750.543m(1)(a) is not dispositive as to the statute’s constitutionality because the statute should be broadly interpreted to include a mens rea requirement even though the statute is otherwise silent. In turn, under the constitutional-doubt canon of statutory interpretation, it is ‘fairly possible’ to construe MCL 750.543m(1)(a) as constitutional by interpreting [it] to include a mens rea requirement that does not fall foul of the decision in Counterman.” As such, the court construed the statute “as requiring that the prosecution prove (1) that the defendant recklessly threatened (2) to commit an act of terrorism and (3) that the threat was communicated to another person. The term ‘recklessly’ means that the defendant ‘consciously disregarded a substantial risk that his [or her] communications would be viewed as threatening violence.’” Finally, the court concluded that because the model jury instruction (M Crim JI 38.4(3)) “only requires that the prosecution must prove that an objectively reasonable person would understand that his message was a true threat, not that the defendant must be subjectively aware that his message was a true threat,” it is contrary to law. As such, on remand, “the trial court should not use the model jury instruction in this case as written. Rather, if it uses the model jury instruction it should adapt it so as to ‘give additional instructions on applicable law not covered by the model instructions.’ Specifically, and in either event, consistent with our construction of MCL 750.543m(1)(a), [it] should instruct the jury that the prosecution must prove [defendant] recklessly threatened to commit an act of terrorism, i.e., that he ‘consciously disregarded a substantial risk that his [or her] communications would be viewed as threatening violence.’”