Terrorist-threat mens rea; MCL 750.543m; People v Kvasnicka (On Remand) (Kvasnicka III); Malicious use of telecommunications; MCL 750.540e(1)(a); In re JP

The court held that the jury was improperly instructed on the mens rea for making a terrorist threat and vacated that conviction, but it affirmed the conviction for malicious use of a telecommunications service. Defendant left multiple profane calls for a probate judge, including “the bogeyman is coming his way” and “he is gonna get smoked.” The jury convicted on both counts. On appeal, the court held that after Kvasnicka III, the prosecution must prove the defendant recklessly threatened to commit an act of terrorism and that the jury must be instructed that the defendant “consciously disregarded a substantial risk that his communications would be viewed as threatening violence.” The model instruction given in this case used an objective reasonable-person standard and did not convey the required subjective recklessness, so an instructional error occurred and a new trial was required on that count. As to MCL 750.540e(1)(a), the court found sufficient evidence that defendant used a telecommunications device and threatened physical harm with the intent to terrorize, frighten, intimidate, threaten, harass, annoy, or disturb the judge’s peace, citing the language of the calls and the judge’s reaction.