Providing material support for an act of terrorism; MCL 750.543k(1)(b); Act of terrorism; MCL 750.543b(a); Violent felony; MCL 750.543b(h); Kidnapping; MCL 750.349; Jury instructions; Invalid theory; People v Morrison; Double jeopardy; Gang-membership felony; MCL 750.411u; Felony-firearm

The court held that, under the published decision in Morrison, defendants’ convictions had to be vacated because the jury was improperly instructed that kidnapping could serve as the underlying act of terrorism. Defendants-Musico and Bellar were tried with Morrison for alleged roles connected to the plot to kidnap Governor Whitmer. The jury convicted them of providing material support for an act of terrorism, gang-membership felony, and felony-firearm. On appeal, the court exercised its discretion to consider Morrison’s effect even though the issue was not raised in the original appellate briefs. It held that Morrison controlled because kidnapping is not a “violent felony” under MCL 750.543b(h), where the Legislature removed force as an element of kidnapping and the statutory definition of violent felony requires the “use, attempted use, or threatened use of physical force.” The court reasoned the same instructional error tainted the verdicts here because the jury was expressly allowed to treat kidnapping as a valid predicate, and the verdict form did not reveal whether the jury relied on that invalid theory. It declined Musico’s request to vacate on sufficiency grounds, reasoning that Morrison required reversal for instructional error unrelated to factual guilt or innocence, so retrial was not barred by double jeopardy. Vacated and remanded.