Modified jury instructions on ethnic intimidation under former MCL 750.147b; MCL 750.147b(1)(c) (threatening the complainant); “True threat”; Counterman v Colorado; The relevant mens rea; “Reasonable cause” language in the instruction

In an interlocutory appeal, the court agreed with the prosecution’s challenges to the modified jury instruction adopted by the trial court as to defendant’s ethnic intimidation charge under former MCL 750.147b(1)(c). Thus, it reversed the trial court’s order to the extent that it was inconsistent with the court’s opinion, and remanded. Defendant was charged with threatening the complainant. Thus, the court reviewed Counterman, which “clarified the circumstances in which an individual can be criminally liable for making a ‘true threat[.]’” The prosecution argued that the trial court improperly lessened its “burden of proof in two ways.” First, it asserted that MCL 750.147b(1)(c) required it “to prove that a defendant acted with the mens rea of malice—that he or she ‘maliciously’ made a threat—and that the trial court’s instruction only requires that [it] prove that the defendant made a threat with the lesser mens rea of recklessness.” The court agreed. It also agreed with the prosecution’s second argument, concerning the removal of “the ‘reasonable cause’ language from the first paragraph of” the instruction. It asserted that, “to convict defendant of ethnic intimidation under MCL 750.147b(1)(c)’s plain language, [it] must prove that ‘there is reasonable cause to believe that’ the defendant will do the threatened action.” The court suggested, but did not require, a specified instruction, noting that it intended “to leave it to the trial court’s discretion, aided by the parties’ insights and arguments, as to the proper way to instruct the jury on the ethnic-intimidation charge.” But it held “that any ethnic-intimidation instruction must (1) clarify that the defendant maliciously threatened the complainant because that is the mens rea required by the statute and (2) include some form of the ‘reasonable cause’ language because that is an element of the offense, and that element is necessary to ensure that defendant’s speech amounted to a ‘true threat’ and was thus not constitutionally protected.”