False Report/Making Terrorist Threat; MCL 750.543m; Sentencing; Scoring of OV 20; MCL 777.49; “Act of terrorism”; MCL 750.543b(a) & (b); MCL 777.49a(2)(a); People v. Osantowski

Holding that the trial court erred in assessing 50 points for OV 20, the court vacated defendant’s sentence and remanded for resentencing. He was convicted of making a terrorist threat after he threatened to kill employees at a company that declined to hire him. The trial court sentenced him to 5 to 20 years. On appeal, the court agreed with defendant that the trial court erred by assessing him 50 points for OV 20 because his threats were not an act of terrorism. In interpreting MCL 777.49a, the trial court focused solely on the word “threatening” and concluded that defendant’s threats alone constituted an act of terrorism. “The trial court did not analyze defendant’s conduct under MCL 750.543b(a) to determine whether it met the three-prong test required to determine if defendant committed an act of terrorism.” It also “did not determine whether a preponderance of the evidence in the record supported a finding under MCL 750.543b(a) that defendant’s conduct consisted of an act of terrorism.” As explained in Osantowski, “the trial court needed to determine whether a preponderance of the evidence supported a finding that the defendant’s threat also constituted an act of terrorism.” The court concluded that “defendant’s threats themselves d[id] not appear to satisfy all three of the elements of MCL 750.543b(a). A preponderance of the evidence does not support a finding that defendant knew or had reason to know that his action constituted conduct dangerous to human life as defined under subsection (b).” Even if the record could “be understood to support a finding that defendant intended to intimidate a civilian population, MCL 750.543b(a) requires evidence of all three elements to establish the commission of an act of terrorism. The record, viewed in its entirety, does not support a finding that defendant’s conduct constituted an act of terrorism as defined by MCL 750.543b(a).”