People of Michigan v. David Joseph Lenio ( 2019 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
February 14, 2019
Plaintiff-Appellee,
v No. 339945
Kent Circuit Court
DAVID JOSEPH LENIO, LC No. 17-002894-FH
Defendant-Appellant.
Before: METER, P.J., and SAWYER and CAMERON, JJ.
PER CURIAM.
Defendant, David Joseph Lenio, appeals his jury conviction of malicious use of service
provided by a telecommunications service provider, MCL 750.540e. We affirm.
In February 2017, defendant used Twitter to communicate with the victim, who posted
messages, or “tweets,” that primarily involved political and human-rights issues. Both defendant
and the victim had public Twitter profiles. Defendant’s correspondence with the victim began in
February 2015 when defendant responded to the victim’s tweet regarding two fatal shootings at
free speech events in Copenhagen, Denmark. The victim testified that defendant sent him
several anti-Semitic tweets, in addition to tweets about European laws that criminalized the
denial of the Holocaust. The victim testified that he saw other concerning tweets on defendant’s
Twitter profile, including messages in which defendant stated that he wanted to “shoot up a
grade school in Kalispell, Montana,” where defendant was living at the time.
Between February 2015 and February 2017, defendant moved to live with his parents in
Grand Rapids, Michigan. The victim testified that defendant did not contact him in 2016.
However, the victim testified that defendant sent him four direct, public tweets in February 2017.
These four tweets read:
[February 7, 2017, 6:00 p.m.] My religion says it’s cool to shoot jewish
people in the head with guns… You still cool with #religiousLiberty?
@JonHutson
[February 7, 2017, 6:05 p.m.] Hey @JonHutson when did you stop jerking
off your son? ae911truth.org1
[February 19, 2017, 10:35 p.m.] Jesus also used physical violence to
remove the money changers from the temple but thanks for lecturing us you
fucking pedo kike @JonHutson
[February 19, 2017, 10:37 p.m.] If #Trump is such a tyrant, why they hell
hasnt he put @Evan_McMullin into the #GasChambers yet? No one would even
care if he did. @JonHutson
The victim testified that defendant’s first tweet on February 7, 2017, was in response to the
victim’s tweets earlier that day on religious liberty. The victim testified that defendant’s tweets
on February 19, 2017, were in response to the victim’s post suggesting that Jesus never engaged
in discrimination.
The victim testified that he was alarmed by the threatening nature of the tweets. As such,
he viewed defendant’s public tweets from January 2017 and February 2017 to understand the
context of the tweets that were specifically addressed to him. 2 The victim also testified that he
1
The victim testified that this hyperlink led to an article regarding conspiracy theories about the
September 11, 2001 terrorist attacks.
2
Defendant’s other tweets from January 2017 to February 2017 that were admitted as evidence
at trial are reproduced here as they appeared in the original tweets:
[January 3, 2017, 11:57 p.m.] After serving 5 months in jail without a
conviction for words on twitter that should be #freeSpeech…I’m a fan of shooting
sprees #ethics
[January 4, 2017, 12:03 a.m.] Each time that I’m #censored on
#socialMedia, the more convinced I become that violence works best #1a
#freeSpeech & #holocaust denial laws
[January 4, 2017, 12:47 a.m.] Lets just say I am more full of #hate and
#rage than I have ever been; lol… Maybe that was what this system was trying to
do? @Tayten5
[January 5, 2017, 1:02 a.m.] [In response to ADL New Jersey’s tweet of
an article titled: “Court Ruling Allowing Islamic Society of Basking Ridge to
Build Mosque a Significant Victory for Religious Freedom”] My religion tells me
its okay to go on shooting sprees so long as one only targets sub human jewish
filth who ban #holocaust denial @ADL_NJ
[January 5, 2017, 2:24 a.m.] funny thing is #censorship only makes
violence more appealing…
[January 6, 2017, 1:59 p.m.] [In response to the tweet by JacharJacobs
stating: “@AlecDawson @PsychicDogTalk4 @mitchellvii holocaust deniers
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reported defendant’s tweets to the Kalispell Police Department in Montana and to local police
authorities where he lived. He further testified that, because defendant now lived in Michigan,
the Montana Police Department referred the victim’s concerns to the Grand Rapids Police
Department. Police officers executed a search warrant of defendant’s residence in Grand Rapids
and found a 12-gauge shotgun and shotgun ammunition in defendant’s bedroom.
Defendant first argues that his Twitter messages do not amount to “true threats” and are
constitutionally protected free speech. We disagree.
Defendant raised the issue whether his tweets constituted protected speech before the trial
court in his motion to dismiss. The trial court denied defendant’s motion, determining that
defendant’s statements on Twitter were “true threats” that were not protected by the First
Amendment. Ordinarily, we review a trial court’s decision regarding a motion to dismiss for an
abuse of discretion. See People v Jones, 252 Mich. App. 1, 4; 650 NW2d 717 (2002). However,
in this case, the trial court’s resolution of defendant’s motion to dismiss involved a constitutional
question. As such, this Court reviews the constitutional issue de novo. See Burns v Detroit (On
Remand), 253 Mich. App. 608, 616; 660 NW2d 85 (2002); People v Rogers, 249 Mich. App. 77,
94; 641 NW2d 595 (2001).
The First Amendment of the United States Constitution provides that “Congress shall
make no law . . . abridging the freedom of speech[.]” US Const, Am I. The 1963 Michigan
Constitution provides: “[e]very person may freely speak, write, express and publish his views on
all subjects, being responsible for the abuse of such right; and no law shall be enacted to restrain
or abridge the liberty of speech or of the press.” Const 1963, art 1, § 5. The Michigan Supreme
Court determined that the free speech protections of the Michigan Constitution and the United
States Constitution are coterminous. Book Tower Garage, Inc v Local No 415, 295 Mich. 580,
587; 295 N.W. 320 (1940); see also Woodland v Mich Citizens Lobby, 423 Mich. 188, 211; 378
deserve to be shot on sight. My grandparents barely avoided Auschwitz”] lol
that’s how i feel about jewish scum, gun grabbers anyone who supports
#censorship… #1a coming @JacharJacob @AlecDowson @mitchellvii
[February 10, 2017, 10:44 p.m.] Revenge is best served right after your
adversaries forgot that you might be willing to do it…
[February 12, 2017, 10:22 a.m.] I want a job operating #gasChambers
@Polyphemus___ @richi3baby
[February 22, 2017, 8:36 p.m.] I can be anything I want if I grow up, and I
just want to man ovens in a concentration camp… “Personal #meatloaf &
#spaghetti” #foodPorn
[February 22, 2017, 9:05 p.m.] I blocked someone on twitter today… for
snitching. [A picture with the words “Stop. Snitching.” accompanied this tweet.]
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NW2d 337 (1985). This Court may consider federal authority when determining the extent of
the free speech protections under the Michigan Constitution. Thomas M Cooley Law Sch v Doe
1, 300 Mich. App. 245, 256; 833 NW2d 331 (2013).
The First Amendment protects actual speech and symbolic or expressive conduct.
Virginia v Black, 538 U.S. 343, 358; 123 S. Ct. 1536; 155 L. Ed. 2d 535 (2003). “The hallmark of
the protection of free speech is to allow ‘free trade in ideas’—even ideas that the overwhelming
majority of people might find distasteful or discomforting.” Id. The First Amendment “denies a
State the power to prohibit dissemination of social, economic and political doctrine which a vast
majority of its citizens believes to be false and fraught with evil consequence.” Id. (quotation
marks and citations omitted).3 Even though the language used in the political arena is often
“vituperative, abusive, and inexact,” it is protected by the First Amendment. Watts v United
States, 394 U.S. 705, 708; 89 S. Ct. 1399; 22 L. Ed. 2d 664 (1969). The First Amendment even
protects “vehement, caustic, and sometimes unpleasantly sharp attacks on government and public
officials,” in light of our “profound national commitment to the principle that debate on public
issues should be uninhibited, robust, and wide-open[.]” New York Times Co v Sullivan, 376 U.S.
254, 270; 84 S. Ct. 710; 11 L. Ed. 2d 686 (1964). Additionally, the United States Supreme Court
has held that the federal constitution protects speech communicated over the Internet to the same
extent as speech communicated through other media. Reno v American Civil Liberties Union,
521 U.S. 844, 870; 117 S. Ct. 2329; 138 L. Ed. 2d 874 (1997); see also Thomas M Cooley Law Sch,
300 Mich. App. at 256.
“The protections afforded by the First Amendment, however, are not absolute.” Black,
538 U.S. at 358. The United States Supreme Court has held that government can regulate the
content of speech in “limited areas” that are “of such slight social value as a step to truth that any
benefit that may be derived from them is clearly outweighed by the social interest in order and
morality.” RAV v City of Saint Paul, 505 U.S. 377, 383; 112 S. Ct. 2538; 120 L. Ed. 2d 305 (1992)
(quotation marks and citation omitted). A state can also regulate speech that constitutes a “true
threat.” Black, 538 U.S. at 359 (quotation marks and citation omitted).
A threat is “[a] communicated intent to inflict harm or loss on another or on another’s
property, esp[ecially] one that might diminish a person’s freedom to act voluntarily or with
lawful consent.” Black’s Law Dictionary (9th ed). “True threats” are statements “where the
speaker means to communicate a serious expression of an intent to commit an act of unlawful
violence to a particular individual or group of individuals.” Black, 538 U.S. at 359; see also
Watts, 394 U.S. at 708. A state may restrict and regulate “true threats” to protect people from the
possibility of violence and to protect individuals from the fear of violence. RAV, 505 U.S. at 388.
3
“[A] state statute which regulates speech and expression must be narrowly drawn so as not to
infringe on constitutionally protected speech.” People v Taravella, 133 Mich. App. 515, 519; 350
NW2d 780 (1984). Michigan’s malicious use of service provided by a telecommunications
service provider statute, MCL 750.540e, is not unconstitutionally vague or overbroad. Id. at
524-525. Additionally, MCL 750.540e sanctions the conduct of misuse of a communications
service, rather than pure speech. Id. at 520 (emphasis added).
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A state may ban speech that is considered a “true threat” even if the speaker does not actually
intend to carry out the threat. Black, 538 U.S. at 360. Intimidation constitutes a “true threat” if
the “speaker directs a threat to a person or group of persons with the intent of placing the victim
in fear of bodily harm or death.” Id. Under the speaker-oriented standard for determining
whether a threat is a true threat, a statement is a “true threat” if “a reasonable person would
foresee that the statement would be interpreted by those to whom the maker communicates the
statement as a serious expression of intent to harm or assault.” United States v Schiefen, 139 F3d
638, 639 (CA 8, 1998) (quotation marks and citation omitted).
In this case, we conclude that defendant’s tweets constituted “true threats.” The tweets
communicated a serious expression of his intent to harm, or at least intimidate, Jewish people
generally, and the victim specifically, in addition to people who supported what defendant
perceived to be censorship of his freedom of speech. Defendant expressed his desire to commit
acts of violence when he stated that he wanted to operate gas chambers. Defendant repeatedly
encouraged violence against these groups, demonstrating his deliberate and persistent targeting
of these individuals. Defendant’s tweets, which referenced his persistent threats of violence and
repeated expressions of hate and rage towards Jewish people demonstrated that defendant’s
intent to inflict harm was credible and genuine. A reasonable person viewing defendant’s tweets
would interpret the statements as a serious expression of defendant’s intent to inflict harm. And,
as discussed more thoroughly below, defendant specifically targeted the victim in this case by
tagging him. Therefore, we conclude that defendant’s tweets constituted “true threats” that were
not constitutionally protected speech.
Defendant next argues that there was insufficient evidence of a threat necessary to
support defendant’s conviction for malicious use of service provided by a telecommunications
service provider. We disagree.
This Court reviews de novo a sufficiency of the evidence claim. People v Ericksen, 288
Mich. App. 192, 195; 793 NW2d 120 (2010). “In determining whether sufficient evidence exists
to sustain a conviction, this Court reviews the evidence in the light most favorable to the
prosecution, and considers whether there was sufficient evidence to justify a rational trier of fact
in finding guilt beyond a reasonable doubt.” People v Harris, 495 Mich. 120, 126; 845 NW2d
477 (2014). The appellate court is required to draw all reasonable inferences and credibility
determinations in favor of the jury verdict. People v Nowack, 462 Mich. 392, 400; 614 NW2d 78
(2000). This is because “[j]uries, not appellate courts, see and hear witnesses and are in a much
better position to decide the weight and credibility to be given to their testimony.” People v
Wolfe, 440 Mich. 508, 515; 489 NW2d 748 (1992), amended 441 Mich. 1201 (quotation marks
and citation omitted). “Circumstantial evidence and reasonable inferences arising from that
evidence can constitute satisfactory proof of the elements of a crime.” People v Carines, 460
Mich. 750, 757; 597 NW2d 130 (1999) (quotation marks and citation omitted).
Malicious use of service provided by a telecommunications service provider is a
misdemeanor crime in which a person intends to “terrorize, frighten, intimidate, threaten, harass,
molest, or annoy another person, or to disturb the peace and quiet of another person.” MCL
750.540e(1). A person maliciously uses the service provided by a telecommunications service
provider, in relevant part, by: “[t]hreatening physical harm or damage to any person or property
in the course of a conversation or message through the use of a telecommunications service or
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device.” MCL 750.540e(1)(a). The focus of the statute is on the defendant’s malicious intent,
rather than the recipient’s subjective perceptions of the defendant’s conduct. People v Taravella,
133 Mich. App. 515, 521; 350 NW2d 780 (1984).
MCL 750.540e does not define the terms “threat” or “threatening.” Undefined words in
statutes are “construed and understood according to the common and approved usage of the
language,” but technical words or terms of art are given their appropriate meaning in the law.
MCL 8.3a. “Where a statute does not define one of its terms it is customary to look to the
dictionary for a definition.” People v Lee, 447 Mich. 552, 558; 526 NW2d 882 (1994). A threat
is “[a] communicated intent to inflict harm or loss on another or on another’s property,
esp[ecially] one that might diminish a person’s freedom to act voluntarily or with lawful
consent.” Black’s Law Dictionary (9th ed). The verb “to threaten” is defined as “(1) to utter
threats against; (2)(a) to give signs or warning of; (2)(b) to hang over dangerously; (3) to
announce as intended or possible; or (4) to cause to feel insecure or anxious.” Merriam-
Webster’s Collegiate Dictionary (11th ed). Therefore, a person threatens physical harm to
another person or damage to property when he or she states that harm is intended or possible, or
when the person causes another to feel insecure about his or her safety or personal situation
relative to the threatening person.
The malicious use of service provided by a telecommunications service provider statute
does not require that the threat is credible. The statute only requires that a defendant “intends to
terrorize . . . or annoy another person” by threatening physical harm of a person, not necessarily
a specified person, the recipient of the threat, or a class of people. There is also no requirement
that a defendant’s threat causes a person to feel threatened or fearful. Compare MCL
750.540e(1) (malicious use of service provided by telecommunications service provider) to MCL
750.411i (aggravated stalking).
In this case, the evidence and testimony presented at trial demonstrated that defendant
maliciously used Twitter, a telecommunications provider, to terrorize, frighten, intimidate,
threaten, harass, molest, or annoy the victim. Defendant’s intent can be reasonably inferred from
the content of the messages. Defendant’s tweets to the victim implied that the victim was both a
pedophile and Jewish, referring to the victim as a “pedo kike.” Defendant’s tweets also
threatened physical violence, specifically stating he would like to “shoot [J]ewish people in the
head with guns” and utilize gas chambers. A jury could reasonably infer that defendant’s
references to violence against Jewish people would target the victim by association on the basis
of defendant’s reference to the victim as a “pedo kike.” As such, a jury could infer that
defendant meant to threaten and intimidate, or at least frighten and annoy, the victim.
Additionally, these tweets occurred during three separate evenings within a 12-day period. A
rational jury could find that defendant intended to disturb the victim’s peace and quiet by
sending the victim four tweets in which defendant used offensive, ethnoreligious slurs and
threatened violence. See MCL 750.540e(1); see also Taravella, 133 Mich. App. at 521.
Further, the evidence and testimony presented at trial demonstrated that defendant
maliciously used Twitter by threatening physical harm to a person. Defendant’s tweets, read in
context, provided sufficient evidence of his intent to harm Jewish people and people who, in
defendant’s opinion, supported the censorship of free speech. In his public tweets that did not
address the victim directly, defendant referred to shooting on sight “[J]ewish scum, gun grabbers,
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and anyone who supports []censorship” and beheading Jewish people. Defendant stated that he
wanted to work in a concentration camp and operate gas chambers. Additionally, defendant
expressed that he was “full of []hate and []rage” and that censorship made violence more
appealing. A rational jury could find that defendant’s repeated references to acts of violence, his
possession of a gun and ammunition, and public expression of his increasing hate and rage
demonstrated the requisite intent to harm an individual belonging to any of the groups that
defendant named. See People v Osantowski, 274 Mich. App. 593, 605, 612-613; 736 NW2d 289
(2007) (concluding that the defendant’s statements of intent to inflict harm on people other than
the recipient of the statements constituted threats, even though the class of victims was
ambiguous), rev’d in part on other grounds 274 Mich. App. 593 (2008). Viewing the evidence in
the light most favorable to the prosecution and drawing all reasonable inferences in favor of the
jury verdict, we conclude that there was sufficient evidence to justify the jury’s finding that
defendant was guilty of malicious use of service provided by a telecommunications service
provider.
Affirmed.
/s/ Patrick M. Meter
/s/ David H. Sawyer
/s/ Thomas C. Cameron
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