in Re Thomas James Gilbert ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
In re THOMAS JAMES GILBERT, Minor.
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
June 29, 2017
Petitioner-Appellee,
v No. 333297
Sanilac Circuit Court
Family Division
THOMAS JAMES GILBERT, LC No. 15-035944-DL
Respondent-Appellant.
Before: SAWYER, P.J., and SERVITTO and RIORDAN, JJ.
PER CURIAM.
In this delinquency proceeding, respondent appeals as of right his jury trial convictions of
making a false report or threat of terrorism, MCL 750.543m, and disturbing the peace, MCL
750.170. The trial court placed him on probation, released him to the custody of his parents,
ordered him to perform 20 hours of community service, and sentenced him to 10 days in juvenile
detention (held in abeyance). We affirm.
Respondent was accused of communicating threats that he intended to bring a gun to
school and kill certain classmates and then himself. Students at respondent’s school reported the
threats to members of the faculty and administration. Respondent was brought to the principal’s
office where his parents were called to pick him up. The rest of the student body was dismissed
for the day. After speaking with police, respondent was charged in the instant matter.
Respondent argues on appeal that his convictions are not supported by sufficient
evidence. We review this claim de novo. People v Lueth, 253 Mich. App. 670, 680; 660 NW2d
322 (2002).
As in criminal proceedings, the standard of proof in a delinquency proceeding is proof
beyond a reasonable doubt. MCR 3.942(C); In re Weiss, 224 Mich. App. 37, 42; 568 NW2d 336
(1997). “[W]hen determining whether sufficient evidence has been presented to sustain a
conviction, a court must view the evidence in a light most favorable to the prosecution and
determine whether any rational trier of fact could have found that the essential elements of the
crime were proven beyond a reasonable doubt.” People v Wolfe, 440 Mich. 508, 515-516; 489
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NW2d 748, amended on other grounds 441 Mich. 1201 (1992). “[C]ircumstantial evidence and
reasonable inferences arising from that evidence can constitute satisfactory proof of the elements
of a crime.” People v Allen, 201 Mich. App. 98, 100; 505 NW2d 869 (1993).
MCL 750.543m provides as follows:
(1) A person is guilty of making a terrorist threat or of making a false
report of terrorism if the person does either of the following:
(a) Threatens to commit an act of terrorism and communicates the threat to
any other person.
(b) Knowingly makes a false report of an act of terrorism and
communicates the false report to any other person, knowing the report is false.
(2) It is not a defense to a prosecution under this section that defendant did
not have the intent or capability of committing the act of terrorism.
The phrase “act of terrorism” refers to “a willful and deliberate act that” (a) “would be a violent
felony under the laws of this state, whether or not committed in this state,” (b) the actor “knows
or has a reason to know is dangerous to human life,” and (C) “is intended to intimidate or coerce
a civilian population or influence or affect the conduct of government or a unit of government
through intimidation or coercion.” MCL 750.543b(a).
Respondent contends that petitioner presented insufficient evidence to convict him of
threatening an act of terrorism because “bringing a gun to school” does not constitute a violent
felony, MCL 750.543b(a)(i). However, petitioner never claimed that this alone constituted an
act of terrorism. Rather, petitioner argued that respondent threatened an act of terrorism by
stating to classmates he was going to bring a gun to school to shoot other students and himself.
Respondent spoke of doing a willful and deliberate act which, if successful, would be a
violent felony (however it was charged). And, there can be no disagreement that utilizing a gun
to kill others is an act respondent knows is dangerous to human life. Furthermore, testimony
suggested that respondent threatened a specific group of students who had been bullying him.
This suggests that the act is intended to intimidate a particular subset of the relevant civilian
population, i.e., the student body.
Respondent argues that he was not threatening to commit an act of terrorism and was not,
in fact, threatening anyone. Rather, he was simply reporting that he was again feeling like he did
in eighth grade. However, the police officer investigating the matter testified that respondent
explained to him that when respondent was in the eighth grade, he “felt like he was going to
bring a gun to school” to kill others and himself. One of respondent’s classmates also testified
that respondent told her he was feeling again like he had previously and that this involved taking
a gun to school and shooting up the school. While other witnesses testified that respondent did
not threaten them, to credit respondent’s argument that conflicting evidence necessarily means
that a conviction may not be had is to invade the province of the jury to judge the facts, weigh
the evidence, and determine the credibility of the witnesses. People v Hardiman. 466 Mich. 417,
431; 646 NW2d 158 (2002)(quotation omitted). Thus, it was for the jury to consider the
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sometimes conflicting testimony about the immediacy of the threats and reach a conclusion on
the issue. Sufficient evidence existed to find respondent guilty of violating MCL 750.543m.
There was also sufficient evidence presented to support respondent’s conviction under
MCL 750.170, which provides as follows:
Any person who shall make or excite any disturbance or contention in any
tavern, store, or grocery, manufacturing establishment or any other business place
or in any street, lane, alley, highway, public building, grounds or park, or at any
election or other public meeting where citizens are peaceably and lawfully
assembled, shall be guilty of a misdemeanor.[1]
A “disturbance” is “[a]n act causing annoyance or disquiet, or interfering with a person’s
pursuit of a lawful occupation or the peace and order of a neighborhood, community, or
meeting.” Black’s Law Dictionary (10th ed); see also People v Weinberg, 6 Mich. App. 345, 351;
149 NW2d 248 (1967) (defining disturbance as “an interruption of peace and quiet; a violation of
public order and decorum; or an interference with or hindrance of one in pursuit of his lawful
right or occupation”).
The evidence shows that respondent created a disturbance in the school community and
that students aware of the threats reported being “uncomfortable,” “fearful,” and “concerned.”
Respondent thus generated a level of disquiet in the school population with his repeated threats
of violence that eventually resulted in multiple students reporting their concerns to a teacher or a
school administrator. This evidence shows that general order of the school was upset.
Affirmed.
/s/ David H. Sawyer
/s/ Deborah A. Servitto
/s/ Michael J. Riordan
1
While People v Vandenberg, 307 Mich. App. 57, 66; 859 NW2d 229 (2014), determined that
MCL 750.170 use of the phrase “exciting a contention” is unconstitutionally overbroad because
it “unconstitutionally infringes protected speech by criminalizing the peaceable public expression
of ideas, merely because those ideas might be offensive to others,” petitioner argued throughout
trial that respondent was guilty of “exciting a disturbance” and thus the constitutional validity of
the conviction is not at issue.
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