Improper Jury Instruction Requires Tossing Conviction For Threatening Judge

A defendant’s conviction for allegedly making a terrorist threat against a probate judge must be vacated, the Michigan Court of Appeals has ruled, because the jury instruction did not properly convey the required “subjective recklessness” standard.

A jury convicted the defendant in People v Meharg (Docket No. 372717) of 1) making a terrorist threat against St. Clair County Probate Court Judge John Tomlinson under MCL 750.543m(1)(a) and 2) malicious use of a telecommunications service under MCL 750.540e(1)(a). The defendant was sentenced as a third-offense habitual offender to 24 months to 40 years for his conviction of making a terrorist threat, and to 180 days for his conviction of malicious use of a telecommunications service, to be served concurrently.

The defendant appealed, arguing his convictions should be vacated because there was insufficient evidence that he made a threat of terrorism or that he threatened the judge with violence or bodily harm. He also argued that he was denied due process because the jury was not instructed on the proper mens rea, or mental state, on the terrorist threat charge.

While the Court of Appeals held there was sufficient evidence to uphold the conviction of malicious use of a telecommunications service, it vacated the terrorist threat conviction. According to the panel, the recent decision in People v Kvasnicka (On Remand), ___ Mich App ___ (2025) (Docket No. 371542) (Kvasnicka III) required that it remand the matter for a new trial on the terrorist threat count “because the jury was improperly instructed.”

Judge James Robert Redford, Judge Thomas C. Cameron and Judge Sima G. Patel were on the panel that issued the unpublished opinion.

Background

Judge Tomlinson had entered a final divorce judgment involving the defendant’s fiancée, Amanda Hosler, and her ex-husband. In December 2023, the judge issued an order to show cause against Hosler regarding her alleged failure to comply with parenting time orders. When Hosler failed to appear, Judge Tomlinson issued a bench warrant for her arrest. Hosler turned herself in on February 23, 2024. The judge ordered that Hosler be taken into custody on the bench warrant and scheduled a contempt hearing.

That same day, Judge Tomlinson’s secretary received a voicemail in which a male caller said: “Hi I’m looking for Judge Tomlinson. Just let him know that the bogeyman is coming his way.” The caller ID listed Hosler’s name. About 15-20 minutes later, the secretary answered a phone call from the same number. The male caller asked to speak to Judge Tomlinson. The secretary told the caller that the judge was unavailable and offered to take a message. The caller said: “[T]ell Judge Tomlinson the bogeyman is coming his way.” The secretary informed Judge Tomlinson and Joseph Schulte, the Probate Court’s Director of Operations, about the two messages. Because Hosler was in custody, it was suspected that defendant made the calls.

The next day (a Saturday), Judge Tomlinson’s secretary received another voicemail. Again, the caller ID listed Hosler’s name but the phone number was different than the two previous calls. The male caller stated: “Just a little message for Judge Tomlinson. Just want to let him know he’s a piece of s**t, and that I will see him. F*****g b***h. Tell him that is what he is, a f*****g b***h, and he’s gonna get smoked.” The secretary provided a copy of the voicemail transcript to Judge Tomlinson and Schulte. At Judge Tomlinson’s directive, Schulte reported the matter to law enforcement.

The defendant was later arrested and charged with making a terrorist threat. The prosecution subsequently added a charge of malicious use of a telecommunications service. At trial, the defendant acknowledged making the phone calls but denied that he was threatening Judge Tomlinson and said that he did not intend to hurt the judge or anyone else. He claimed that he simply wanted information about Hosler’s arrest and he wanted “to take [Judge Tomlinson] through the legal system and make sure that he’s … following the law like everyone else has to.”

The jury convicted the defendant on both counts and he was sentenced. The defendant appealed both convictions.

After the defendant appealed, the Court of Appeals issued its decision in People v Kvasnicka, ___ Mich App ___ (2025) (Kvasnicka I); vacated and remanded ___ Mich ___ (2025), holding that the terrorist threat statute, MCL 750.543m, was “facially unconstitutional.”

Relying on Kvasnicka I, the defendant filed a motion to remand his case to the trial court for dismissal of the making a terrorist threat conviction. But before the Court of Appeals could rule on the defendant’s motion, the Michigan Supreme Court issued an order vacating Kvasnicka I and remanding that case for further consideration (People v Kvasnicka, ___ Mich ___ (2025) (Kvasnicka II). Accordingly, the Court of Appeals denied the defendant’s motion to remand his case without prejudice, noting that he could refile the motion after there was a decision in Kvasnicka following remand (People v Meharg, unpublished order of the Court of Appeals, entered April 15, 2025 (Docket No. 372717)).

‘Plain Error’

At the outset, the Court of Appeals emphasized that Kvasnicka III controlled and required it to remand the matter for a new trial on terrorist threat count because the jury was improperly instructed.

In its analysis, the Court of Appeals cited applicable case precedent. In particular, the panel referenced People v Osantowski, 274 Mich App 593 (2007), rev’d in part on other grounds, 481 Mich 103 (2008), noting it had ruled in Osantowski that MCL 750.543m(1) “was not an unconstitutional restriction of free speech because it prohibited only true threats, i.e., statements that ‘encompass the communication of a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals,’ and because ‘the statutes require the existence of an intent to “intimidate or coerce”’ …. This Court also concluded that ‘the only intent that the prosecution had the burden to prove was defendant’s general intent to communicate a true threat.’”

Meanwhile, the U.S. Supreme Court held in Counterman v Colorado, 600 US 66 (2023), that the First Amendment “demands a subjective mens rea requirement in a true-threat case, ‘lest the true-threats prosecutions chill too much protected, non-threatening protection,’” the Court of Appeals explained. “Reasoning that recklessness was the constitutionally required mental-state standard in a true-threat case, the Counterman Court concluded that the prosecution ‘must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence.’”

According to the Court of Appeals, in Kvasnicka I “this Court relied on Counterman to conclude that MCL 750.543m(1)(a) is facially unconstitutional because it does not expressly require the prosecution to prove that a defendant acted recklessly, i.e., that he or she ‘consciously disregarded a substantial risk that his [or her] communications would be viewed as threatening violence.’”

However, on remand, “this Court applied the constitutional-doubt canon of statutory interpretation and determined that MCL 750.543m(1)(1) is not facially unconstitutional because it is ‘fairly possible’ to interpret the statute to include a mens rea requirement ‘that does not fall foul of the decision in Counterman,’” the Court of Appeals said, referencing Kvasnicka III. “This Court ‘construe[d] MCL 750.543m(1)(a) as requiring that the prosecution prove (1) that the defendant recklessly threatened (2) to commit an act of terrorism and (3) that the threat was communicated to another person.’ … The term ‘recklessly’ means that the defendant ‘consciously disregarded a substantial risk that his [or her] communications would be viewed as threatening violence.’”

Therefore, the Kvasnicka III panel “affirmed the trial court’s order denying Kvasnicka’s motion to dismiss the charges against him and remanded to the trial court for further proceedings,” the Court of Appeals wrote. “However, this Court directed the trial court to adapt the model jury instructions for making a terrorist threat and ‘instruct the jury that the prosecution must prove that Kvasnicka recklessly threatened to commit an act of terrorism, i.e., that he consciously disregarded a substantial risk that his [or her] communications would be viewed as threatening violence.’”

In the present case, the defendant asserted that he was denied due process because the jury was instructed to use a “reasonable person” mental state standard, the Court of Appeals said. “The trial court instructed the jury regarding the terrorist threat charge consistent with M Crim JI 38.4, which is the model jury instruction for making a terrorist threat. Indeed, a trial court must use the model jury instructions unless it determines that the instruction does not accurately reflect the state of the law.”

Kvasnicka III “establishes that defendant could not constitutionally be prosecuted for making a terrorist threat absent the prosecution proving that he recklessly threatened to commit an act of terrorism, by ‘consciously disregarding a substantial risk that his [or her] communications would be viewed as threatening violence,’” the Court of Appeals observed. “Further, the Kvasnicka III Court determined that M Crim JI 38.4(3) is contrary to law because it ‘only requires that the prosecution must prove that an objectively reasonable person would understand that his message was a true threat, not that the defendant must be subjectively aware that his message was a true threat. …’”

Because the jury in the present case was not instructed that the prosecution had to prove the defendant “recklessly threatened” to commit an act of terrorism, “[t]his was plain error,” the Court of Appeals stated.

Therefore, “we vacate defendant’s making a terrorist threat conviction and remand for a new trial on this count,” the Court of Appeals held. “On remand, the trial court shall instruct the jury that the prosecution must prove that defendant ‘recklessly threatened to commit an act of terrorism, i.e., that he consciously disregarded a substantial risk that his [or her] communications would be viewed as threatening violence.’”