People v. Byczek

• Decision Date: 06 May 2021
• Docket Number: 350341
• Citation: 337 Mich.App. 173,976 N.W.2d 7
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Wilson Thompson BYCZEK, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

337 Mich.App. 173

976 N.W.2d 7

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.Wilson Thompson BYCZEK, Defendant-Appellant.

No. 350341

Court of Appeals of Michigan.

Submitted December 4, 2020, at Lansing.

Decided May 6, 2021, 9:10 a.m.

Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, and Melissa Powell, Prosecuting Attorney, for the people.

Dana B. Carron, Detroit, for defendant.

Before: Boonstra, P.J., and Gadola and Tukel, JJ.

Gadola, J. Defendant appeals on delayed leave granted his convictions of threatening an act of terrorism, MCL 750.543m(1), and malicious use of a telecommunications service, MCL 750.540e. Defendant was sentenced as a fourth-offense habitual offender, MCL 769.12, to serve a prison term of 7 to 30 years for making a terrorist threat, and to serve a concurrent sentence of 68 days for malicious use of a telecommunications service, with credit for 68 days served. We affirm.

I. FACTS

This case arises from a statement defendant made to a sheriff's deputy during a telephone conversation. On October 12, 2017, defendant called the Iron County Sheriff's Department to obtain a police report. Defendant had been seriously injured two years earlier while performing excavation work at Lac O'Seasons Resort in Iron River, sustaining a broken hip, a crushed pelvis, and dislocation of his other hip. Although not diagnosed with a brain injury, family members testified that defendant's injuries had affected his memory and ability to work. At the time that defendant called the Iron County Sheriff's Department, defendant had a civil lawsuit pending against the resort regarding his injuries and had been urged by his attorney to obtain the police report regarding the 2015 accident.

Iron County Sheriff's Deputy Adam Schiavo testified that he answered the telephone call from defendant while he was on duty on October 12, 2017.¹ Deputy Schiavo testified that defendant had identified himself and explained that he had been injured at Lac O'Seasons Resort in 2015, and that he had not been able to recover money from the resort. Deputy Schiavo testified that defendant had asked for a police report from the 2015 accident, and Schiavo had told defendant that he needed to file the proper paperwork. According to Schiavo, defendant had seemed agitated and was speaking very quickly and "rambling." Schiavo testified that defendant had indicated he was on the west coast but was on his way back to Michigan; that if he did not get the money owed to him, he was going to return to Michigan and "take care of it himself[;] and that it was going to be hash tag Las Vegas."² Deputy Schiavo testified that he did not remember at what point defendant had said that he would "take care of it myself," and agreed that defendant could have been referring to completing the paperwork necessary to obtain the police report. Schiavo testified that defendant hung up after he said "hash tag Las Vegas."

Less than two weeks before the telephone call, a widely publicized shooting had occurred in Las Vegas.³ Deputy Schiavo testified that when defendant said "hash tag Las Vegas," he determined that defendant was referring to the Las Vegas shooting, and he considered defendant's statement to be a threat directed to Lac O'Seasons Resort. Schiavo testified that defendant did not specifically mention the Las Vegas shooting, did not say that he was going to shoot anyone, did not indicate that he had a gun or other weapon, and did not state that he was angry with anyone. After locating the source of defendant's call as Spokane, Washington, Schiavo determined that there was no immediate danger to Lac O'Seasons Resort. Schiavo contacted Randy and Nancy Schauwecker, the managers and part-owners of the resort, and informed them of the telephone call and that it constituted a possible threat.

Nancy Schauwecker testified that she and her husband, Randy, manage and live at Lac O'Seasons Resort and that they own several of the buildings at the resort. Nancy confirmed that while defendant was doing excavation work at the resort in 2015, the ditch where he was working collapsed and he was seriously injured. She further testified that she had not had any contact with defendant, and that defendant had not directly threatened her or the resort.

Randy Schauwecker testified that he knew defendant before defendant worked at the resort because he had taught defendant as a seventh-grade student. Randy testified that after defendant was injured at the resort, defendant filed multiple claims against the resort and there was a pending lawsuit. Randy testified that defendant had contacted him after the accident and had been polite and apologetic about suing the resort for damages. Randy testified that defendant never directly communicated any threats of terrorism to him.

Defendant's mother, Starr Adank, testified that defendant and his girlfriend, Amery Saylor, had moved to Spokane, Washington in August 2017. On October 11, 2017, she spoke with defendant, who told her he was returning to Michigan. During the conversation, Adank encouraged defendant to call the police to find out if there was a police report regarding the 2015 accident. Adank testified that defendant later told her he called to try to get a police report but had become frustrated talking to the deputy. Regarding defendant's use of the phrase "hash tag Las Vegas," Adank testified that defendant often traveled to Las Vegas and had used that term to mean "I'm going to Las Vegas again." Adank testified that defendant, in fact, went to Las Vegas on November 3, 2017, before he moved back to Michigan.

Iron County Sheriff's Lieutenant Ryan Boehmke testified that he had listened to a phone conversation between defendant and Adank on December 9, 2017. During the conversation, defendant explained that during the October 12, 2017 phone call to the police, he had asked to file a complaint against Lac O'Seasons and had said, "They're going to pay for what they did to me"; "I am coming back to Michigan. I'm going to handle this on my own" or "[h]andle this myself"; and then, before hanging up, he had said, "Now it's hash tag Las Vegas."

Defendant's brother, Todd Byczek, testified that defendant told him that he had made "some kind of threat to Iron County where, you know, a threat for mass shooting and referenced Las Vegas...." Todd also testified that he had gone to Las Vegas with defendant in November 2017, but that the trip had been planned "kind of last second," on or around October 31, 2017.

Todd's wife, Elizabeth Byczek, testified that defendant and Saylor began living with her and Todd in Washington in August or September 2017. Elizabeth testified that defendant was frustrated about his lawsuit against Lac O'Seasons Resort and believed that the resort owed him money. She testified that on October 12, 2017, defendant told her that he had called the Iron County Sheriff's Department; he appeared embarrassed and mentioned that he had lost his temper and made a threat by referring to the recent mass shooting in Las Vegas. Elizabeth testified that, to her knowledge, defendant did not have a trip planned to Las Vegas on October 12, 2017; rather, Elizabeth planned a trip for the two couples to Las Vegas for November on October 30, 2017. The e-mail confirmation of the four plane tickets purchased by Elizabeth on October 31, 2017, was admitted into evidence. Elizabeth testified that she, Todd, defendant, and Saylor had traveled to Las Vegas on November 3, 2017, and returned on November 6, 2017.

FBI Special Agent David Whitlow testified that he had assisted in the investigation and had interviewed defendant. During the interview, defendant had admitted that he had called the Iron County Sheriff's Department on October 12, 2017, and had said "something to the effect of, ‘You don't know what people are thinking, like that guy in Las Vegas.’ " Whitlow testified that defendant had explained that he had been agitated, and in hindsight, he wished he would have chosen his words more carefully. Whitlow conducted a cursory review of defendant's cell phone and bedroom and did not find any weapons or anything that led Whitlow to believe that there was an imminent threat of danger.

After a jury trial, defendant was convicted of threatening an act of terrorism, MCL 750.543m(1), and malicious use of a telecommunications service, MCL 750.540e. The trial court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to serve a prison term of 7 to 30 years for making a terrorist threat and to serve a concurrent sentence of 68 days for malicious use of a telecommunications service, with credit for 68 days served. Defendant now appeals.

II. ANALYSIS

Defendant contends that there was insufficient evidence to convict him under MCL 750.543m(1) of threatening an act of terrorism because the prosecutor failed to present evidence that he made a threat. Defendant similarly contends that there was insufficient evidence to support a conviction of malicious use of a telecommunications service under MCL 750.540e(1)(a). Defendant argues that the jury's conclusion that his use of the phrase "hash tag Las Vegas" was a threat is not supported by the record and therefore is insufficient to support the verdict. We disagree.

A. STANDARD OF REVIEW

This Court reviews de novo a challenge to the sufficiency of the evidence.

People v. Speed , 331 Mich. App. 328, 331, 952 N.W.2d 550 (2020). In determining the sufficiency of the evidence, we view the evidence in the light most favorable to the prosecution to determine whether a rational trier of fact could find that the essential elements of the crime were proven beyond a reasonable doubt. See People v. Harris , 495 Mich. 120, 126, 845 N.W.2d 477 (2014). In doing so, we draw all reasonable inferences and make credibility choices in support of the verdict. People v. Oros , 502 Mich. 229, 239, 917 N.W.2d 559 (2018). We also review de novo issues of statutory interpretation. Speed , 331 Mich. App. at...