People v. Osantowski

• Decision Date: 08 March 2007
• Docket Number: No. 264368.,264368.
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee/Cross-Appellant, v. Andrew Paul OSANTOWSKI, Defendant-Appellant/Cross-Appellee.
• Court: Court of Appeal of Michigan — District of US

736 N.W.2d 289

274 Mich. App. 593

PEOPLE of the State of Michigan, Plaintiff-Appellee/Cross-Appellant, v. Andrew Paul OSANTOWSKI, Defendant-Appellant/Cross-Appellee.

No. 264368.

Court of Appeals of Michigan.

Submitted February 13, 2007, at Detroit.

Decided March 8, 2007, at 9:00 a.m.

Released for Publication July 10, 2007.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Eric J. Smith, Prosecuting Attorney, Robert Berlin, Chief Appellate Attorney, and

Joshua D. Abbott, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Marla R. McCowan), Detroit, for the defendant.

Before: O'CONNELL, P.J., and SAAD and TALBOT, JJ.

TALBOT, J.

Defendant appeals his jury trial convictions of making a false report or threat of terrorism, MCL 750.543m; using a computer to commit a crime, MCL 752.796 and MCL 752.797(3)(f); and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b.¹ Defendant was sentenced to 30 months' to 20 years' imprisonment for both the threat of terrorism and using a computer to make a threat of terrorism convictions and to a consecutive two years' imprisonment for the felony-firearm conviction. The prosecutor cross-appeals, asserting a scoring error in the trial court's sentencing of defendant. We affirm in part, vacate in part, and remand for resentencing.

Defendant's convictions stem from electronic chat room conversations that defendant engaged in under the screen name "nazi_bot_sadistic." The primary topics for defendant in these communications were his feelings of hate and his plans for the infliction of death and terror on his own family members and other individuals whom he perceived as deserving of the fate defendant chose for them:²

i cant imagine going through life without killing a few people . . . nothing wrong with killion . . . people can be kissing my shotgun straight out of doom . . . i tell it how it is . . . if u dont like it, u die . . . if i dont like what u stand for, you die . . . if i dont like the way u look at me, u die . . . i choose who lives and who dies. . . .

Referencing his intent to engage in "my rampage" and asserting his readiness to act as being "on the brink of mass murder," defendant questioned whether others would later contemplate "why did he kill all these white people?" Defendant wrote that "im going to bring nightmares back to everyone" and "roam the land as a ghost still killing people."

In these online conversations, defendant discussed his social isolation and stress at school, stating:

i cant even take going to school . . . fuckin bullied . . . made fun of . . . pushed . . . people can get away with murder . . . thinking about school . . . how im going to get my ass kicked and made fun of . . . look at this, 8 months to live, people ruined my life, i dont even have any friend . . . i think girls realized that my real girl is violence . . . fuck this . . . not even after i kill people will that be near fair payback not even close . . . i cant wait till doom becomes reality . . . its funny . . . having the power to control who lives and who dies . . . saying peeakboo under tables and asking people why i should spare their lives and why they believei n god . . . .

Defendant hypothesized why school shootings did not occur "in the 30 40 50s," despite the prevalence of guns and opportunity, and suggested that integration and the lack of values being taught now are responsible for the increase in school violence asserting that "DIVERSITY KILLS." Expressing his concurrence with Hitler's ideals and implying that genocide was, in actuality, an attempt "to do a good thing," defendant later indicates that he would use the term "mass murderer" to label himself.

Defendant bragged about the weapons at his disposal, referencing his "stolen AK," shotguns with a "6 shot capacity before reload" and shortened barrels, "high capacity magazines" and "14 40rd mags for one rifle," and discussed videotaping himself with the guns and building pipe bombs. Defendant indicated he had sufficient weapons at his disposal to effectuate his plans, stating:

CHOOSE TO DIE IN THE NEAR FUTURE . . . ITS YOUR CHOICE . . . ANYTIME . . . IS A GO NOW . . . IT NO LONGER MATTERS WHEN . . . WHENEVER I DEEM RIGHT . . . I STILL NEED MORE STUFF IN . . . BUT I GOT THE BULK OF IT.

Defendant further asserted:

THEIR ALL PLAYING INTO MY FAVOR . . . see it really just topped notched the no burning back scale . . . NOW I DONT CARE IF THEIR ARE 500 POLICE . . . around the school . . . because if someone is determined enough to do something . . . they will do it . . . put all the security measures you ever want in there . . . it doesnt matter . . . if someone wants to do something, they will do it.

Additionally, defendant acknowledged that he was currently facing serious criminal charges,³ stating:

and the detective that is prosecuting me is sheriff deputy at my school, its she . . . so looks like ill be kicking up nbk some time soon . . . since im facing 5 years in prison/10,000 dollar fine/or 3 times the amount of damage . . . whichever is greater . . . now im not even worried about getting into a gunfight with her . . . cause it doestn matter . . . now im more than ever determined to blow her head off.

Defendant admitted that he had previously been expelled from a private school, asserting the basis for his school expulsion was the existence of rumors that he had been "looking for guns."

The recipient of defendant's online communications was a female teenager, Celia McGinty, with the screen name "dazedck00." Although McGinty engaged in ongoing conversations with defendant over the Internet, her concern regarding several of defendant's statements and assertions became evident as their conversations continued. When defendant bragged that he would be "famous" and "everyone will know who i am," McGinty responded, "whoa now . . . WTF are you talking about. . . ." After defendant affirmed his belief in the propriety of killing, McGinty indicated she was at a loss regarding "how im supposed to respond" and suggested defendant's assertions "sounds like bullshit to me." Despite initial disbelief, McGinty began to convey her concern, stating:

are you serious . . . and your gonnasee what you wanna see . . . i believe you i think its a stupid idea and this point your trying to prove isnt gonna end up the way you want it.

After defendant described his guns and ammunition, McGinty responded, "i think your crazy," and inquired whether defendant had ever discussed these ideas with anyone else. In response, defendant asserted that "im the real deal." Defendant appears to have acknowledged McGinty's growing uncertainty regarding his assertions by indicating, "IF YOU DONTL IKE WHAT I SAY . . . BLOCK ME . . . I WANTUTO."

McGinty gave copies of her online conversations with defendant to her father, George McGinty, a sergeant with the Washington State University Police Department, who in turn forwarded copies to the Clinton Township Police Department. The Clinton Township Police Department initiated an investigation and contacted defendant's school regarding the content of his communications with McGinty. Defendant was arrested on September 16, 2004, while attending class at Chippewa Valley High School. Because of concerns by parents and school officials, late afternoon and evening school-related events were canceled.

Although a search of defendant's school locker failed to locate any weapons, following the issuance and execution of a search warrant for defendant's home, police located in defendant's bedroom, and in the attic crawl space accessible from that room, an AK-47 semiautomatic assault rifle, a Mossberg shotgun, an Escort shotgun,⁴ a significant amount of ammunition, several knives, and a toolbox containing pipe bomb components (including several metal pipes, some with capped ends with screws or nails affixed to the outside), propane containers, bottles of ammonium nitrate and aluminum nitrate, and cans of sterno.

When questioned by the police, defendant denied an intention to hurt anyone, and said that his references to weapons and prior criminal activity were "all talk." Defendant asserted that his statements regarding the detective in his online chats were not "meant as a direct threat," but were merely an expression of his anger. Defendant denied being a danger to anyone and stated that his comments pertaining to "doom and doomsday" were, in actuality, references to a game that he played.

I. Constitutional Challenge

On appeal, defendant challenges the constitutionality of MCL 750.543m of the Michigan Anti-Terrorism Act, MCL 750.543a et seq., asserting that the statute is vague and fails to provide fair notice of proscribed conduct. Because defendant did not challenge the constitutionality of the statute in the lower court, we review for plain error affecting defendant's substantial rights. People v. Carines, 460 Mich. 750, 763, 597 N.W.2d 130 (1999); People v. Sands, 261 Mich.App. 158, 160, 680 N.W.2d 500 (2004).

The Michigan Anti-Terrorism Act, MCL 750.543a et seq., provides, in relevant part:

(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 the defendant did not have the intent or capability of committing the act of terrorism.

(3) A person who violates this section is guilty of a felony punishable by imprisonment for not more than 20 years or a fine of not more than $20,000.00, or both. [MCL 750.543m.]

The phrase "act of terrorism" is defined in MCL 750.543b(a) as:

a willful and deliberate act that is all of the following:...