            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



In re JP, Minor.


PEOPLE OF THE STATE OF MICHIGAN,                                    FOR PUBLICATION
                                                                    September 24, 2019
               Petitioner-Appellee,

v                                                                   No. 344812
                                                                    Gogebic Circuit Court
JP,                                                                 Family Division
                                                                    LC No. 2017-000048-DL
               Respondent-Appellant.


Before: SWARTZLE, P.J., and GLEICHER and M. J. KELLY, JJ.


SWARTZLE, P.J. (concurring)

        A. Alarming and Concerning, But Lack of Intent. I concur in full with the majority
opinion. As recounted by the majority, the messages in the Snapchat group are alarming and
concerning, and is understandable and commendable that S’s mother and authorities took the
matter seriously. Taken in isolation, the comments would certainly appear to qualify as those
that would tend “to terrorize, frighten, intimidate, threaten, [or] harass” a person. MCL
750.540e(1)(a)(1). In this new and evolving world of school violence and social media,
messages like these cannot be ignored, and thankfully in this case, they were not.
Notwithstanding this, I agree that there is an absence of evidence that respondent had the
requisite intent to threaten or otherwise negatively affect S or anyone else, as contemplated under
the current version of the criminal statute.

        B. Cautionary Tale. I write separately simply to point out how close respondent got to
the line of criminal responsibility. This would have been a much different case, in my opinion,
had respondent showed any of the messages to S, or even had respondent learned that another
person was going to show the messages to S and done nothing to minimize the harmful impact.
Respondent and other members of the group testified to receiving internet-safety training at
school, and they knew both that their messages could be difficult-to-impossible to delete (even in




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Snapchat) and that someone outside of the group might gain access to the messages at some
point.

        Similarly, this would have been a much different case had S or even someone else outside
of the group actually read the messages (prior to the investigation). The statute does not require
that the purported target of the message be the one who is actually terrorized or frightened. One
could envision a scenario where a parent is intentionally targeted and actually terrorized by
comments threatening harm to the parent’s child, but there is nothing on this record to suggest
that was the case here.

        Finally, this would have been a much different case had the jury been properly instructed,
as appellate courts are generally reluctant to overturn a jury verdict. See People v Stewart, 36
Mich App 93, 98; 193 NW2d 184 (1971). But, as the majority opinion observes, the jury did not
receive the appropriate instructions, and, in my opinion, the improper instructions alone justified
reversal in a case like this one. See People v Craft, 325 Mich App 598, 608; 927 NW2d 708
(2018).

       Accordingly, I concur.



                                                            /s/ Brock A. Swartzle




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