                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   January 19, 2016
               Plaintiff-Appellee,

v                                                                  No. 322482
                                                                   Wayne Circuit Court
SEAN WILLIAM QUIGLEY,                                              LC No. 13-009245-FC

               Defendant-Appellant.


Before: SAAD, P.J., and WILDER and MURRAY, JJ.

PER CURIAM.

        Defendant appeals as of right his jury trial convictions of terrorism, MCL 750.543f,
kidnapping, MCL 750.349(1)(b), making a terrorist threat or false report of terrorism, MCL
750.543m, and making a false report of a bomb threat, MCL 750.411a(2)(b). Defendant was
sentenced to 10 to 15 years’ imprisonment for the terrorism and kidnapping convictions, 10 to 20
years’ imprisonment for the making a terrorist threat or false report of terrorism conviction, and
two to four years’ imprisonment for the making a false report of a bomb threat conviction. We
affirm in part, reverse in part, and remand for resentencing and a determination of the
appropriate restitution amount.

        This case arises from defendant’s misguided attempt to have law enforcement check on
his friend, Sarah Mazue, because he feared for her safety. After being unable to reach Mazue by
phone for a time, defendant became convinced that she had become a victim of human
trafficking or forced prostitution. He sought assistance from the Westland Police Department,
the Federal Bureau of Investigation, and the Department of Homeland Security, all to no avail.
Defendant then went to the Westland City Hall and held the mayor’s executive secretary,
Shannon Ackron, as a hostage until she escaped several hours later. Defendant told Ackron and
others that he had a bomb and would detonate it if his demands were not met. After defendant
surrendered, police officers discovered that he had only a small flashlight and a cellular
telephone charger, not a bomb.

              I. APPLICABILITY OF THE MICHIGAN ANTI-TERRORISM ACT

       Defendant contends that the legislative history of the Michigan Anti-Terrorism Act (“the
Act”), MCL 750.543a et seq., reveals that the Legislature did not intend the Act to apply to a
defendant unless he or she targeted a larger population with the intent to bring the government
down, severely cripple government’s ability to efficiently function, or keep the populace in a
                                               -1-
state of fear or terror, and that defendant did not intend any of the foregoing. Defendant then
focuses on the statutory language, and argues that he did not commit a “violent felony” and so
could not be convicted of terrorism. We disagree with the former argument, but agree with the
latter.

       To preserve a challenge to a trial court’s interpretation or application of a statute, a
defendant must first raise the issue before the trial court. See People v Kimble, 470 Mich 305,
312, 684 NW2d 669 (2004). Defendant raises the issue of the Michigan Anti-Terrorism Act’s
application to his case for the first time on appeal. Thus, the issue is unpreserved for appellate
review. See id.

        We review unpreserved issues for plain error affecting substantial rights. People v
Bosca, 310 Mich App 1, 41; 871 NW2d 307 (2015). To show plain error, a defendant must
establish that “1) error . . . occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain
error affected substantial rights.” People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).
An error affects the defendant’s substantial rights if it prejudiced the defendant by affecting the
outcome of the trial. Id. Even if a defendant can satisfy all three requirements, appellate reversal
is warranted only when the plain error resulted in the conviction of an actually innocent
defendant or when the error seriously affected the “fairness, integrity or public reputation of
judicial proceedings independent of the defendant’s innocence.” Id. (citation and quotation
marks omitted).

        Further, our review of a prosecutor’s exercise of discretion in charging a defendant with a
specific offense “is limited to whether an abuse of power occurred, i.e., whether the charging
decision was made for reasons that are unconstitutional, illegal, or ultra vires.” People v Conat,
238 Mich App 134, 149; 605 NW2d 49 (1999).

       Resolution of defendant’s argument requires analysis of the language contained in the
Act. “The foremost rule of statutory construction is to discern and give effect to the intent of the
Legislature.” People v Lyon, 310 Mich App 515, 517; ___ NW2d ___ (2015). In doing so, we
focus on the plain language of the statute and “must conclude that the Legislature intended the
meaning clearly expressed[.]” Id. (citation and quotation marks omitted; alteration in original).
Generally, we interpret statutory terms according to their ordinary meaning, but we “must accept
and apply the definition of terms specifically provided in a statutory scheme.” Id.

        The Act was passed in the wake of the September 11, 2001 terrorist attacks on the United
States and proscribes both actual terrorist activity and threats or false reports of the same. MCL
750.543f; MCL 750.543m. Among various other provisions, MCL 750.543b(a)(iii) defines an
“act of terrorism” as one “that 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.” Under the Act, “[a] person is guilty of terrorism when that person knowingly and
with premeditation commits an act of terrorism.” MCL 750.543f. MCL 750.543m, meanwhile,
provides that a person may be convicted of making a terrorist threat or false report of terrorism
regardless of his or her actual intent and capability to carry out the threat, so long as the person’s
actions satisfy the elements of the offense.



                                                  -2-
        Regardless of the legislative history defendant provides in his brief on appeal, we
determine legislative intent by focusing on the statute’s plain language. See Lyon, 310 Mich
App at 317. Although defendant contends that a necessity for prosecutorial restraint—that is,
that prosecutors would only charge a defendant under the Act when the defendant possessed a
certain, narrow intent—was implicit in and vital to the Legislature’s passage of the Act, the plain
language of the statute does not support such a conclusion. It is true that under the Act a person
must have 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” to perform an
act of terrorism under MCL 750.543b(a)(iii). And, to violate MCL 750.543m(1)(a), a person
must simply threaten an act of terrorism and communicate that threat to another, and MCL
750.543m(2) provides that “[i]t is not a defense . . . that the defendant did not have the intent or
capability of committing the act of terrorism.” But the answer does not lie in these general
principles, but through an application of the sections at issue, and whether those sections apply to
defendant’s circumstance. As shown below, they do in part.1

                            II. SUFFICIENCY OF THE EVIDENCE

        Defendant contends that he was improperly convicted of terrorism and making a terrorist
threat or false report of terrorism because kidnapping is not a “violent felony” under MCL
750.543b(h) and, thus, may not serve as a proper predicate felony for the offenses. The
prosecution concedes error in conjunction with both offenses, but does not concur with
defendant’s requested relief. We agree that the prosecution presented insufficient evidence to
sustain defendant’s terrorism conviction, but disagree with defendant’s assertion and the
prosecutor’s concession of error regarding defendant’s conviction for making a terrorist threat or
false report of terrorism.

        We review de novo a defendant’s challenge to the sufficiency of the evidence supporting
his or her conviction. People v Henderson, 306 Mich App 1, 8; 854 NW2d 234 (2014). “[T]his
Court must view the evidence in a light most favorable to the prosecution and determine whether
a rational trier of fact could find that the essential elements of the crime were proven beyond a
reasonable doubt.” People v Kanaan, 278 Mich App 594, 618; 751 NW2d 57 (2008).

                                        A. MCL 750.543F

        MCL 750.543f governs criminal terrorist actions and provides that “[a] person is guilty of
terrorism when that person knowingly and with premeditation commits an act of terrorism.”
MCL 750.543b(a), in turn, defines an act of terrorism:



1
  The prosecutor did not abuse her power by charging defendant under the Act. See Conat, 238
Mich App at 149. Defendant does not argue that the prosecutor charged him for
unconstitutional, illegal, or ultra vires reasons, but instead merely argues that defendant was not
the sort of offender that the Legislature envisioned when it passed the Act. But, as just
discussed, this argument is contrary to the act’s plain language, and the prosecutor did not abuse
her power by appropriately charging defendant under the Act’s specific provisions. See id.


                                                -3-
       (a) “Act of terrorism” means a willful and deliberate act that is all of the
       following:

       (i) An act that would be a violent felony under the laws of this state, whether or
       not committed in this state.

       (ii) An act that the person knows or has reason to know is dangerous to human
       life.

       (iii) An act that 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.

On appeal, defendant asserts only that the prosecution failed to prove beyond a reasonable doubt
the first element of an “act of terrorism,” i.e., that defendant committed a violent felony as
defined by the act. For purposes of the Act, MCL 750.543b(h) defines a “violent felony” as

       . . . a felony in which an element is the use, attempted use, or threatened use of
       physical force against an individual, or the use, attempted use, or threatened use
       of a harmful biological substance, a harmful biological device, a harmful
       chemical substance, a harmful chemical device, a harmful radioactive substance, a
       harmful radioactive device, an explosive device, or an incendiary device.
       [Emphasis added.]

       MCL 750.349, Michigan’s kidnapping statute, provides:

       (1) A person commits the crime of kidnapping if he or she knowingly restrains
       another person with the intent to do 1 or more of the following:

                                               ***

       (b) Use that person as a shield or hostage.

                                               ***

       (2) As used in this section, “restrain” means to restrict a person’s movements or to
       confine the person so as to interfere with that person’s liberty without that
       person’s consent or without legal authority. The restraint does not have to exist
       for any particular length of time and may be related or incidental to the
       commission of other criminal acts.

        By way of comparison, MCL750.349b, Michigan’s unlawful imprisonment statute,
employs a different definition of “restrain.” For purposes of unlawful imprisonment, a person
restrains another when he or she “forcibly restrict[s] a person’s movements or . . . forcibly
confine[s] the person so as to interfere with that person’s liberty without that person’s consent or
without lawful authority.”        MCL 750.349b(3)(a) (emphasis added).              Thus, unlawful
imprisonment requires an element of force, whereas kidnapping does not.


                                                -4-
        The prosecution failed to prove beyond a reasonable doubt the elements of terrorism
because, as argued by both defendant and the prosecution on appeal, kidnapping is not a “violent
felony” under MCL 750.543b(h). To find defendant guilty of kidnapping, the prosecution was
required only to prove beyond a reasonable doubt that defendant knowingly restrained Ackron
with the intent to accomplish one or more of the listed actions—in this case, the intent to use her
as a “shield or hostage.” MCL 750.349. Force is not a required element of the offense.
Accordingly, kidnapping is not a violent felony as defined in MCL 750.543b(h). And without
presenting sufficient evidence of a violent felony under MCL 750.543b(a)(i), the prosecution
failed to prove beyond a reasonable doubt all the elements of an “act of terrorism,” and, by
extension, that defendant “knowingly and with premeditation commit[ed] an act of terrorism[,]”
MCL 750.543f(1).

        The prosecution, however, may still retry defendant for terrorism without running afoul
of the Double Jeopardy clause of the United States Constitution. In People v Watson, 245 Mich
App 572, 599-600; 629 NW2d 411 (2001), we were faced with a defendant who had been
convicted for possession of a firearm during the commission of a felony (felony-firearm), with
CSC I as the underlying felony. The defendant was also convicted of various other felonies. Id.
at 574. This Court concluded that there was insufficient evidence to sustain the defendant’s
felony-firearm conviction because there was no evidence that he had committed CSC I while
possessing a firearm. Id. at 595-596. Despite the reversal, however, we held that because “there
[was] sufficient evidence to convict [the] defendant of felony-firearm using a different predicate
offense, retrial using the applicable predicate offense is permitted.” Id. at 601. Additionally, we
held that a retrial did not violate Double Jeopardy precepts because “there was no evidentiary
insufficiency equivalent to a verdict of acquittal in this case; instead, there was a defect in the
charging instrument.” Id. at 600 (citation and quotation marks omitted).

        In this case, the prosecution introduced sufficient evidence to prove beyond a reasonable
doubt the elements of kidnapping. But no matter how much evidence of kidnapping the
prosecution produced, the offense could not properly serve as the predicate felony for terrorism
because it is not a violent felony under the Act. See MCL 750.543b(a)(i) and (h). Sufficient
evidence existed, however, to convict defendant of terrorism using a different predicate
offense—indeed, the prosecution admits in its brief on appeal that it intends to retry defendant
using unlawful imprisonment as the predicate felony. Thus, as in Watson, the prosecution may
retry defendant using a proper predicate felony. See Watson, 245 Mich App at 601.

                                       B. MCL 750.543M

       MCL 750.543m provides, in pertinent part:

       (1) A person is guilty of making a terrorist threat or 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. [Emphasis added.]

                                                -5-
The Michigan Supreme Court has explicitly held that a person may be convicted of threatening
to commit an act of terrorism under MCL 750.543m(1)(a) without actually committing an act of
terrorism or being convicted of terrorism under MCL 750.543b(a). People v Osantowski, 481
Mich 103, 110; 748 NW2d 799 (2008). As discussed above, MCL 750.543b(a) defines an “act
of terrorism” as (1) a willful and deliberate act that (2) would constitute a violent felony, (3) that
the defendant would have reason to know is dangerous to human life, and (4) is intended to
intimidate or coerce a civilian population or affect the conduct of government or a unit of
government through intimidation or coercion.

        Again, defendant contends that the prosecution presented insufficient evidence to convict
him of threatening an act of terrorism because the prosecution’s predicate felony offense of
kidnapping does not constitute a violent felony. However, the prosecution’s theory for
defendant’s conviction was not that he threatened an act of terrorism, but rather that he
knowingly made a false report of terrorism, particularly that he made a false report of a bomb
threat or harmful device. This is demonstrated by the trial court’s preliminary instructions to the
jury and the prosecutor’s closing arguments.

       Prior to trial, the trial court gave the jury the following preliminary instruction:

               Count 3, the defendant is charged with communicating a threat of
       committing a terrorist act or a false report of terrorism, Count 3. To prove this
       charge the prosecution must prove each of the following elements beyond a
       reasonable doubt. First, that the defendant threatened to commit an act of
       terrorism and communicated that threat to some other person; that the defendant
       knowingly made a false report of an act of terrorism and communicated that
       report to another person, knowing it to be false.

                It is not a defense that the defendant did not have the intent or capability
       of committing the act of terrorism. And terrorism means a willful and deliberate
       act that would be a violent felony under the laws of this state, whether or not
       committed in this state, to wit, kidnapping, and/or false report or threat of
       bomb/harmful device, has reason to know is dangerous to human life, meaning
       that it can cause a substantial likelihood of death or serious injury and 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. [Emphasis
       added.]

Further, in closing argument, the prosecution argued that making a false report of a bomb threat
or harmful device would support a finding of a willful and deliberate act that constitutes a violent
felony. The prosecutor stated:

               And the last three - - the last two counts I’m going to talk about them
       together. 3 and 4 is a report of terrorism and a bomb threat and/or a harmful
       device. He reported it. He’s the one got on the phone. He reported everything he
       was doing to the police. He told Ms. Ackron to call 911 because, “Now you’re
       going to be my hostage,” and she said she was shocked at first, but she did it. She
       talked to the police for a short while, and then he took over to let them know what

                                                 -6-
       was going on. He reported that he had six pounds of - - he had some explosives,
       six pounds. He said he found out how to make it on the internet, according to the
       911 tape and that he wanted them to look into what was going on. So he reported
       it himself. He reported that he had a bomb. And I don’t have to prove that he
       actually had a bomb.

               And as to the terrorist count, nothing in these counts say I have to prove
       that he actually had a bomb. The evidence is he didn’t have a bomb, but none of
       the elements that the Court will read to you will say that I had to prove he had
       one. I have to prove that he reported that he had one just like he reported that a
       terrorist threat, and I’ve already submitted to you that I believe that we’ve
       submitted evidence beyond a reasonable doubt that he did commit the crime of
       terrorism, and the he reported it to the police agency. So I think based on that,
       I’ve submitted to you evidence beyond a reasonable doubt as to Counts 3 and 4.

        To find defendant guilty of making a false report of a bomb threat or harmful device, the
prosecution was required to prove that defendant knowingly made a false report of a bomb threat
or harmful device and that he stated or implied that he had the ability to destroy, throw down or
injure the whole or any part of any building or object, places or causes to be placed in, upon,
under against or near such building or object any gun powder or other explosive substance which
upon explosion causes the death of any person. MCL 750.411a(2)(a). Thus, making a false
report of a bomb threat or harmful device constitutes a “violent felony” because an element of
the crime is the use, attempted use, or threated use of an explosive device. MCL 750.543(b)(h).

        The prosecution presented sufficient evidence to prove beyond a reasonable doubt that
defendant knowingly made a false report of an act of terrorism and communicated the false
report to another person, knowing the report was false. First, he told Ackron that he had
explosives, a detonator, and a blasting cap, although he in fact did not possess these items. He
also told Westland Police Sergeant Steven Ewing that he was going to keep Ackron with him
until the police officers resolved the situation to his liking, and he said that he would trade
Ackron as a hostage if Sergeant Ewing sent in an unarmed police officer in her stead. Defendant
additionally told Ackron that he would detonate his “bomb” if Sergeant Ewing and his partner
entered the office. When Sergeant Ewing and his partner opened the door to the office,
defendant said, “Don’t do it, don’t make me, I don’t want to do this[,]” indicating that he would
indeed detonate his explosives if they came closer. Defendant’s statements to police officers
certainly constitute making a false report of a bomb threat or harmful device while stating or
implying that he had the ability to destroy any part of Westland City Hall. MCL 750.411a(2)(a).
Therefore, the prosecution presented sufficient evidence to prove a willful and deliberate act that
would constitute a violent felony. MCL 750.543b(h). Defendant should also have reasonably
known that making these false reports of a bomb threat was dangerous to human life—even if
only his own—and there is no question that he was attempting to “influence or affect the conduct
of government or a unit of government through intimidation or coercion.” MCL 750.543b(a)(ii)
and (iii). The evidence therefore supported a conclusion that defendant thus knowingly made a
false report of terrorism. MCL 750.543m(1)(b). Defendant, in turn, communicated the false
reports of terrorism to Ackron, Sergeant Ewing, and the 911 dispatch operator. See id. The
prosecution accordingly proved beyond a reasonable doubt that he made a false report of
terrorism and communicated those threats to another person. Id.

                                                -7-
                                  III. OFFENSE VARIABLES

       Defendant contends that the trial judge erred in assessing 25 points for Offense Variable
(OV) 9 because Ackron was defendant’s only victim, and that the judge further erred in assessing
100 points for OV 20 because defendant did not commit an act of terrorism. We agree with
defendant’s conclusions, albeit for slightly different reasons.

        A defendant preserves the issue of a trial court’s incorrect assessment of offense variables
by objecting at sentencing or by filing a motion for resentencing or a proper motion for remand.
See MCL 769.34(10); People v Gibbs, 299 Mich App 473, 491-492; 830 NW2d 821 (2013).
Defense counsel objected at sentencing to the trial court’s assessment of 25 points for OV 9.
Counsel, however, did not object to the trial court’s assessment of 100 points for OV 20, nor did
he file a motion for resentencing or to remand. Thus, the issue of the trial court’s assignment of
25 points to OV 9 is preserved, but the issue of the court’s assignment of 100 points to OV 20 is
unpreserved for appellate review. See MCL 769.34(10); Gibbs, 299 Mich App at 491.
Nevertheless, we will review the OV 20 assessment because, when taking OV 20 into account,
defendant’s kidnapping sentence fell outside the appropriate guidelines range. See Kimble, 470
Mich at 310 (holding that MCL 769.34(10) “does not preclude appellate review if the sentence is
outside the appropriate guidelines range, even if the party failed to raise the issue at sentencing,
in a motion for resentencing, or in a motion to remand.”).

                                             A. OV 9

       MCL 777.39 provides, in relevant part:

       (1) Offense variable 9 is number of victims. Score offense variable 9 by
       determining which of the following apply and by assigning the number of points
       attributable to the one that has the highest number of points:

                                               ***

       (b) There were 10 or more victims who were placed in danger of physical injury
       or death, or 20 or more victims who were placed in danger of property loss ............25 points

                                               ***

       (d) There were fewer than 2 victims who were placed in danger of physical injury
       or death, or fewer than 4 victims who were placed in danger of property loss .........0 points

For purposes of OV 9, a sentencing court must “[c]ount each person who was placed in danger of
physical injury or loss of life or property as a victim.” MCL 777.39(2)(a). “OV 9 is scored only
on the basis of the defendant’s conduct during the scoring offense.” People v Carrigan, 297
Mich App 513, 515; 824 NW2d 283 (2012). “Property loss” under OV 9 may include financial
loss. People v Mann, 287 Mich App 283, 286; 786 NW2d 876 (2010). A first responder may
qualify as a victim, People v Fawaz, 299 Mich App 55, 63; 829 NW2d 259 (2012), as may a
person who was unaware that he or she was in danger at the time of the offense, People v
Gratsch, 299 Mich App 604, 624; 831 NW2d 462 (2013), vacated in part on other grounds by


                                                -8-
495 Mich 876 (2013). A victim, however, must be a direct victim, not simply a member of the
community who the crime affects indirectly. Carrigan, 297 Mich App at 515-516.

        The trial court erred in assigning 25 points to OV 9.2 The evidence indicated that, with or
without explosives, defendant put Ackron in danger of physical injury by taking her hostage and
making it clear that he would not allow her to leave. The same cannot be said of Sergeant Ewing
and his partner, neither of whom were in danger of physical injury in spite of their justified belief
that defendant had a bomb and was willing to use it. The identical principle obtains regarding
the police officers and firefighters on the scene, who, though inconvenienced and probably
rattled by the incident, were never in danger of death or physical injury.

        As for the trial judge’s opinion that Westland taxpayers and the community in general
were victims for purposes of OV 9, this Court’s holding in Carrigan is instructive. The
defendant in that case vandalized two schools. Carrigan, 297 Mich App at 516. The trial judge
assigned 25 points to OV 9 after stating that “this really was a crime against the community . . .
.” Id. at 514-515. This Court reversed, holding that there were, at most, two victims of the
defendant’s conduct: the two schools whose property had been directly affected. Id. at 516. This
Court further noted that “[u]nder the trial court’s broad interpretation, nearly every criminal
offense could result in a score of 25 points for OV 9 because the community as a whole always
indirectly suffers when a crime is committed.” Id.

        The trial judge assigned 25 points to OV 9 partly because he considered the taxpayers
who “owned” City Hall to be victims. He also considered every citizen of Westland a victim
because they were somehow placed in jeopardy as a result of the necessary police and fire
response to defendant’s actions. As in Carrigan, any danger to person or property that the
citizens of Westland faced as a result of defendant’s conduct was, at best, indirect. Accordingly,
as this Court concluded in Carrigan, under these facts the community at large cannot be
considered victims under OV 9. This is especially true when there was no evidence to suggest
that defendant actually damaged the building or put anyone besides Ackron in danger of physical
injury. Thus, the trial judge erred in assessing 25 points for OV 9.

                                             B. OV 20

       MCL 777.49a provides, in pertinent part:




2
 We acknowledge the Michigan Supreme Court’s recent holding in People v Lockridge, 498
Mich 358, 364-365; 870 NW2d 502 (2015), which declared Michigan’s sentencing guidelines
unconstitutional to the extent that the guidelines “require judicial fact-finding beyond facts
admitted by the defendant or found by the jury to score offense variables (OVs) that mandatorily
increase the floor of the guidelines minimum sentence range[.]” Defendant does not, however,
assert a claim under Lockridge, and we accordingly do not consider the potential effect of the
decision on his appeal.


                                                -9-
       (1) Offense variable 20 is terrorism. Score offense variable 20 by determining
       which of the following applies and by assigning the number of points attributable
       to the one that has the highest number of points:

       (a) The offender committed an act of terrorism by using or threatening to use a
       harmful biological substance, harmful biological device, harmful chemical
       substance, harmful chemical device, harmful radioactive material, harmful
       radioactive device, incendiary device, or explosive device .......................................100 points

       (b)The offender committed an act of terrorism without using or threatening to use
       a harmful biological substance, harmful biological device, harmful chemical
       substance, harmful chemical device, harmful radioactive material, harmful
       radioactive device, incendiary device, or explosive device .......................................50 points

                                                           ***

       (d) The offender did not commit an act of terrorism or support an act of terrorism,
       a terrorist, or a terrorist organization .........................................................................0 points

An “act of terrorism” under OV 20 is defined in MCL 750.543b(a), discussed at length above.
MCL 777.49a(2)(a). The Michigan Supreme Court has held that a terrorist threat, even without
other overt terrorist actions, may qualify as an “act of terrorism” under OV 20, so long as the
threat itself satisfies the requirements of MCL 750.543b(a). See Osantowski, 481 Mich at 110.

       The parties did not discuss OV 20 at sentencing, other than to agree that 100 points was
appropriate given defendant’s convictions. And despite the fact that we are reversing
defendant’s terrorism conviction, the trial court’s assessment of 100 points could still stand
because a conviction for making a terrorist threat may provide sufficient justification for
assigning 100 points to OV 20. See Osantowski, 481 Mich at 110-111.

        The evidence, however, did not support the assessment of 100 points for OV 20. An
analysis of Osantowski, one of Michigan’s only published cases involving the Anti-Terrorism
Act, supports this conclusion. In Osantowski, the defendant, a high-school student, e-mailed a
friend and threatened to commit “mass murder” at the school using firearms and pipe bombs that
he was constructing. Osantowski, 481 Mich at 105. The defendant was convicted of making a
terrorist threat, among other felonies. Id. At sentencing, the prosecution argued that the trial
court should assess 100 points for OV 20 because the defendant had threatened to use an
explosive device. Id. at 106. The trial court disagreed, assigning zero points to OV 20. Id. This
Court reversed, holding that the trial court should have assigned 100 points to OV 20. Id. The
Michigan Supreme Court reversed again, holding that, while a terrorist threat could warrant an
assessment of 100 points for OV 20 under the proper circumstances, there was no evidence
demonstrating that the defendant knew or had reason to know that his e-mail messages were
dangerous to human life, as required by MCL 750.543b(a)(ii). Id. at 110, 112.

        In this case, defendant threatened to detonate his “bomb” if his demands were not met or
if Sergeant Ewing and his partner came into the mayor’s office. This was clearly a threat to use
an explosive device, which may, without more, be a “violent felony” under the Michigan Anti-
Terrorism Act. See MCL 750.543b(h); Osantowski, 481 Mich at 110. In order to qualify as an
                                                           -10-
“act of terrorism,” however, the threat must also have been “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[,]” and the defendant must have known or had reason to know
that it was dangerous to human life. MCL 750.543b(a)(ii) and (iii).

        Defendant certainly intended to influence or affect the conduct of the Westland Police
Department and the city administration by threatening to detonate an explosive device; indeed,
his only stated goal was to force them to check on Mazue’s welfare. MCL 750.543b(a)(iii). And
there is little doubt that defendant had reason to know that his overall conduct—taking Ackron
hostage, telling the police officers that he had a bomb and was willing to detonate it, and telling
Sergeant Ewing that he would keep Ackron with him until the police officers complied with his
demands—was dangerous to at least his own life. Like the defendant in Osantowski, however,
there was no evidence demonstrating that defendant knew or had reason to know that the threats
themselves were dangerous to human life. Divorced from his conduct, defendant’s statements
were merely unsubstantiated threats that posed no direct danger to anyone. See Osantowski, 481
Mich at 112.

        We acknowledge that there could be any number of facts in the record that might
adequately justify an assessment of 100 points for OV 20—just as there may be any number of
proper predicate felonies to support a conviction for terrorism upon retrial. Considering that the
trial court provided absolutely no basis for its assessment, however, we need not concoct and
rationalize every possible basis under which a 100-point assessment might be appropriate.
Rather, we conclude that the trial court erred in assigning 100 points to OV 20 because the judge
made no record to support his assessment and because defendant’s threat, considered alone, was
not an act of terrorism under MCL 750.543b(a). See People v Hardy, 494 Mich 430, 438; 835
NW2d 340.

        In sum, the trial court erred in assigning 25 points to OV 9 and 100 points to OV 20.
With a prior-record variable (PRV) total of 20 and an OV total of 130, these sentencing errors
resulted in a sentencing guidelines range of 135 to 225 months. See MCL 777.62. Absent the
errors, defendant’s sentencing guidelines range would have been 42 to 70 months. See id.
Accordingly, defendant is entitled to resentencing. See People v Jackson, 487 Mich 783, 793-
794; 790 NW2d 340 (2010) (“. . . a defendant is entitled to resentencing when the trial court
erred in scoring an offense variable, and the error affected the statutory sentencing guidelines
range.”).

                                        IV. RESTITUTION

        Defendant contends that the trial court erred in ordering him to pay $100,000 restitution
to the city of Westland because the city suffered no actual losses and there was no documentary
evidence to support the trial court’s award. We agree.

       A criminal defendant preserves the issue of a trial court’s restitution order by objecting at
the time of sentencing. People v Newton, 257 Mich App 61, 68; 665 NW2d 504 (2003).
Defendant objects to the trial court’s restitution order for the first time on appeal. Thus, the issue
is unpreserved and we review the trial court’s restitution award for plain error affecting
substantial rights. Id. A party claiming error must demonstrate that (1) an error occurred; (2) the

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error was plain; and (3) the plain error affected a substantial right of the defendant. Carines, 460
Mich at 763-764.

        Crime victims have both constitutional and statutory rights to restitution. Const 1963, art
1, § 24; People v Grant, 455 Mich 221, 229; 565 NW2d 389 (1997). The purpose of restitution
is to “allow crime victims to recoup losses suffered as a result of criminal conduct.” Id. at 230.
The Crime Victims’ Rights Act (CVRA), MCL 780.751 et seq., determines whether a sentencing
court’s restitution order is appropriate. Id. at 233. MCL 780.766(1) defines a “victim” as “an
individual who suffers direct or threatened physical, financial, or emotional harm as a result of
the commission of a crime.” A governmental entity may also be a victim under the CVRA. Id.
A trial court’s restitution award is mandatory, not discretionary. MCL 780.766(2).

        Importantly, however, “restitution is not a substitute for civil damages but only
encompasses those losses that are (1) easily ascertained and measured, and (2) a direct result of
the defendant’s criminal acts.” People v White, 212 Mich App 298, 316; 536 NW2d 876 (1995).
Moreover, in order to be eligible for restitution, a loss must have been part of the factual
foundation of the defendant’s conviction. People v McKinley, 496 Mich 410, 419; 852 NW2d
770 (2014). A sentencing court should calculate the amount of loss based on the evidence.
People v Cross, 281 Mich App 737, 738; 760 NW2d 314 (2008).

        Finally, “[o]nly an actual dispute, properly raised at the sentencing hearing in respect to
the type or amount of restitution, triggers the need to resolve the dispute by a preponderance of
the evidence.” Grant, 455 Mich at 243, citing MCL 780.767(4). In the absence of a dispute, the
trial court is not required to make a separate factual finding on the record regarding restitution
and may simply rely on the recommendation in the presentence report. Grant, 455 Mich at 243.

        The trial court erred in ordering defendant to pay $100,000 restitution to the city of
Westland. In the absence of a dispute, a court is entitled to rely on the presentence investigation
report for restitution information—but the report provided that the restitution amount was zero.
See Id. at 243. Given the gaping disparity between the recommended restitution amount and the
judge’s award, the lack of evidence in the record that defendant injured anyone or caused
damage to city property, and the complete absence of testimony or explanation on the issue at
sentencing, we cannot ascertain how the court arrived at its restitution amount. It appears,
however, that the $100,000 figure was neither based on the evidence, see Cross, 281 Mich App
at 738, nor a loss occasioned as a direct result of defendant’s criminal acts, see White, 212 Mich
App at 316. The court’s $100,000 restitution order, in the absence of any explanation and factual
findings, failed to comply with the CVRA. The court’s error undoubtedly affected defendant’s
substantial rights because he was ordered to pay much more restitution than the CVRA required,
Carines, 460 Mich at 763, so this plain error was prejudicial. See id.; Newton, 257 Mich App at
68.




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       Affirmed in part, reversed in part, and remanded for resentencing and a determination of
the appropriate restitution amount, if any. We do not retain jurisdiction.



                                                          /s/ Henry William Saad
                                                          /s/ Kurtis T. Wilder
                                                          /s/ Christopher M. Murray




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