If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

UNPUBLISHED

February 14, 2019

v No. 339945

Kent Circuit Court

DAVID JOSEPH LENIO, LC No. 17-002894-FH

Defendant-Appellant.

Before: METER, P.J., and SAWYER and CAMERON, JJ.

PER CURIAM.

Defendant, David Joseph Lenio, appeals his jury conviction of malicious use of service 

provided by a telecommunications service provider, MCL 750.540e. We affirm.

In February 2017, defendant used Twitter to communicate with the victim, who posted 

messages, or “tweets,” that primarily involved political and human-rights issues. Both defendant 

and the victim had public Twitter profiles. Defendant’s correspondence with the victim began in 

February 2015 when defendant responded to the victim’s tweet regarding two fatal shootings at 

free speech events in Copenhagen, Denmark. The victim testified that defendant sent him 

several anti-Semitic tweets, in addition to tweets about European laws that criminalized the 

denial of the Holocaust. The victim testified that he saw other concerning tweets on defendant’s 

Twitter profile, including messages in which defendant stated that he wanted to “shoot up a 

grade school in Kalispell, Montana,” where defendant was living at the time.

Between February 2015 and February 2017, defendant moved to live with his parents in 

Grand Rapids, Michigan. The victim testified that defendant did not contact him in 2016. 

However, the victim testified that defendant sent him four direct, public tweets in February 2017. 

These four tweets read:

[February 7, 2017, 6:00 p.m.] My religion says it’s cool to shoot jewish

people in the head with guns... You still cool with #religiousLiberty? 

@JonHutson
-2-

[February 7, 2017, 6:05 p.m.] Hey @JonHutson when did you stop jerking 

off your son? ae911truth.org1

[February 19, 2017, 10:35 p.m.] Jesus also used physical violence to 

remove the money changers from the temple but thanks for lecturing us you 

fucking pedo kike @JonHutson

[February 19, 2017, 10:37 p.m.] If #Trump is such a tyrant, why they hell 

hasnt he put @Evan_McMullin into the #GasChambers yet? No one would even 

care if he did. @JonHutson

The victim testified that defendant’s first tweet on February 7, 2017, was in response to the 

victim’s tweets earlier that day on religious liberty. The victim testified that defendant’s tweets 

on February 19, 2017, were in response to the victim’s post suggesting that Jesus never engaged 

in discrimination.

The victim testified that he was alarmed by the threatening nature of the tweets. As such, 

he viewed defendant’s public tweets from January 2017 and February 2017 to understand the 

context of the tweets that were specifically addressed to him.2 The victim also testified that he 

 1 The victim testified that this hyperlink led to an article regarding conspiracy theories about the 

September 11, 2001 terrorist attacks.

2 Defendant’s other tweets from January 2017 to February 2017 that were admitted as evidence 

at trial are reproduced here as they appeared in the original tweets:

[January 3, 2017, 11:57 p.m.] After serving 5 months in jail without a 

conviction for words on twitter that should be #freeSpeech...I’m a fan of shooting 

sprees #ethics

[January 4, 2017, 12:03 a.m.] Each time that I’m #censored on 

#socialMedia, the more convinced I become that violence works best #1a 

#freeSpeech & #holocaust denial laws

[January 4, 2017, 12:47 a.m.] Lets just say I am more full of #hate and 

#rage than I have ever been; lol... Maybe that was what this system was trying to 

do? @Tayten5

[January 5, 2017, 1:02 a.m.] [In response to ADL New Jersey’s tweet of 

an article titled: “Court Ruling Allowing Islamic Society of Basking Ridge to 

Build Mosque a Significant Victory for Religious Freedom”] My religion tells me 

its okay to go on shooting sprees so long as one only targets sub human jewish 

filth who ban #holocaust denial @ADL_NJ

[January 5, 2017, 2:24 a.m.] funny thing is #censorship only makes 

violence more appealing...

[January 6, 2017, 1:59 p.m.] [In response to the tweet by JacharJacobs 

stating: “@AlecDawson @PsychicDogTalk4 @mitchellvii holocaust deniers 
-3-

reported defendant’s tweets to the Kalispell Police Department in Montana and to local police 

authorities where he lived. He further testified that, because defendant now lived in Michigan, 

the Montana Police Department referred the victim’s concerns to the Grand Rapids Police 

Department. Police officers executed a search warrant of defendant’s residence in Grand Rapids 

and found a 12-gauge shotgun and shotgun ammunition in defendant’s bedroom.

Defendant first argues that his Twitter messages do not amount to “true threats” and are 

constitutionally protected free speech. We disagree.

Defendant raised the issue whether his tweets constituted protected speech before the trial 

court in his motion to dismiss. The trial court denied defendant’s motion, determining that 

defendant’s statements on Twitter were “true threats” that were not protected by the First 

Amendment. Ordinarily, we review a trial court’s decision regarding a motion to dismiss for an

abuse of discretion. See People v Jones, 252 Mich App 1, 4; 650 NW2d 717 (2002). However, 

in this case, the trial court’s resolution of defendant’s motion to dismiss involved a constitutional 

question. As such, this Court reviews the constitutional issue de novo. See Burns v Detroit (On 

Remand), 253 Mich App 608, 616; 660 NW2d 85 (2002); People v Rogers, 249 Mich App 77, 

94; 641 NW2d 595 (2001).

The First Amendment of the United States Constitution provides that “Congress shall 

make no law . . . abridging the freedom of speech[.]” US Const, Am I. The 1963 Michigan 

Constitution provides: “[e]very person may freely speak, write, express and publish his views on 

all subjects, being responsible for the abuse of such right; and no law shall be enacted to restrain 

or abridge the liberty of speech or of the press.” Const 1963, art 1, § 5. The Michigan Supreme 

Court determined that the free speech protections of the Michigan Constitution and the United 

States Constitution are coterminous. Book Tower Garage, Inc v Local No 415, 295 Mich 580, 

587; 295 NW 320 (1940); see also Woodland v Mich Citizens Lobby, 423 Mich 188, 211; 378 

 

deserve to be shot on sight. My grandparents barely avoided Auschwitz”] lol 

that’s how i feel about jewish scum, gun grabbers anyone who supports 

#censorship... #1a coming @JacharJacob @AlecDowson @mitchellvii

[February 10, 2017, 10:44 p.m.] Revenge is best served right after your 

adversaries forgot that you might be willing to do it...

[February 12, 2017, 10:22 a.m.] I want a job operating #gasChambers 

@Polyphemus___ @richi3baby

[February 22, 2017, 8:36 p.m.] I can be anything I want if I grow up, and I 

just want to man ovens in a concentration camp... “Personal #meatloaf & 

#spaghetti” #foodPorn

[February 22, 2017, 9:05 p.m.] I blocked someone on twitter today... for 

snitching. [A picture with the words “Stop. Snitching.” accompanied this tweet.]
-4-

NW2d 337 (1985). This Court may consider federal authority when determining the extent of 

the free speech protections under the Michigan Constitution. Thomas M Cooley Law Sch v Doe 

1, 300 Mich App 245, 256; 833 NW2d 331 (2013).

The First Amendment protects actual speech and symbolic or expressive conduct. 

Virginia v Black, 538 US 343, 358; 123 S Ct 1536; 155 L Ed 2d 535 (2003). “The hallmark of 

the protection of free speech is to allow ‘free trade in ideas’—even ideas that the overwhelming 

majority of people might find distasteful or discomforting.” Id. The First Amendment “denies a 

State the power to prohibit dissemination of social, economic and political doctrine which a vast 

majority of its citizens believes to be false and fraught with evil consequence.” Id. (quotation 

marks and citations omitted).3 Even though the language used in the political arena is often 

“vituperative, abusive, and inexact,” it is protected by the First Amendment. Watts v United 

States, 394 US 705, 708; 89 S Ct 1399; 22 L Ed 2d 664 (1969). The First Amendment even 

protects “vehement, caustic, and sometimes unpleasantly sharp attacks on government and public 

officials,” in light of our “profound national commitment to the principle that debate on public 

issues should be uninhibited, robust, and wide-open[.]” New York Times Co v Sullivan, 376 US 

254, 270; 84 S Ct 710; 11 L Ed 2d 686 (1964). Additionally, the United States Supreme Court 

has held that the federal constitution protects speech communicated over the Internet to the same 

extent as speech communicated through other media. Reno v American Civil Liberties Union, 

521 US 844, 870; 117 S Ct 2329; 138 L Ed 2d 874 (1997); see also Thomas M Cooley Law Sch, 

300 Mich App at 256.

“The protections afforded by the First Amendment, however, are not absolute.” Black, 

538 US at 358. The United States Supreme Court has held that government can regulate the 

content of speech in “limited areas” that are “of such slight social value as a step to truth that any 

benefit that may be derived from them is clearly outweighed by the social interest in order and 

morality.” RAV v City of Saint Paul, 505 US 377, 383; 112 S Ct 2538; 120 L Ed 2d 305 (1992) 

(quotation marks and citation omitted). A state can also regulate speech that constitutes a “true 

threat.” Black, 538 US at 359 (quotation marks and citation omitted).

A threat is “[a] communicated intent to inflict harm or loss on another or on another’s 

property, esp[ecially] one that might diminish a person’s freedom to act voluntarily or with 

lawful consent.” Black’s Law Dictionary (9th ed). “True threats” are statements “where the 

speaker means to communicate a serious expression of an intent to commit an act of unlawful 

violence to a particular individual or group of individuals.” Black, 538 US at 359; see also 

Watts, 394 US at 708. A state may restrict and regulate “true threats” to protect people from the 

possibility of violence and to protect individuals from the fear of violence. RAV, 505 US at 388. 

 3 “[A] state statute which regulates speech and expression must be narrowly drawn so as not to 

infringe on constitutionally protected speech.” People v Taravella, 133 Mich App 515, 519; 350 

NW2d 780 (1984). Michigan’s malicious use of service provided by a telecommunications 

service provider statute, MCL 750.540e, is not unconstitutionally vague or overbroad. Id. at 

524-525. Additionally, MCL 750.540e sanctions the conduct of misuse of a communications 

service, rather than pure speech. Id. at 520 (emphasis added).
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A state may ban speech that is considered a “true threat” even if the speaker does not actually 

intend to carry out the threat. Black, 538 US at 360. Intimidation constitutes a “true threat” if 

the “speaker directs a threat to a person or group of persons with the intent of placing the victim 

in fear of bodily harm or death.” Id. Under the speaker-oriented standard for determining 

whether a threat is a true threat, a statement is a “true threat” if “a reasonable person would 

foresee that the statement would be interpreted by those to whom the maker communicates the 

statement as a serious expression of intent to harm or assault.” United States v Schiefen, 139 F3d 

638, 639 (CA 8, 1998) (quotation marks and citation omitted).

In this case, we conclude that defendant’s tweets constituted “true threats.” The tweets

communicated a serious expression of his intent to harm, or at least intimidate, Jewish people

generally, and the victim specifically, in addition to people who supported what defendant 

perceived to be censorship of his freedom of speech. Defendant expressed his desire to commit 

acts of violence when he stated that he wanted to operate gas chambers. Defendant repeatedly 

encouraged violence against these groups, demonstrating his deliberate and persistent targeting 

of these individuals. Defendant’s tweets, which referenced his persistent threats of violence and 

repeated expressions of hate and rage towards Jewish people demonstrated that defendant’s 

intent to inflict harm was credible and genuine. A reasonable person viewing defendant’s tweets 

would interpret the statements as a serious expression of defendant’s intent to inflict harm. And, 

as discussed more thoroughly below, defendant specifically targeted the victim in this case by 

tagging him. Therefore, we conclude that defendant’s tweets constituted “true threats” that were 

not constitutionally protected speech.

Defendant next argues that there was insufficient evidence of a threat necessary to 

support defendant’s conviction for malicious use of service provided by a telecommunications 

service provider. We disagree.

This Court reviews de novo a sufficiency of the evidence claim. People v Ericksen, 288 

Mich App 192, 195; 793 NW2d 120 (2010). “In determining whether sufficient evidence exists 

to sustain a conviction, this Court reviews the evidence in the light most favorable to the 

prosecution, and considers whether there was sufficient evidence to justify a rational trier of fact 

in finding guilt beyond a reasonable doubt.” People v Harris, 495 Mich 120, 126; 845 NW2d 

477 (2014). The appellate court is required to draw all reasonable inferences and credibility 

determinations in favor of the jury verdict. People v Nowack, 462 Mich 392, 400; 614 NW2d 78 

(2000). This is because “[j]uries, not appellate courts, see and hear witnesses and are in a much 

better position to decide the weight and credibility to be given to their testimony.” People v 

Wolfe, 440 Mich 508, 515; 489 NW2d 748 (1992), amended 441 Mich 1201 (quotation marks 

and citation omitted). “Circumstantial evidence and reasonable inferences arising from that 

evidence can constitute satisfactory proof of the elements of a crime.” People v Carines, 460 

Mich 750, 757; 597 NW2d 130 (1999) (quotation marks and citation omitted).

Malicious use of service provided by a telecommunications service provider is a 

misdemeanor crime in which a person intends to “terrorize, frighten, intimidate, threaten, harass, 

molest, or annoy another person, or to disturb the peace and quiet of another person.” MCL 

750.540e(1). A person maliciously uses the service provided by a telecommunications service 

provider, in relevant part, by: “[t]hreatening physical harm or damage to any person or property 

in the course of a conversation or message through the use of a telecommunications service or 
-6-

device.” MCL 750.540e(1)(a). The focus of the statute is on the defendant’s malicious intent, 

rather than the recipient’s subjective perceptions of the defendant’s conduct. People v Taravella, 

133 Mich App 515, 521; 350 NW2d 780 (1984).

MCL 750.540e does not define the terms “threat” or “threatening.” Undefined words in 

statutes are “construed and understood according to the common and approved usage of the 

language,” but technical words or terms of art are given their appropriate meaning in the law. 

MCL 8.3a. “Where a statute does not define one of its terms it is customary to look to the 

dictionary for a definition.” People v Lee, 447 Mich 552, 558; 526 NW2d 882 (1994). A threat 

is “[a] communicated intent to inflict harm or loss on another or on another’s property, 

esp[ecially] one that might diminish a person’s freedom to act voluntarily or with lawful 

consent.” Black’s Law Dictionary (9th ed). The verb “to threaten” is defined as “(1) to utter 

threats against; (2)(a) to give signs or warning of; (2)(b) to hang over dangerously; (3) to 

announce as intended or possible; or (4) to cause to feel insecure or anxious.” MerriamWebster’s Collegiate Dictionary (11th ed). Therefore, a person threatens physical harm to 

another person or damage to property when he or she states that harm is intended or possible, or 

when the person causes another to feel insecure about his or her safety or personal situation 

relative to the threatening person.

The malicious use of service provided by a telecommunications service provider statute 

does not require that the threat is credible. The statute only requires that a defendant “intends to 

terrorize . . . or annoy another person” by threatening physical harm of a person, not necessarily

a specified person, the recipient of the threat, or a class of people. There is also no requirement 

that a defendant’s threat causes a person to feel threatened or fearful. Compare MCL 

750.540e(1) (malicious use of service provided by telecommunications service provider) to MCL 

750.411i (aggravated stalking).

In this case, the evidence and testimony presented at trial demonstrated that defendant 

maliciously used Twitter, a telecommunications provider, to terrorize, frighten, intimidate, 

threaten, harass, molest, or annoy the victim. Defendant’s intent can be reasonably inferred from 

the content of the messages. Defendant’s tweets to the victim implied that the victim was both a 

pedophile and Jewish, referring to the victim as a “pedo kike.” Defendant’s tweets also 

threatened physical violence, specifically stating he would like to “shoot [J]ewish people in the 

head with guns” and utilize gas chambers. A jury could reasonably infer that defendant’s 

references to violence against Jewish people would target the victim by association on the basis 

of defendant’s reference to the victim as a “pedo kike.” As such, a jury could infer that 

defendant meant to threaten and intimidate, or at least frighten and annoy, the victim. 

Additionally, these tweets occurred during three separate evenings within a 12-day period. A 

rational jury could find that defendant intended to disturb the victim’s peace and quiet by 

sending the victim four tweets in which defendant used offensive, ethnoreligious slurs and 

threatened violence. See MCL 750.540e(1); see also Taravella, 133 Mich App at 521.

Further, the evidence and testimony presented at trial demonstrated that defendant 

maliciously used Twitter by threatening physical harm to a person. Defendant’s tweets, read in 

context, provided sufficient evidence of his intent to harm Jewish people and people who, in 

defendant’s opinion, supported the censorship of free speech. In his public tweets that did not 

address the victim directly, defendant referred to shooting on sight “[J]ewish scum, gun grabbers, 
-7-

and anyone who supports []censorship” and beheading Jewish people. Defendant stated that he 

wanted to work in a concentration camp and operate gas chambers. Additionally, defendant 

expressed that he was “full of []hate and []rage” and that censorship made violence more 

appealing. A rational jury could find that defendant’s repeated references to acts of violence, his 

possession of a gun and ammunition, and public expression of his increasing hate and rage 

demonstrated the requisite intent to harm an individual belonging to any of the groups that 

defendant named. See People v Osantowski, 274 Mich App 593, 605, 612-613; 736 NW2d 289 

(2007) (concluding that the defendant’s statements of intent to inflict harm on people other than 

the recipient of the statements constituted threats, even though the class of victims was 

ambiguous), rev’d in part on other grounds 274 Mich App 593 (2008). Viewing the evidence in 

the light most favorable to the prosecution and drawing all reasonable inferences in favor of the 

jury verdict, we conclude that there was sufficient evidence to justify the jury’s finding that 

defendant was guilty of malicious use of service provided by a telecommunications service 

provider.

Affirmed.

/s/ Patrick M. Meter 

/s/ David H. Sawyer 

/s/ Thomas C. Cameron