People v. Parker

795 N.W.2d 596, 288 Mich. App. 500
CourtMichigan Court of Appeals
DecidedMay 20, 2010
DocketDocket No. 289357
StatusPublished
Cited by45 cases

This text of 795 N.W.2d 596 (People v. Parker) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Parker, 795 N.W.2d 596, 288 Mich. App. 500 (Mich. Ct. App. 2010).

Opinion

PER CURIAM.

Defendant appeals as of right his jury trial convictions of felonious assault, MCL 750.82, and carrying a dangerous weapon with unlawful intent, MCL 750.226. Because the prosecution failed to present sufficient evidence to support defendant’s conviction of carrying a dangerous weapon with unlawful intent for the reason that it did not present evidence that the knife in question had a blade of at least three inches in length, we vacate that conviction. Because defendant has not established any plain error with regard to his [502]*502argument concerning prosecutorial misconduct, we affirm defendant’s felonious-assault conviction.

i

Defendant’s convictions arise from an incident that took place at the Gibby’s Pub in Bridgeport on the evening of December 3, 2006. At trial, the owner of the bar testified that a bartender reported having problems with defendant, in response to which the owner asked defendant to leave the premises. Instead of leaving, defendant cursed and produced a knife in its open position, meaning blade out. The owner yelled that defendant had a knife, struggled with him, and commanded defendant to drop the knife. After others joined the owner in the fracas, defendant was finally disarmed and subdued.

At the close of the prosecution’s proofs, defense counsel asked that the charge of carrying a dangerous weapon with unlawful intent be dismissed, on the ground that the prosecution had failed to prove that the knife in question had a blade of at least three inches in length. The prosecutor argued that any dangerous weapon satisfied the requirements of the statute. The trial court adopted the prosecutor’s position, explaining, “I believe that the evidence is sufficient to show that it is a dangerous weapon at this point in time, and the jury can determine whether or not what his intention was in terms of carrying it.”

Defendant testified that he had owned the knife for three months and carried it daily for such purposes as cutting open boxes. Defendant added that he typically cut open about 10 boxes each day. Describing the incident underlying this case, defendant said of the knife, “I felt stupid having it out because I wasn’t going to use it, so, you know, I felt ridiculous. They called my bluff.”

[503]*503The trial court instructed the jury that, among the elements necessary to find defendant guilty of carrying a dangerous weapon with unlawful intent, the prosecution had to prove that defendant was “armed with a knife” and “intended to use this weapon illegally against someone else.” The trial court further stated:

A dangerous weapon is any object that is used in a way that is likely to cause serious physical injury or death. Some objects, such as guns or bombs, are dangerous because they are specifically designed to be dangerous. Other objects are designed for peaceful purposes but may be used as dangerous weapons.
The way an object is used or intended to be used in an assault determines whether or not it is a dangerous weapon. If an object is used in any way that is likely to cause serious physical injury or death, it is a dangerous weapon. You must decide from all of the facts and circumstances whether the evidence showed that the defendant in question here had a dangerous weapon.

The trial court additionally instructed the jury to decide the facts solely on the basis of the evidence and that the statements of counsel were not evidence. The jury found defendant guilty as charged.

n

On appeal, defendant argues that the trial court erred by denying his motion to dismiss the charge of carrying a dangerous weapon with unlawful intent because the prosecution presented absolutely no evidence with regard to the length of the knife, contrary to the statutory language, which requires that a knife have a blade of at least three inches in length in order to qualify as a dangerous weapon. The prosecution responds that the trial court correctly focused on the potential dangerousness of the knife, rather than the [504]*504length of its blade, and that, in any event, the knife was admitted into evidence, the jury saw it, and one witness testified that it was roughly the size of a hand.

When reviewing a trial court’s decision on a motion for a directed verdict, this Court reviews the record de novo to determine whether the evidence, viewed in the light most favorable to the prosecution, could persuade a rational trier of fact that the essential elements of the crime charged were proved beyond a reasonable doubt. People v Mayhew, 236 Mich App 112, 124-125; 600 NW2d 370 (1999). Statutory interpretation presents a question of law, calling for review de novo. People v Denio, 454 Mich 691, 698-699; 564 NW2d 13 (1997).

Defendant was convicted of violating MCL 750.226, which provides, in pertinent part:

Any person who, with intent to use the same unlawfully against the person of another, goes armed with a pistol or other firearm or dagger, dirk, razor, stiletto, or knife having a blade over 3 inches in length, or any other dangerous or deadly weapon or instrument, shall be guilty of a felony ....

In this case, the knife in question was admitted into evidence and apparently displayed to the jury, but was not given to the jurors to inspect. There was no testimony, discussion, or argument presented to the jury concerning the length of its blade. One witness described the weapon as “a hand-sized knife” with the blade open, but given that the size of that witness’s hand was not in evidence and that she did not indicate precisely how the knife might align with her hand, that description does not answer the question. As a result, on this record, we are left with simply no basis for ascertaining whether the knife’s blade was longer than three inches.

[505]*505In 1945, our Supreme Court held that it was error to apply the three-inch specification found in the version of the statute prohibiting carrying a dangerous weapon then in effect to determine the dangerousness of a knife for purposes of the concealed-weapons statute then in effect. People v Values, 310 Mich 500, 502-504; 17 NW2d 729 (1945). The Court, further construing the concealed-weapons statute, noted that many cutting tools are manufactured and used for peaceful purposes and opined that “[w]hether or not such articles are dangerous weapons . . . would depend upon the use which the carrier made of them.” Id. at 505. The Court thus called for distinguishing between items “designed for the purpose of bodily assault or defense,” which are thus “dangerous weapons per se,” and items that “become dangerous weapons only when they are used or carried for use as weapons.” Id. The Court concluded that “[t]he legislature certainly did not intend to include as a dangerous weapon the ordinary type of jackknife commonly carried by many people, unless there was evidence establishing that it was used, or was carried for the purpose of use, as a weapon.” Id. at 506.

In People v Brown, 406 Mich 215, 222; 277 NW2d 155 (1979), the Supreme Court reiterated that

where a defendant is charged with carrying a “dangerous weapon” contrary to MCL 750.227 ..., the burden is on the prosecution to prove that the instrument... is a dangerous weapon per se or that the instrument was used, or intended for use, as a weapon for bodily assault or defense.

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Cite This Page — Counsel Stack

Bluebook (online)
795 N.W.2d 596, 288 Mich. App. 500, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-parker-michctapp-2010.