People v. Parker, 2010 WL 2009354, Mich.App., May 20, 2010 (edited to fit; posted for educational purposes only; this is not legal advice).
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 his conviction of carrying a dangerous weapon with unlawful intent. Because defendant has not established any plain error with regard to his prosecutorial misconduct argument, we affirm defendant's felonious assault conviction.
Defendant's convictions arise from an incident that took place on 12/3/06. 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 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 3 months and carried it daily for such purposes as cutting boxes. Defendant added that he typically cut open about ten boxes per 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.”
The 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 whether the evidence showed that the defendant 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.
On appeal, defendant argues that the trial court erred in denying defendant's 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 3" in length in order to qualify as a dangerous weapon. The prosecutor responds that the trial court correctly focused on the potential dangerousness of the knife, rather than the length of its blade, and, 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.
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. As such, on this record, we are left with simply no basis for ascertaining whether the knife's blade was longer than 3".
In 1945, our Supreme Court held that it was error to apply the 3" specification in the version of the carrying a dangerous weapon statute then in effect to determine the dangerousness of a knife for purposes of the concealed weapons statute then in effect. The Court, further construing the concealed weapons statute, noted that many cutting tools are manufactured and used for peaceful purposes, and opined that, “whether or not such articles are dangerous weapons ... would depend upon the use which the carrier made of them.” 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.” The Court concluded that, “the 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.”
The Court reiterated that “where a defendant is charged with carrying a ‘dangerous weapon’ contrary to 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 .”
But this Court has stated, “To support the weapon element of either of these charges requires finding that an article or instrument not included in the statute's list of per se weapons must have been used or carried for use as a weapon or for purposes of assault or defense.” Thus, for both 750.226 and 750.227, the statutorily specified weapons were dangerous per se, and that any other potentially dangerous item carried for assaultive or defensive use likewise satisfied those respective statutes.
Brown quoted 750.227 to present its list of prohibited weapons: “ ‘dagger, dirk, stiletto or other dangerous weapon except hunting knives adapted and carried as such....’ “. Brown then quoted approvingly from Vaines in listing several examples, beyond those set forth in 750.227, of instruments “ ‘generally recognized’ “ to be dangerous weapons per se: “ ‘Daggers, dirks, stilettos, metallic knuckles, slungshots [sic], pistols, and similar articles, designed for the purpose of bodily assault or defense....” By including items in that list beyond those set forth in 750.227, Vaines, and thus Brown, treated the statutory list as merely instructive, by noting that some instruments not on it were also dangerous weapons per se.
Our Supreme Court has refined the list “whereby in a statute in which general words follow a designation of particular subjects, the meaning of the general words will ordinarily be presumed to be and construed as restricted by the particular designation and as including only things of the same kind, class, character or nature as those specifically enumerated.” Accordingly, the phrase “or other dangerous weapon except hunting knives adapted and carried as such,” after a list of stabbing weapons, is limited to only additional stabbing weapons.
We are therefore of the opinion that because 750.226 expressly requires proof of intent to use a weapon unlawfully, but 750.227 does not, their respective lists of weapons should be interpreted differently.
Because 750.227 presents an incomplete list of instruments generally recognized as dangerous weapons per se, along with “any other dangerous weapon,” some inquiry into intent is needed to determine whether an instrument that is not a dangerous weapon per se nonetheless constitutes a dangerous weapon for purposes of that statute. Concealed carrying of dangerous weapons per se, then, is prohibited without regard to intent, while concealed carrying of lesser potential weapons is prohibited only when carried with assaultive or defensive intent.
In contrast, 750.226 begins with an unlawful intent element, followed by a list of what are dangerous weapons per se, thus, no separate consideration of intent should inform the general provision “any other dangerous or deadly weapon or instrument.” Because 750.227 sets forth dangerous weapons, in specific then general terms, but no intent element, a person's intent in possessing a potential weapon that is not a dangerous one per se is a factor in determining whether that object qualifies for purposes of that statute. But because 750.226 expressly targets the combination of unlawful intent with its list of what are dangerous weapons per se, the carrier's intent is not a factor in determining whether an instrument carried is covered by that statute. For purposes of the latter, then, the principle of ejusdem generic suggests that the phrase, “any other dangerous or deadly weapon or instrument,” following as it does a list of varied weapons which have in common that they are all dangerous per se, includes only other dangerous weapons per se. The specification of knives with blades of over 3", then, indicates that they are included as dangerous weapons per se, but that knives with shorter blades are not included because they are not dangerous weapons per se.
750.227 makes an exception for “hunting knives adapted and carried as such” in apparent recognition that they are dangerous per se but nonetheless manufactured and normally used for purposes other than aggression against humans. 750.226 needs to set forth no such exception, because it specifically prohibits the carrying of dangerous weapons, no doubt including hunting knives, with unlawful intent. Further, in specifying unlawful intent, 750.226 does not by its own terms prohibit the carrying of any weapon for purposes of self-defense.
Plaintiff argues that the length of a knife's blade is not dispositive of the question of its dangerousness. Plaintiff in fact seems to suggest that the length of the blade is of no consequence. But when construing a statute, a court should presume that every word has some meaning. Accordingly, a construction rendering some part nugatory or surplusage should be avoided. Further, where a specific statutory provision conflicts with a related general one, the specific one controls. Hence, the statute's specification of 3" knife blades must be given force. But that force is wholly lacking if the statute criminalizes the carrying of any knife when carried for unlawful reasons. To put it another way, reading the statute as targeting any knife carried for an unlawful purpose would render the 3" specification surplusage or nugatory.
For these reasons, we hold that in prosecutions under 750.226 involving a knife, an element of the crime is that the knife's blade be over 3" in length. The lack of such proof in this instance invalidates the conviction. Acquittal, not retrial is the proper remedy, as dictated by double jeopardy principles.
In conclusion, we hold that by failing to present evidence that the knife in question had a blade of at least 3" in length, the prosecution did not present sufficient evidence to support defendant's conviction of carrying a dangerous weapon with unlawful intent, 750.226. With regard to his prosecutorial misconduct argument, defendant fails to establish any plain error.
Vacated in part, affirmed in part, and remanded for correction.
