PEOPLE OF MI V KEVIN L TETREAU
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
August 1, 1997
Plaintiff-Appellee,
v
No. 189024
Huron Circuit Court
LC No. 94-003708 FH
KEVIN L. TETREAU,
Defendant-Appellant.
Before: Wahls, P.J., and Gage and Nykamp,* JJ.
PER CURIAM.
Defendant was convicted by a jury of carrying a concealed weapon (CCW), MCL 750.227;
MSA 28.424, and operating a vehicle while under the influence of intoxicating liquor (OUIL), MCL
257.625(1); MSA 9.2325(1). Following the jury verdict, defendant was convicted after a bench trial of
habitual offender, fourth offense, MCL 769.12; MSA 28.1084, and OUIL, second offense, MCL
257.625(7); MSA 9.2325(7). Defendant was sentenced to three years’ probation with the first year to
be served in the county jail for the CCW conviction and to 270 days in jail for the OUIL conviction.
Defendant appeals as of right. We reverse defendant’s CCW conviction and affirm his OUIL
conviction.
Defendant was stopped for traffic violations and was found to be intoxicated. After failing the
field sobriety tests, the police officer placed defendant under arrest and conducted a pat down search of
his person. Defendant told the officer that he had a knife in his pocket. The officer found a butterfly
knife (a double edged knife which has a handle that folds down over it) in a zipped pocket of his jacket.
Defendant said that it was a gift from his wife and he always carried it. Defendant denied that he carried
the knife for assaultive or defensive purposes. In denying the motion for directed verdict, the trial court
suggested that defendant’s failure to offer an explanation of why he carried the knife gave rise to
circumstantial evidence from which a reasonable juror could conclude that the knife was carried for use
as a dangerous weapon.
_________________________
* Circuit judge, sitting on the Court of Appeals by assignment.
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Defendant argues that there was insufficient evidence to support his conviction for CCW. We
agree. In reviewing a claim of insufficient evidence, we view the evidence presented in a light most
favorable to the prosecution to determine whether a rational trier of fact could have found that the
essential elements of the crime were proven beyond a reasonable doubt. People v Jaffray, 445 Mich
287, 296; 519 NW2d 108 (1994). The burden is on the prosecution to prove that a pointed instrument
carried by the defendant is either dangerous per se or that it was used, or intended for use, as a weapon
for bodily assault or defense. People v Brown, 406 Mich 215, 222-223; 277 NW2d 155 (1979).
“The fact that a pointed instrument . . . has great potential as a dangerous weapon does not render it a
dangerous weapon per se.” Id. Whether knives are dangerous weapons “would depend upon the use
which the carrier made of them.” People v Vaines, 310 Mich 500, 505; 17 NW2d 729 (1945). It is
a question of fact whether an instrument is a dangerous weapon per se or one used or intended for use
as a weapon for assault or defense. People v Johnson, 175 Mich App 56, 59; 437 NW2d 302
(1989). However, before a question of fact is presented there must be some “evidence showing, or
from which it could reasonably be inferred, that [the defendant] had used it, or was carrying it for use,
as a weapon of assault or defense.” Vaines, supra at 506.
In the present case, the prosecutor presented no evidence that the knife was dangerous per se.
In addition, no evidence was presented to rebut defendant’s uncontroverted statement that he had
carried the knife—a gift from his wife—for seven to ten years. Plaintiff’s argument that defendant’s
statement was incredible is not persuasive. There was no credibility contest in this case because there
was no testimony or evidence that contradicted defendant. Defendant is not required to prove that he
had an innocent reason for having the knife with him. Defendant showed no hostility to the officer when
he was arrested, he had the knife in a zipped pocket, he told the officer about it, and he was arrested
for drunk driving. There were no circumstances in this case that would give rise to the inference that the
knife was carried for assaultive or defensive purposes. Defendant’s conviction for CCW is reversed
and the sentence imposed thereon is vacated.
Defendant also urges reversal of both the CCW and OUIL convictions on the basis that the trial
court abused its discretion in denying his motion for continuance to call additional witnesses. Defendant
has failed to persuade this Court that he suffered any unfair prejudice as a result of the trial court’s
denial of his motion. People v Lawton, 196 Mich App 341, 348; 492 NW2d 810 (1992). The trial
court found that, with the exception of Chief Bissonette of the Utica Police Department, the testimony of
the proposed witnesses would be merely cumulative of testimony already in the record. These
witnesses apparently would have challenged police testimony about when and where they stopped
defendant. However, in view of the fact that defendant does not deny that he was driving the night the
officers stopped him or that he had a blood alcohol level of .13 when tested, there was no prejudice to
him in the denial of this motion. The trial court further stated that Bissonette’s testimony was not
relevant. Bissonette would have testified that he told defendant five to seven years earlier that some
knife defendant showed to him was not illegal to possess under a local ordinance. However, the officer
could not recall what type of knife he was shown and would not have been able to testify that he was
shown the knife in question. Defendant was not, therefore, unfairly prejudiced by not being allowed an
adjournment to produce this testimony.
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In light of our reversal of defendant’s CCW conviction, we find it unnecessary to address the
remaining issues raised by defendant.
Affirmed in part and reversed in part. We do not retain jurisdiction.
/s/ Myron H. Wahls
/s/ Hilda R. Gage
/s/ Wesley J. Nykamp
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