IN RE MILES DORIAN LEE MINOR
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STATE OF MICHIGAN
COURT OF APPEALS
In re MILES DORIAN LEE, a Minor.
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
April 16, 2002
Petitioner-Appellee,
v
No. 231074
Wayne Circuit Court
LC No. 00-388471
MILES DORIAN LEE,
Respondent-Appellant.
Before: Zahra, P.J., and Neff and Saad, JJ.
PER CURIAM.
The juvenile respondent was charged with felonious assault, MCL 750.82(1), carry a
dangerous weapon with unlawful intent, MCL 750.226, and carrying a concealed weapon
(CCW), MCL 750.227. Respondent was convicted following an adjudicative hearing of
felonious assault and CCW. He was placed with the Wayne County Department of Community
Justice. Respondent now appeals as of right. We affirm.
First, respondent argues that there was insufficient evidence presented at the adjudicative
hearing to convict him of CCW. Specifically, respondent claims that petitioner did not
demonstrate that the knife was a dangerous weapon. We disagree.
We review a challenge to the sufficiency of the evidence by considering the evidence in a
light most favorable to the prosecutor to determine whether a rational trier of fact could find that
the essential elements of the crime were proven beyond a reasonable doubt. People v Reid, 233
Mich App 457, 466; 592 NW2d 767 (1999). MCL 750.227, the statute pertaining to carrying
concealed weapons, provides in part:
(1) A person shall not carry a dagger, dirk, stiletto, a double-edged nonfolding
stabbing instrument of any length, or any other dangerous weapon, except a
hunting knife adapted and carried as such, concealed on or about his or her
person, or whether concealed or otherwise in any vehicle operated or occupied by
the person, except in his or her dwelling house, place of business or on other land
possessed by the person.
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(3) A person who violates this section is guilty of a felony, punishable by
imprisonment for not more than 5 years, or by a fine of not more than $2,500.00.
As explained by our Supreme Court in People v Lynn, 459 Mich 53; 586 NW2d 534 (1998):
[MCL 750.227(1)] in effect provides that several categories of knives and
stabbing instruments are dangerous weapons per se. If the jury finds that the
object is a “dagger,” “dirk,” “stiletto,” or a “double-edged nonfolding
instrument,” no further inquiry is required regarding whether the item is within
the class of weapons the carrying of which in a vehicle is prohibited. If an item
does not fall within one of those categories, the prosecution must proceed on the
theory that it falls within the ‘other dangerous weapon’ category. [Id. at 58
(citations omitted).]
In this case, petitioner did not argue that the knife used by respondent fell into one of the
categories of knives specifically recognized as dangerous per se. Therefore, the question
becomes whether petitioner demonstrated that the knife fell within the “other dangerous weapon”
category. Our Supreme Court, in People v Vaines, 310 Mich 500, 505-506; 17 NW2d 729
(1945), explained:
pocket knives, razors, hammers, hatchets, wrenches, cutting tools, and other
articles which are manufactured and generally used for peaceful and proper
purposes, would fall within the category of dangerous weapons if used for or
carried for the purpose of assault or defense. Whether or not such articles are
dangerous weapons, within the meaning of that term as used in section 227,
would depend upon the use which the carrier made of them.
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Therefore, in a prosecution under section 227 it becomes a question of fact for
court or jury determination as to whether or not such articles or instruments are
used or carried for the purpose of use as weapons of assault or defense.
See also People v Brown, 406 Mich 215; 277 NW2d 155 (1979), and People v Morris, 8 Mich
App 688; 155 NW2d 270 (1967).
We conclude that petitioner presented sufficient evidence that respondent carried the
knife for purposes of bodily assault. The victim testified that respondent confronted him on
bicycle as he was sitting on his front porch. Respondent accused the victim of talking about him.
The victim testified that respondent pulled out a knife with a long silver blade and told the victim
that he would “shove” the knife in the victim and “cut” the victim. Given this evidence, it is
plainly evident that respondent carried the knife and produced it in a threatening manner to
frighten the victim. The knife was not being used for an innocent purpose. Thus, petitioner
produced sufficient evidence that the knife was used as a dangerous weapon under the statute.
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Respondent nonetheless urges us to find that the victim’s testimony was replete with
contradictions and could not be relied upon to determine if sufficient evidence was presented to
sustain the CCW conviction. Respondent points out that the victim was inconsistent about what
portion of the knife he observed. We reject respondent’s argument. Credibility is a matter for
the trier of fact to decide. People v Daniels, 172 Mich App 374, 378; 431 NW2d 846 (1988).
Thus, “[we] will rarely overturn a conviction when the only issue is the credibility of a witness.”
People v Crump, 216 Mich App 210, 215; 549 NW2d 36 (1996).
Second, respondent argues that insufficient evidence was presented at the adjudicative
hearing to support his felonious assault conviction. Again, we disagree. The elements of
felonious assault are: an assault; with a dangerous weapon; and with the intent to injure or place
the victim in reasonable apprehension of an immediate battery. MCL 750.82(1); People v Avant,
235 Mich App 499, 505; 597 NW2d 864 (1999). Further, petitioner is also required to
demonstrate that respondent had the present ability or the apparent present ability to commit
battery. People v Jones, 443 Mich 88, 100; 504 NW2d 158 (1993); People v Grant, 211 Mich
App 200, 202; 535 NW2d 581 (1995).
Respondent claims there was insufficient proof that respondent assaulted the victim with
a dangerous weapon. The plain language of the statute indicates that a knife is considered a
dangerous weapon for purposes of this statute. MCL 750.82(1). See also People v Venticinque,
459 Mich 90, 99-100; 586 NW2d 732 (1998) (concluding the Legislature is presumed to have
intended the meaning it plainly expressed).
Respondent further claims that there was insufficient proof respondent had the present
ability or apparent present ability to commit a battery. Respondent asserts that there was
substantial distance between the victim and respondent and, therefore, did not have the ability to
commit a battery.
We do not find the fact that respondent was approximately ten feet away from the victim
to be supportive of the conclusion that respondent lacked the present ability or apparent present
ability to commit a battery. Respondent could have covered the ten-foot distance in just a few
steps. In light of that fact and in light of the evidence that respondent possessed a knife, removed
the knife from its concealed location, and threatened the victim that he was going to use it, we
conclude there was sufficient evidence that respondent had the present ability or apparent present
ability to commit a battery.
Finally, we do not agree with respondent that the fact he was thirteen years old and the
victim was seventeen years old compels us to conclude that he lacked the present ability or
apparent present ability to commit a battery. Indeed, the matter of age is irrelevant when
respondent had a knife and was threatening the victim with it. Furthermore, there is some
indication in the record that the victim was a “special needs” child.
Affirmed.
/s/ Brian K. Zahra
/s/ Janet T. Neff
/s/ Henry William Saad
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