PEOPLE OF MI V BENNY ROBERT PARKER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
May 20, 2010
9:10 a.m.
Plaintiff-Appellee,
v
No. 289357
Saginaw Circuit Court
LC No. 06-028432-FH
BENNY ROBERT PARKER,
Defendant-Appellant.
Before: SHAPIRO, P.J., and JANSEN and DONOFRIO, JJ.
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.
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 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.”
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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 ten 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.”
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 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.
II
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 three inches 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.
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 proven 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,
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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 open blade, 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 it, that
description does not answer the question. As such, on this record, we are left with simply no
basis for ascertaining whether the knife’s blade was longer than three inches.
In 1945, our Supreme Court held that it was error to apply the three-inch 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. People v
Vaines, 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.” Because they construed the concealed weapons statute, MCL 750.227, not
the carrying a dangerous weapon with unlawful intent statute, MCL 750.226, or an earlier
version thereof, Brown and Vaines are instructive, but not dispositive.
But in Acrey v Dep’t of Corrections, 152 Mich App 554, 558; 394 NW2d 415 (1986), this
Court, citing Brown, 406 Mich at 222-223, 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.” Acrey thus stated that, for both MCL 750.226 and MCL 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. But Brown in fact was
not construing MCL 750.226, and so Acrey’s statement that Brown’s dictates covered it was
overreaching.
Brown quoted MCL 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, 406 Mich at 219. Brown then quoted approvingly from Vaines in listing several
examples, beyond those set forth in MCL 750.227, of instruments “‘generally recognized’” to be
dangerous weapons per se: “‘Daggers, dirks, stilettos, metallic knuckles, slungshots [sic],
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pistols, and similar articles, designed for the purpose of bodily assault or defense . . . .” Id. at
220-221, quoting Vaines, 310 Mich at 505. By including items in that list beyond those set forth
in MCL 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.
In People v Smith, 393 Mich 432, 436; 225 NW2d 165 (1975), our Supreme Court
refined the list by applying the principle of ejusdem generic, “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. Id. at 436, citing MCL 750.227.
We are therefore of the opinion that because, as Smith noted, MCL 750.226 expressly
requires proof of intent to use a weapon unlawfully, Smith, 393 Mich at 437, but MCL 750.227
does not, their respective lists of weapons should be interpreted differently.
Because MCL 750.227 presents an incomplete list of instruments generally recognized as
dangerous weapons per se, along with the et cetera, “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. See Brown, 406 Mich at
222-223; Acrey, 152 Mich App at 558. 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, MCL 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 MCL
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 MCL 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 three inches in
length, 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.
MCL 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. MCL 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, MCL
750.226 does not by its own terms prohibit the carrying of any weapon for purposes of selfdefense.
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Plaintiff, citing Vaines, 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. People v Seiders, 262 Mich App 702, 705; 686 NW2d 821 (2004). Accordingly,
a construction rendering some part nugatory or surplusage should be avoided. Id. Further,
where a specific statutory provision conflicts with a related general one, the specific one
controls. People v Houston, 237 Mich App 707, 714; 604 NW2d 706 (1999). Hence, the
statute’s specification of three-inch 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 three-inch specification surplusage or nugatory. See Seiders, 262 Mich App at
705.
For these reasons, we hold that in prosecutions under MCL 750.226 involving a knife, an
element of the crime is that the knife’s blade be over three inches 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. People v Thompson, 424 Mich 118, 130; 379 NW2d 49
(1985).
III
Defendant also argued that the prosecutor committed misconduct and denied defendant a
fair trial by going outside the scope of the evidence by arguing matters not on record about the
knife. Defendant did not object to the prosecutor’s comments during trial, thus his argument on
appeal is not preserved. A defendant pressing an unpreserved claim of error must show a plain
error that affected substantial rights, and the reviewing court should reverse only when the
defendant is actually innocent or the error seriously affected the fairness, integrity, or public
reputation of judicial proceedings. People v Carines, 460 Mich 750, 763; 597 NW2d 130
(1999).
In closing argument, the prosecutor stated:
[W]ell, why did you have the knife? Well, now I got to come up with a
reason. Some people carry a knife and use it every day.
This knife’s never been used for anything. The blade is as pristine—
there’s not a wear of paint off the blade anywhere. That’s as sharp as the day it
was sold. Ninety days, 10 boxes a day, there would be tape—sticky tape all over
the outside of this knife. And we don’t clean the evidence when we get it. We
don’t buff it up. We present it to you the way it was taken that night. There’s not
a fleck on that knife. That knife is as sharp as the day it came out of the
manufacturer’s warehouse, and there’s not so much as a scratch or a wear of paint
from the 90 days times 10. I didn’t do my math. You guys can do that in the jury
room. How many boxes has this thing supposedly opened?
Defendant specifically makes issue of the prosecutor’s comments admonishing the jury
that the knife was too sharp, or otherwise unworn, to have been used in the benign ways
defendant had described. “Prosecutors may not make a statement of fact to the jury that is
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unsupported by the evidence, but they are free to argue the evidence and all reasonable
inferences arising from it as they relate to the theory of the case.” People v Schutte, 240 Mich
App 713, 721; 613 NW2d 370 (2000), criticized on other grounds in Crawford v Washington,
541 US 36; 124 S Ct 1354; 158 L Ed 2d 177 (2004).
When defendant took the stand in his own defense, the prosecutor elicited from him that
he had owned the knife for about three months, that he carried it for such purposes as cutting
boxes open, that that he typically cut open about ten boxes a day. The exchange continued as
follows:
Q. So three months, that’s 90 days, times 10; lot a [sic] boxes you’ve cut open
with that knife?
A. Yeah.
Q. I’m looking at this knife, and you show me one mark on this knife shows me
any wear.
A. Right here, whole knife.
Q. You’re saying that knife’s all worn?
A. No.
Q. Well, when you’re cutting—but when you’re cutting boxes, you’re going to
dull the knife over three months?
A. Tape.
Q. Huh?
A. Cutting tape on boxes. You know, I ain’t cutting boxes I’m cutting tape.
Q. Well, I mean 90 days of 10 boxes a day, this knife’s going to show some
wear, something; right?
A. Mm-hmm.
Q. Are you telling me this knife shows a fleck of wear on it anywhere?
A. Let me see.
Q. I’m not going to hand it to you. If I’m not going to hand it to the jury, I’m
sure not going to hand it to you. Do you see any wear on it?
A. No.
Q. None.
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This exchange thus did put into evidence the degree of wear the knife displayed. Further,
eliciting that the knife displayed no signs of wear could reasonably be taken as eliciting that the
knife appeared sharp. Although the best way to ascertain a knife’s sharpness is to try to cut with
it, sharpness may also be adjudged by feeling the blade, or, even if to a lesser extent, by visual
observation—the latter of which was available in court to defendant, and apparently also to the
jury. The prosecutorial argument of which defendant makes issue, then, was sufficiently
reflective of matters in evidence as not to constitute plain error. See Schutte, 240 Mich App at
721.
Moreover, to the extent that the prosecutor may have stepped into argument beyond what
the evidence properly allowed, the trial court’s instructions that the jury decide the case solely on
the basis of the evidence, and that the statements of counsel were not evidence, should have
cured any prejudice. “It is well established that jurors are presumed to follow their instructions.”
People v Graves, 458 Mich 476, 486; 581 NW2d 229 (1998). For these reasons, we reject this
claim of error.
IV
In conclusion, we hold that by failing to present evidence that the knife in question had a
blade of at least three inches in length, the prosecution did not present sufficient evidence to
support defendant’s conviction of carrying a dangerous weapon with unlawful intent, MCL
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 of the judgment of
sentence with respect to the vacated conviction. We do not retain jurisdiction.
/s/ Douglas B. Shapiro
/s/ Kathleen Jansen
/s/ Pat M. Donofrio
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