In this Michigan criminal appeal we challenged the client’s convictions for assault with a dangerous weapon. The Michigan Court of Appeals reversed the defendant’s three felonious assault convictions, affirmed the remaining, and remanded the case to the trial court for resentencing without consideration of the three reversed convictions.
The strongest argument in this case had to do with the client’s 3 convictions for assault with a dangerous weapon. We argued that the prosecutor had presented insufficient evidence for a reasonable jury to find that he possessed a dangerous weapon. The gun used in this case was not real.
The argument on appeal
The client should not have been convicted of using a “dangerous weapon” because the object in this case was not a real gun. Since it was not real, it could not be considered dangerous in the way it was used. The felonious assault statute requires that the weapon used in a crime be a “dangerous weapon,” and not simply one with the appearance of a dangerous weapon. The Court of Appeals agreed with our argument.
The law recognizes that any object can be used as a weapon so as long as the object may be considered dangerous when used. Common objects, for example, such as a bottle or pencil can be a “dangerous weapon” if used in a way that can cause harm. A person can hit another with a glass bottle or use a pencil as a stabbing instrument. See the following case for authority on this premise. People v Goolsby
However, the fact that a person may be apprehensive about the object, without more, cannot transform the object into a dangerous weapon. In this appeal, the gun was not real although it looked like a real firearm. However, at no point could it ever not fire any projectiles.
The Court of Appeals took note that felonious assault is a simple assault aggravated by the use of a weapon. In Michigan, the elements of felonious consist of:
- (1) an assault,
- (2) with a dangerous weapon, and
- (3) with the intent to injure or place the victim in reasonable apprehension of an immediate battery.
A dangerous weapon is defined by MCL 750.82. Michigan Felonious Assault Statute (Assault with a Dangerous Weapon). In part, the statute describes a dangerous weapon, for the purposes of of felonious assault, as “a gun, revolver, pistol, knife, iron bar, club, brass knuckles, or other dangerous weapon . . . . ”
The case law states that a prosecutor does not need to present proof of the operability of a gun used in an assault in order to support a conviction for felonious assault. It is important to note that an unloaded yet operable gun is considered a dangerous weapon under MCL 750.82.
In this Michigan criminal appeal, the trial court, prosecutor, and defense all agreed that the gun could not fire a projectile because it was not real. The barrel of the replica gun was sealed shut. Despite this fact, the parties allowed the client to be convicted of assault with a dangerous weapon. The Court of Appeals vacated (eliminated the 3 convictions) because the prosecutor did not prove to the jury that the client used a “dangerous weapon” as defined by case law and statute.
As you can see from this article, the decision to hire an experienced criminal defense attorney is a very critical choice for someone facing criminal charges. In this case, had we represented the client at trial, we would have caught that error. However, as experienced criminal appellate attorneys we brought the issue to the Court of Appeals who corrected the errors.
The job of an appellate attorney is to find the error that occurred in the lower courts. A Michigan criminal appeal lawyer must read the transcripts, find issues with the strongest arguments, and persuasively present them in brief and oral argument. As this case indicates, the judge, defense attorney, and prosecutor did not recognize the error that the client could not be convicted three times for assault with a dangerous weapon because the gun was not real.
Experience matters when you are looking for a criminal appeal or trial attorney. If you are looking for a Michigan criminal appeal lawyer to review your case for errors, we are more than willing to help. We will answer any questions that you may have about what happened at a plea or trial. If you are calling on someone’s behalf because he or she is incarcerated we can assist you as well.
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