An assault with a dangerous weapon (also known as “felonious assault”) is a serious criminal offense in Michigan because of the potential to cause substantial injury to someone else. Bare fists are no match for a knife, a club or a gun. Those who harm or threaten to harm others with dangerous weapons can expect harsh penalties under Michigan law.
An individual is guilty of the crime of felonious assault, contrary to MCL 750.82(1), if the prosecutor can prove all of the following elements beyond a reasonable doubt (Model Criminal Jury Instruction 17.9):
- First, that the defendant either attempted to commit a battery on another person or did an act that would cause a reasonable person to fear or apprehend an immediate battery. A battery is a forceful or violent touching of the person or something closely connected with the person. (An assault doesn’t have to be a physical touching and can be accomplished if the victim reasonably believed that there would be an imminent battery under the circumstances).
- Second, that the defendant intended either to injure another person or to make another person reasonably fear an immediate battery.
- Third, that at the time, the defendant had the ability to commit a battery, appeared to have the ability, or thought he or she had the ability.
- Fourth, that the defendant committed the assault with a dangerous weapon.
A conviction of felonious assault carries the following penalties:
- If the felonious assault did not occur in a weapon free school zone, the individual is guilty of a felony punishable by up to 4 years in state prison or a fine up to $2,000.00, or both.
- If the felonious assault occurred in a weapon free school zone, the individual is guilty of a felony punishable by one or more of the following:
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- Up to 4 years in state prison;
- Community service up to 150 hours; and/or
- A fine up to $6,000.00.
According to MCL 750.82(1), a felonious assault can be carried out “with a gun, revolver, pistol, knife, iron bar, club, brass knuckles, or other dangerous weapon without intending to commit murder or to inflict great bodily harm less than murder.” “Other dangerous weapon” is not limited to those items designed to be weapons, but may include any instrument that, under the circumstances in which it is used is readily capable of causing serious injury. The following are appellate cases in Michigan where higher courts have upheld convictions for felonious assault:
- People v Goolsby, 284 Mich 375; 279 NW 867 (1938) – The Michigan Supreme Court upheld a conviction of felonious assault where the defendant drove his car and knocked down a police officer. The Court, in finding that the automobile was a dangerous weapon, concluded “[t]he character of a dangerous weapon attaches by adoption when the instrumentality is applied to use against another in furtherance of an assault.”
- People v Stevens, 409 Mich 564; 297 NW2d 120 (1980) – The Michigan Supreme Court held that there was no basis to conclude that a starter pistol did not per se constitute a dangerous weapon under MCL 750.82(1) when it was incapable of firing dangerous projectiles. However, in People v Grace, unpublished per curiam opinion of the Court of Appeals, issued November 17, 2015 (Docket No. 322653), a starter pistol was found to have been used as a dangerous weapon, thus supporting a conviction for felonious assault, where the defendant pointed the starter pistol at the victim, pulled the hammer back and threatened to fire unless the victim turned over the cell phone, even though the starter pistol could not actually fire. Under the circumstances, it was used as a weapon.
- People v Hale, 96 Mich App 343; 292 NW2d 204 (1980) – The Michigan Court of Appeals upheld a conviction for felonious assault where the defendant repeatedly kicked the Clare County deputy in the groin area with his shoe. The Court concludes that “a shoe as well as a boot may be considered a dangerous weapon under the statute since it is an object that may be used in a dangerous manner.”
- People v Prather, 121 Mich App 324; 328 NW2d 556 (1982) – The Michigan Court of Appeals upheld a conviction for felonious assault where the defendant was using an unloaded gun, finding that he “pointed and waved his gun” towards the victims in a threatening matter indicating he would fire. Even though the defendant testified that he did not know if the gun would fire because he never fired it before, the gun nevertheless is enumerated in the statute specifically as a “dangerous weapon”, so his use of this weapon as a threat completed the felonious assault.
- People v Kay, 121 Mich App 438; 328 NW2d 424 (1983) – The Michigan Court of Appeals upheld a conviction of felonious assault where the defendant opened his van door to release his dog that attacked two store employees trying to stop a theft. The Court, in determining the dog fits the definition of a dangerous weapon, stated that it doesn’t matter that the weapon was a living creature.
The accused can claim as an affirmative defense that he was using the weapon for self-defense or defense of others. In fact, the burden is on the prosecutor to show that the defendant was NOT using the weapon in self-defense or defense of others. Whether or not this can be established depends on the facts of the case, witness testimony and their perceived credibility to the jury. Make no mistake that felonious assault is treated very seriously by judges and may result in a period of incarceration in jail or prison.
If you or a loved one is accused of felonious assault or any other crime, do not hesitate to contact the experienced criminal defense attorneys at Kershaw, Vititoe & Jedinak PLC to start protecting your rights today.
