Michigan Court of Appeals Holds Bare Hands Are Not Weapons

On November 13th, 2014, the Michigan Court of Appeals held in a criminal case that bare hands are not weapons and that as a result it was error for the trial court to score any points under Offense Variable (OV) 1 and 2 (aggravated use of a weapon and lethal potential of a weapon possessed or used, respectively) at defendant's sentencing.

In People v Hutcheson, Docket No. 313177, the Michigan Court of Appeals addressed the propriety of the trial court's decision to score OV 1 and 2 when the record did not show that it was more likely than not that defendant used or possessed a weapon when he sexually assaulted a young girl.

The Court first recited the facts of the case.

Defendant was the live-in boyfriend of the victim in this case. The victim was sleeping in their home when defendant woke her by putting his hands down her pants. When the victim told defendant to stop, he became angry, punched her, and tried to choke her. After being unable to undress the victim, defendant ordered her to take her pants off. The victim began to comply with defendant’s demand out of fear, but as she began taking her pants off, defendant saw her bruised face and told her she needed to go to the hospital. Defendant and the victim left the home as though heading to the hospital, but instead the victim quickly ran to a neighbor’s house and called 911. Defendant fled the scene.

Defendant was charged with assault with intent to commit sexual penetration, but by agreement with the prosecutor, he pleaded guilty to the reduced charge of attempted assault with intent to commit sexual penetration. At his sentencing hearing on the reduced charge, defendant objected to the scoring of offense variable (“OV”) 1 at 10 points and OV 2 at 1 point, arguing that he never used a weapon when he attacked the victim. The trial court overruled the objection, finding that defendant’s hands could be considered dangerous weapons under the circumstances of this case. The trial court initially sentenced defendant to 36 months’ probation, but defendant subsequently violated his probation by using cocaine. Following his guilty plea on the probation violation, the trial court sentenced defendant to 29 to 60 months’ imprisonment.

The Court then addressed defendant's position that the trial court committed error by scoring points at his sentencing for a weapon he never possessed.

MCL 777.31(1), providing that “[o]ffense variable 1 is aggravated use of a weapon,” also provides, in relevant part:

Score offense variable 1 by determining which of the following apply and by assigning the number of points attributable to the one that has the highest number of points:

(a) A firearm was discharged at or toward a human being or a victim was cut or stabbed with a knife or other cutting or stabbing weapon .. . . . . . . . . . 25 points

(b) The victim was subjected or exposed to a harmful biological substance, harmful biological device, harmful chemical substance, harmful chemical device, harmful radioactive material, harmful radioactive device, incendiary device, or explosive device . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 points

(c) A firearm was pointed at or toward a victim or the victim had a reasonable apprehension of an immediate battery when threatened with a knife or other cutting or stabbing weapon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 points

(d) The victim was touched by any other type of weapon . . . . . . . . . . . 10 points 

(e) A weapon was displayed or implied . . . . . . . . . . . . . . . . . . . . . . . . . 5 points 

(f) No aggravated use of a weapon occurred . . . . . . . . . . . . . . . . . . . . . 0 points

We conclude that defendant credibly argues that, under the facts in this case, defendant’s use of his bare hands to attack the victim did not support the assessment of 10 points under MCL 777.31(1)(d). In People v Lange, 251 Mich App 247, 256-257; 650 NW2d 691 (2002), this Court, examining both Michigan jurisprudence regarding the definition of “weapon” as used in other criminal statutes as well as dictionary definitions, concluded that the term “weapon” should be defined as an “ ‘article or instrument . . . used . . . for bodily assault or defense,’ ” id., quoting People v Vaines, 310 Mich 500, 505-506; 17 NW2d 729 (1945), or “any instrument . . . used for attack or defense in a fight or in combat,” id., quoting Random House Webster’s College Dictionary (1997). An “article” is defined as “a thing or person of a particular and distinctive kind or class.” Merriam Webster’s Collegiate Dictionary (2003). An “instrument” is defined as “one used by another as a means or aid.” Id. Applying these definitions of article and instrument to the instant case, we conclude that an offender’s bare hands cannot be treated as weapons under OV 1 because, unlike a gun or a knife, hands are not an article distinct from the particular offender. Likewise, the offender’s bare hands are not an instrument “used by another;” rather, the offender’s hands are an integral part of, and not separate from, the offender.

Moreover, as this Court has explained, a weapon can be either animate or inanimate. See People v Kay, 121 Mich App 438, 443-444; 328 NW2d 424 (1982). For example, in Kay, this Court found that a car driven on the streets of Flint and used to attack a person so as to inflict injury, and a horse ridden under similar circumstances so as to inflict injury on a victim on Mackinac Island, both would be considered to be dangerous weapons. Id. If the car or horse touches the victim in the course of being used as a weapon, a score of 10 points under OV 1 would be warranted. But it would be absurd to find that the offender is also a weapon in that scenario because his or her bare hands were used to steer the car or pull on the reins. Hodge, 306 Mich App at ___; slip op at 8. We conclude that an offender can only be scored 10 points under OV 1 if a victim was touched by a weapon distinct from the offender, and an offender’s bare hands do not satisfy that test.

We further note that, in the context of defining the term “dangerous weapons” in the felonious assault statute, MCL 750.82, this Court has held that where a defendant used his bare hands, People v Van Diver, 80 Mich App 352, 356; 263 NW2d 370 (1977), or teeth, People v Malkowski, 198 Mich App 610, 614; 499 NW2d 450 (1993), overruled on other grounds by People v Edgett, 220 Mich App 686 (1996), the evidence did not support a finding that the defendant used a “dangerous weapon.” This Court identified four other assault statutes including “ ‘[a]ssault and infliction of serious injury’ (commonly referred to as aggravated assault), MCL 750.81a,” which unlike felonious assault, do not require the use of a dangerous weapon:

If we were to rule that bare hands could be a dangerous weapon, it would lead to anomalous results, for practically every assault that would qualify as an aggravated assault . . . would also be capable of prosecution as an assault with a dangerous weapon . . . It is our belief that the Legislature did not contemplate this result but instead intended that the statutes should be distinct and separate.

Here too, if a weapon is construed to include an offender’s bare hands under OV 1, every offender who touches a victim during the commission of an offense may conceivably be subject to a 10 point score. Such a construction of OV 1 does not appear to have been contemplated by the Legislature, and we decline to adopt it.

In conclusion, we hold that an offender’s bare hands do not qualify as a weapon under MCL 777.31, and that the trial court erred by assessing 10 points for OV 1 because defendant used only his bare hands, and no distinct weapon, to assault the victim . . .

MCL 777.32 scores the “lethal potential of the weapon possessed or used.” MCL 777.32(1). If “[t]he offender possessed or used any other potentially lethal weapon,” MCL 777.32(1)(e), besides a harmful biological substance or device, a harmful chemical substance or device, an incendiary or explosive device, a fully automatic weapon, a firearm, or a cutting or stabbing weapon, one point should be assessed. MCL 777.32(1)(a)-(e). If “[t]he offender possessed or used no weapon,” zero points should be assessed. MCL 777.32(1)(f).

Because defendant’s bare hands do not qualify as a weapon under OV 1, necessarily, zero points should have been assessed under OV 2 because defendant “possessed or used no weapon” when he assaulted the victim. MCL 777.32(1)(f). Therefore, the trial court erred by scoring any points under OV 2.