Michigan Court of Appeals Holds Offense Variable 1 at 15 Points is Proper Where Defendant Reached for Knife in Sock

On February 18th, 2014, the Michigan Court of Appeals held that a defendant's reaching for a knife in his sock during an armed robbery was sufficient to "display or imply" a dangerous weapon under Offense Variable 1 of the Michigan Sentencing Guidelines, and therefore the scoring of fifteen points by the trial court under that offense variable was appropriate.

In People v. Brooks, Docket No. 312639, the defendant pleaded no contest to armed robbery and the trial court sentenced him to a term of years in prison.  On appeal, Brooks argued that the trial court erred in scoring his sentencing guidelines, specifically that Offense Variable 1 - Aggravated Use of a Weapon - should be scored at five points rather than at fifteen points.  Brooks contended that he never threatened anyone with the knife in his sock, and the scoring of fifteen points under Offense Variable 1 requires that "[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.” 

Brooks asserted that because he never removed the knife from his sock he could only "display or imply" the weapon, therefore requiring a scoring of five points under Offense Variable 1.  The Court of Appeals disagreed with Brooks.  The Court stated that it had never before considered the differences between a "threat" and a "display" under Offense Variable 1, and it determined that

[i]n other words, the fact that some kind of weapon is apparently present, by sight or by implication, in the abstract warrants a score of five points pursuant to MCL 777.31(1)(e). To warrant a score of 15 points pursuant to MCL 777.31(1)(c), there must be some reason, however slight, for the victim to reasonably perceive that the weapon will actually be used, and moreover, will actually be used against the victim. A threat exists when a knife is used for the purpose of suggesting to a victim a “menace or source of danger.” Random House Webster’s College Dictionary (1997)."