Michigan Court Of Appeals Holds BB Gun Not "A Deadly Or Dangerous Weapon"

On June 4, 2015, the Michigan Court of Appeals held in a criminal case that a BB gun is not a "deadly or dangerous weapon" under MCL 750.226, Carrying a Weapon with Unlawful Intent.

In People v Ackah-Essien, Docket No. 317411, the Michigan Court of Appeals addressed the issue of whether a jury could convict defendant of Carrying a Weapon with Unlawful Intent when defendant possessed only a BB gun in the course of an armed robbery.

The Court first recited the facts of the case.

Defendant’s convictions arise out of the robbery of a 21-year-old delivering pizza to four young men who had conspired to commit the crime by having a female friend place an order for food to be delivered to an abandoned house. The trial resulting in defendant’s convictions was the second; defendant’s first trial resulted in the trial court declaring a mistrial when the jury was unable to reach a verdict . . .

The testimony at trial showed Michael Smith and Anteyon Russell were identified from their clothing as two of three or four black males that a citizen had observed near the scene of the crime. Russell pleaded guilty to conspiracy to commit armed robbery and several other crimes as part of an agreement for his truthful testimony against defendant in the instant case. Detective Dan Wiggins obtained the fingerprints of Smith and Martrell Jones from pizza boxes he located during the criminal investigation. Jones entered into a guilty plea on multiple charges for the armed robbery of the victim as part of a plea agreement for the dismissal of certain charged offenses in exchange for his truthful testimony against defendant in the instant case.

Martrell Jones testified that he lived in Chicago where he met Michael Smith and defendant through his high school football team. In early April 2012, Jones was on spring break and decided to go to Michigan for a basketball tournament at Smith’s invitation. Defendant came with Jones and Smith on a train from Chicago to South Bend; all three are friends. Defendant paid Smith’s travel expenses. Smith asked his uncle, Paul Williams, to pick him up at the South Bend Airport, where a train from Chicago also deposits passengers. When Williams arrived, Jones and defendant were also there, and Williams took the three of them to his home near Walter Ward Park in Dowagiac.

Anteyon Russell testified that after defendant, Smith, and Jones got to Dowagiac, defendant, an acquaintance of Anteyon, but not a friend, suggested the idea of committing an armed robbery. According to Anteyon, defendant said he had done “home delivery robberies” of pizza delivery men in Wisconsin. Rolandis Russell is the older brother of Anteyon. Anteyon had been in the company of Smith, Jones and defendant a few days before the robbery. Rolandis heard defendant suggest a robbery, but Rolandis declined to participate . . .

Anteyon testified that the four men met at Anteyon’s grandmother’s house before leaving to play basketball and again shoot a BB gun recreationally. Defendant again brought up the topic of a robbery, saying he knew who to call and “set it up.” The codefendants found an empty house and determined it would be a suitable location for the planned crime. Anteyon suggested he had a gun that might work and went home to obtain a black BB gun pistol that was later used in the robbery of the victim. Anteyon gave the black BB gun to defendant. Anteyon also testified that once he was back at the unoccupied house, which had no electricity, defendant called a female friend to place an order with Pizza Hut. While the group waited inside the house for the pizza to arrive, they drank a pint of whiskey and planned “who was gonna do what.”

Jones testified that Anteyon went to his grandmother’s house to change his clothes and get a BB gun, which looked like a “handgun.” Someone suggested they call Pizza Hut, and defendant called his girlfriend to have her do so, instructing her to “get a lot of pizzas,” and giving her an address for the delivery. The group then walked to the vacant house they had earlier selected to wait and planned “who would do what.” Defendant, who asked to be called “Pistol,” elected to hold the gun to the victim’s face, while Smith held the victim and Anteyon went through his pockets. Jones agreed to take the victim’s car and be the driver . . .

Smith, a childhood friend of Anteyon’s from Dowagiac who had moved to Chicago, testified for the defense that he had contacted Anteyon in advance to make arrangements to get together while Smith was in town. Smith also testified that he, Jones and Anteyon planned the robbery of the victim. Smith testified that he had pleaded guilty to his involvement in the robbery and that defendant was not involved in either the planning or commission of the robbery. During cross-examination, Smith admitted that during the course of the investigation, he told the police on two separate occasions that defendant was involved in the robbery and told them that defendant pointed the gun at the victim. While Smith denied that a gun was used in the crime, he testified when he entered his guilty plea that “[a] pellet gun, BB gun,” was used in the crime . . . .

The jury convicted defendant for the crimes listed above, and the trial court sentenced defendant as noted. Defendant now appeals by right his convictions and sentences.

The Court's analysis of whether there was sufficient evidence for the jury to convict defendant of Carrying a Weapon with Unlawful Intent followed.

The evidence at trial established that the weapon defendant used in the instant case was a handgun-style BB gun that appeared to the victim to be a “real” gun. Under the clear language of the statute, the BB gun described as being used in the instant case does not come within the list of weapons or instruments specifically enumerated in MCL 750.226, i.e., “a pistol or other firearm or dagger, dirk, razor, stiletto, or knife having a blade over 3 inches in length.” The weapons or instruments specifically named in MCL 750.226’s list are dangerous per se. People v Parker, 288 Mich App 500, 507; 795 NW2d 596 (2010). The prosecution argues to the contrary, that the BB gun that defendant used was a dangerous weapon per se, based on evidence that the gun “broke the window to Williams’ stove.” We conclude this argument is not supported by the evidence. We assume the prosecution is referring to the testimony of Anteyon, who described some horseplay before the crime where he, defendant and the other conspirators were playing with “long BB guns” inside Williams’ house and that one of them had shot out the stove glass with it. But Jones also testified that the BB gun used in the crime looked like a handgun; the victim said he reflexively swatted it away when it was pointed in his face, and that the man with the gun was called “Pistol” by his compatriots. Therefore, the evidence shows that the BB gun that shot out the stove glass was different from the BB gun used to rob the victim. Since a BB gun is not among the weapons or instruments listed in MCL 750.226, it is not a dangerous weapon per se. Parker, 288 Mich App at 507. Therefore, the BB gun must be construed as falling within the catchall language of “any other dangerous or deadly weapon or instrument,” MCL 750.226, in order to sustain defendant’s conviction.

MCL 750.226 does not define what comprises “or any other dangerous or deadly weapon or instruments,” or whether a BB gun is included, the statute’s prohibition against “going armed with a firearm or dangerous weapon, with the intent to unlawfully use the weapon against another person.” Because the Legislature has not expressly defined the general language “or any other dangerous or deadly weapon or instrument” as used in MCL 750.226, it is open to more than one reasonable meaning. A statutory provision is ambiguous only if it irreconcilably conflicts with another provision, or it is equally susceptible to more than a single meaning. People v Gardner, 482 Mich 41, 50 n 12; 753 NW2d 78 (2008). Consequently, statutory construction is required. See People v Feezel, 486 Mich 184, 205; 783 NW2d 67 (2010) (“When a statute is ambiguous, judicial construction is appropriate to determine the statute’s meaning.”) . . . .

Because the Legislature has excluded through both MCL 750.222(d) and MCL 8.3t smooth-bore BB guns that propel BBs not exceeding .177 caliber from the meaning of “firearm” as used MCL 750.226, it is reasonable to infer that the Legislature did not intend to include BB guns of this type within the catchall phrase “or any other dangerous or deadly weapon or instrument” under MCL 750.226. Stated otherwise, by excluding smooth-bore BB guns that propel BBs not exceeding .177 caliber from the meaning of “firearm,” the Legislature must have determined that such a BB gun was not a “dangerous or deadly weapon or instrument.” See, e.g., Parker, 288 Mich App at 507-508 (including knives with blades more than three inches in length as dangerous weapons per se indicates that knives with shorter blades are not dangerous per se and thus not included within the phrase “any other dangerous or deadly weapon or instrument”). We therefore hold that a BB gun as defined in MCL 750.222(d) is excluded from the meaning of “any other dangerous or deadly weapon or instrument” in MCL 750.226 . . . .

In applying this deferential review standard, we conclude the evidence shows that defendant went from one place to another while possessing a handgun-style BB gun with the intent to use the weapon unlawfully against another person. Mitchell, 301 Mich App at 293. The prosecution argues that the BB gun defendant used was a dangerous weapon per se because before the robbery it was used to shoot out the glass of a stove. But as discussed already, that reading of the record is not accurate; the testimony showed it was a long, rifle-type BB or pellet gun that shot out the glass of Williams’ stove. In this case, as in Parker, the prosecution presented no evidence that the BB gun in question was a dangerous weapon per se. Instead, the record shows that the weapon defendant used was a handgun-style BB gun. There was no evidence presented at trial that the handgun-style BB gun defendant used in the robbery was anything other than “a smooth bore . . . handgun designed and manufactured exclusively for propelling by a spring, or by gas or air, BBs not exceeding .177 caliber.” MCL 750.222(2). For the reasons previously discussed, such a BB gun does not come within meaning of “any other dangerous or deadly weapon or instrument” under MCL 750.226. Consequently, the evidence was insufficient to prove all the elements of MCL 750.226, and defendant’s conviction of that offense cannot be sustained. Mitchell, 301 Mich App at 294; Parker, 288 Mich App at 509.