Sufficiency of the evidence for a CCW conviction (MCL 750.227(1)); Whether a butterfly knife constituted a “dangerous weapon”; People v Lynn; “Other dangerous weapon”; People v Brown; A “dangerous stabbing weapon”; M Crim JI 11.4

Holding that “the evidence was insufficient to establish that the butterfly knife” at issue was a “dangerous weapon” under MCL 750.227(1), the court reversed defendant’s CCW conviction and sentence, and remanded for entry of a judgment of acquittal. On appeal, the prosecution asserted “that it could—and did—prove that the butterfly knife was per se dangerous by presenting evidence of its characteristics.” But the court found that argument was “foreclosed by Lynn, which holds that if an instrument is not a dagger, dirk, stiletto, or double-edged nonfolding stabbing instrument, the prosecution must proceed on the theory that the instrument is an ‘other dangerous weapon.’” Further, the prosecution did not proceed at trial on the per se theory. “Rather, it asserted that the butterfly knife was a ‘dangerous stabbing weapon,’ and the jury was instructed consistent with M Crim JI 11.4[.]” As its theory was “that the butterfly knife was an ‘other dangerous weapon,’” it had the burden to prove “‘that the instrument was used, or intended for use, as a weapon for bodily assault or defense.’” The court concluded that it did not do so. “The evidence showed that defendant was seated in his truck, playing a video game and eating a sandwich when the officers approached. He was polite, cooperative, and consented to a search of the vehicle. The butterfly knife was found in the center console, beneath other items. [He] told officers—and later testified—that he used [it] for ‘party tricks with his friends’ and had forgotten it was in the truck.” One of the officers “confirmed that defendant said or did nothing suggesting an intent to use the knife in a dangerous way.” And while both the other officer and defendant acknowledged that it “could be used as a dangerous weapon, that possibility alone is insufficient to establish that ‘defendant used the instrument, or was carrying the instrument for the purpose of use, as a weapon.’” And the prosecution did not present any “evidence contradicting defendant’s explanation or supporting an inference that he intended to use the knife for assaultive or defensive purposes.”