People v. Grant, Docket No. 169017

• Decision Date: 26 May 1995
• Docket Number: Docket No. 169017
• Citation: 211 Mich.App. 200,535 N.W.2d 581
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. James GRANT, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 581

535 N.W.2d 581

211 Mich.App. 200

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. James GRANT, Defendant-Appellee.

Docket No. 169017.

Court of Appeals of Michigan.

Submitted May 10, 1995, at Detroit.

Decided May 26, 1995, at 9:10 a.m.

Released for Publication Aug. 3, 1995.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of Research, Training, and Appeals, and Jeffrey Caminsky, Asst. Pros. Atty., for the People.

Gerald S. Surowiec, Farmington Hills, for defendant.

Before MARKEY, P.J., and MacKENZIE and STARK, ^* JJ.

PER CURIAM.

The people appeal as of right from an order of the trial court dismissing a charge of felonious assault, M.C.L. § 750.82; M.S.A. § 28.277, brought against defendant. We reverse and reinstate the charge.

This case arises out of a dispute over a parking spot. While the victim, Linda Williams, was waiting in her vehicle for a car to leave a parking spot so she could park in the empty space, defendant pulled his automobile into that spot ahead of her. As defendant got out of his car, Williams, still seated in her vehicle, asked defendant, "Excuse me, sir, didn't you see me sitting here," to which defendant responded by cursing at her as he walked away and telling her to take the next spot. After the two briefly exchanged other expletives, Williams then replied: "That's what's wrong with us in society today; [we] have no respect for the next person." Upon hearing this, defendant turned around, reached in his pocket, pulled out a pocket knife, opened the blade, and started walking toward Williams' car, saying "Bitch, I'll cut you." Williams quickly rolled up her window and defendant stopped when he was approximately six to seven feet from her car. Defendant then turned around and walked away.

Defendant was charged with and bound over on one count of felonious assault, M.C.L. § 750.82; M.S.A. § 28.277. Defendant subsequently filed a motion to quash the information, arguing that there had been no present ability to commit the battery; according to defendant, Williams rolled up her window when he was six to seven feet from her car, at which point he walked away, and showing a knife did not constitute felonious assault. In granting defendant's motion to quash and dismissing the case without prejudice, the trial court relied on People v. Lilley, 43 Mich. 521, 5 N.W. 982 (1880), and held that "the examining Magistrate did abuse her discretion in binding this Defendant over for trial. There's a sufficient distance between them. The assault could not have taken place." The people appealed. We reverse.

We review for error a lower court's decision to grant a motion to quash on legal grounds. People v. Cunningham, 201 Mich.App. 720, 723, 506 N.W.2d 624 (1993). The trial court, however, reviews for abuse of discretion a lower court's decision to bind over a defendant. People v. Flowers, 191 Mich.App. 169, 174, 477 N.W.2d 473 (1991). To secure the binding over of a defendant, the prosecution must present to the district court sufficient evidence establishing, as a matter of law, that the defendant probably committed the offense charged. Id.

A simple criminal assault has been defined as "either an attempt to commit a battery or an unlawful act which places another in reasonable apprehension of receiving an immediate battery." People v. Johnson, 407 Mich. 196, 210, 284 N.W.2d 718 (1979); see also People v. Jones, 443 Mich. 88, 92, 504 N.W.2d 158 (1993). Felonious assault is further defined as (1) a simple assault, (2) aggravated by the use of a weapon, and (3) including the element of present ability or apparent present ability to commit a battery. Id. at 100, 504 N.W.2d 158; see also People v. Malkowski, 198 Mich.App. 610, 614, 499 N.W.2d 450 (1993).

Applying the law to the facts of this case, we believe that Williams' testimony at the preliminary examination was sufficient on a probable cause basis to establish all three elements of felonious assault: defendant approached Williams with an open knife in his hand, he stated his intent to "cut" her, and he stopped coming toward her only because she quickly rolled up her car window before he reached her vehicle. We do not believe that the distance of six to seven feet eliminated defendant's "present ability or apparent present ability to commit a battery," as defendant and the trial court surmised. The flaw in their logic becomes clear when one considers that defendant could have thrown or intended to throw the knife at Williams from that distance, and he could have opened an unlocked door or even broken the window. Defendant's acknowledgment that a gun rather than a knife would have given him the present ability to commit a battery is, therefore, spurious.

The trial court and defendant also erred in relying on an 1880 decision of our Supreme Court as being dispositive of the motion to quash. Lilley, supra. The crime of felonious assault did not exist at common law when the Lilley decision was published but became part of the Penal Code when the...