People v. Norris

• Citation: 236 Mich. App. 411,600 N.W.2d 658
• Decision Date: 08 October 1999
• Docket Number: Docket No. 202654.
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Oliver NORRIS, a/k/a Deon Johnson, Defendant-Appellant.
• Court: Court of Appeal of Michigan (US)

600 N.W.2d 658

236 Mich. App. 411

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Oliver NORRIS, a/k/a Deon Johnson, Defendant-Appellant.

Docket No. 202654.

Court of Appeals of Michigan.

Submitted January 13, 1999, at Detroit.

Decided June 25, 1999, at 9:35 a.m.

Released for Publication October 8, 1999.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, Arthur A. Busch, Prosecuting Attorney, and Donald A. Kuebler, Assistant Prosecuting Attorney, Chief, Appeals, Research, and Training, for the people.

Laurence R. Imerman, Bingham Farms, for the defendant on appeal.

Before: SAWYER, P.J., and BANDSTRA and R.B. BURNS ¹, JJ.

BANDSTRA, J.

In this case, we are asked to decide whether a chemical device containing a tear gas mixture that was sprayed in the faces of employees during a jewelry store robbery can be a "dangerous weapon" within the meaning of the armed robbery statute, M.C.L. § 750.529; MSA 28.797. We conclude that it can.

I

This case arises from a jewelry store robbery in which store employees were sprayed with a device containing military tear gas and oleoresin capsicum. The chemical spray caused the employees to suffer extreme eye pain and irritation, burning sensations on the skin and in the nose, mouth, and lungs, and breathing difficulties. One of the victims suffered a cornea defect in both eyes that was consistent with having been chemically sprayed. Several perpetrators were involved in the robbery in which twenty Rolex watches, valued at approximately $100,000, were taken. Numerous witnesses observed the robbery, and the perpetrators were immediately apprehended following the robbery. The prosecutor alleged that although defendant was not present during the robbery, he participated in the planning and acted as the getaway driver.

Following a jury trial, defendant was convicted of armed robbery, M.C.L. § 750.529; MSA 28.797. The court also determined that defendant was an habitual offender, fourth offense, M.C.L. § 769.12; MSA 28.1084. Defendant was sentenced to fifteen to twenty-five years' imprisonment. He now appeals as of right. We affirm.

II

Defendant argues that there was insufficient evidence to support his armed robbery conviction because the prosecutor failed to prove that the chemical device containing tear gas and oleoresin capsicum that an accomplice used to spray store employees constituted a "dangerous weapon" within the meaning of the armed robbery statute.² We disagree. In reviewing the sufficiency of the evidence in a criminal case, we must view the evidence in a light most favorable to the prosecution and determine whether a rational trier of fact could find that the essential elements of the crime were proved beyond a reasonable doubt. People v. Hoffman, 225 Mich. App. 103, 111, 570 N.W.2d 146 (1997).

The elements of armed robbery are (1) an assault and (2) a felonious taking of property from the victim's person or presence (3) while the defendant is armed with a dangerous weapon described in the statute. People v. Johnson, 215 Mich.App. 658, 671, 547 N.W.2d 65 (1996). Defendant alleges a failure of proof regarding the third element, which requires the prosecutor to prove that defendant was armed with "a dangerous weapon, or any article used or fashioned in a manner to lead the person so assaulted to reasonably believe it to be a dangerous weapon...." MCL 750.529; MSA 28.797. In the present case, we are concerned with the first part of the inquiry, i.e., whether the chemical spray with which the principal was armed can be considered "a dangerous weapon."³ The armed robbery statute does not define the term "dangerous weapon." MCL 750.529; MSA 28.797; People v. Velasquez, 189 Mich.App. 14, 17, 472 N.W.2d 289 (1991). However, "[w]hether an object is a dangerous weapon depends upon the object itself and how it is use [d]." People v. Barkley, 151 Mich.App. 234, 238, 390 N.W.2d 705 (1986). Further, a dangerous weapon has been described as either (1) a weapon designed to be dangerous and capable of causing death or serious injury⁴ (e.g., a loaded gun) or (2) any other object capable of causing death or serious injury that the defendant used as a weapon (e.g., a screwdriver used as a knife). See CJI2d 18.1; Barkley, supra;

see, also, People v. Goolsby, 284 Mich. 375, 378, 279 N.W. 867 (1938) (a dangerous weapon within the meaning of the felonious assault statute, M.C.L. § 750.82; MSA 28.277, is one that is deadly or capable of inflicting serious injury). Whether an object is a dangerous weapon under the circumstances of the case is a question for the factfinder. Barkley, supra at 238, n. 1, 390 N.W.2d 705; People v. McCadney, 111 Mich.App. 545, 550, 315 N.W.2d 175 (1981); see, also, People v. Jolly, 442 Mich. 458, 470, 502 N.W.2d 177 (1993) ("the factfinder must be permitted to determine the existence of a dangerous weapon ...").

Although there are no Michigan cases directly on point, this Court previously addressed the question in People v. Bender, 124 Mich.App. 571, 576, 335 N.W.2d 85 (1983), regarding whether an aerosol spray can containing Chlorobenzalmalonomatrile used during an assault was a "dangerous weapon" for purposes of the felonious assault statute. This Court declined to hold, as a matter of law, that an aerosol spray can is not a dangerous weapon, but rather concluded that the issue was a question of fact for the trier of fact. Id.

With regard to considering whether mace or pepper spray is a dangerous weapon for purposes of armed robbery, courts in other states have concluded that they can be dangerous weapons. In Pitts v. Oklahoma, 649 P.2d 788, 791 (Okla.Cr. App., 1982), the court stated that although mace is a substance designed as a defensive weapon, it may be used in such a manner that it causes great bodily harm. Thus, the court in Pitts rejected the defendants' argument that insufficient evidence existed that a robbery had been committed with a dangerous weapon. In People v. Elliott, 299 Ill.App.3d 766, 771, 234 Ill.Dec. 303, 702 N.E.2d 643 (1998), the court rejected the defendant's argument that pepper spray was not, "as a matter of law, a dangerous weapon under the armed robbery statute." Although the court recognized that the effects of pepper spray are normally temporary, the effects are disabling and the victims in that case did suffer injury (including breathing difficulties, burning eyes, nausea, and temporary incapacitation) although the injuries may not have been permanent. Id. at 773, 234 Ill.Dec. 303, 702 N.E.2d 643. The court concluded that whether the pepper spray constituted a dangerous weapon was a question properly determined by the trier of fact. Id. Federal courts also have concluded that mace, pepper spray, or tear gas can be a "dangerous weapon" in other contexts. For example, in United States v. Dukovich, 11 F.3d 140, 142-143 (C.A.11, 1994), the court held that tear gas sprayed by a defendant during a bank robbery as the victims were facedown on the floor was a "dangerous weapon" justifying sentence enhancement under the United States Sentencing Guidelines⁵ where the victims experienced eye pain, severe headaches, and burning sensations in their faces and throats. See, also, United States v. Neill, 166 F.3d 943, 949-950 (C.A.9, 1999), cert pending (pepper spray used by a defendant during robberies was a "dangerous weapon" that could be used to enhance a sentence under the United States Sentencing Guidelines where a victim experienced burning sensations in her eyes and nose and developed severe asthma requiring lifelong daily medication); United States v. Bartolotta, 153 F.3d 875, 879 (C.A.8, 1998) (mace constituted "dangerous weapon" justifying sentence enhancement under the United States Sentencing Guidelines where the victim developed chemical pneumonia and had to take daily steroid shots for over four months and steroid pills for one year to cleanse the mace from her body); United States v. Robinson, 20 F.3d 270, 278 (C.A.7, 1994) (mace sprayed by a defendant during a bank robbery constituted a "dangerous weapon" for the purpose of sentence enhancement under the United States Sentencing Guidelines where the victims experienced "pain which lasted for hours and had some residual effect for days"); United States v. Brown, 508 F.2d 427, 430 (C.A.8, 1974) (loaded tear gas gun is a dangerous weapon under a statute that prohibits carrying dangerous weapons on an aircraft).⁶

In the present case, the victims testified that they experienced extreme eye pain and burning sensations that required two of them to seek medical treatment. William Henry testified that he experienced severe pain on his face and in his left eye and had to be taken to the hospital to have his eyes flushed. He further testified that as a result of being sprayed, he needs glasses to read and has blurred vision in his left eye. Further, Henry's ophthalmologist testified that, although not permanent, Henry had a cornea defect in both eyes that was consistent with having been chemically sprayed. Dorothy Fox, who was also taken to the hospital to have her eyes flushed, testified that the spray permeated her clothing and caused a severe burning sensation on her skin and in her eyes, nose, and mouth that lasted, "several hours, not even until the morning hours until it started going away...." The spray also penetrated and burned her lungs, making it difficult to breathe. Kathleen Sharbo testified that, although she did not go to the hospital after the incident, she was unable to wear her contact lenses for a month because the spray irritated her eyes. Under the facts of this case, we conclude that the evidence, when viewed in a light most favorable to the prosecution, was sufficient to permit a reasonable jury to conclude that the tear gas mixture was a "dangerous weapon" within the meaning of the armed robbery statute.⁷

III

Defendant also argues that the evidence was insufficient to support his armed robbery conviction...