People v. Vaughn

Decision Date02 October 1979
Docket NumberDocket No. 78-2640
Citation92 Mich.App. 742,285 N.W.2d 444
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Marcus VAUGHN, Defendant-Appellant. 92 Mich.App. 742, 285 N.W.2d 444
CourtCourt of Appeal of Michigan — District of US

[92 MICHAPP 743] Norman R. Robiner, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., E. Reilly Wilson, App. Chief Asst. Pros. Atty., for plaintiff-appellee.

Before MAHER, P. J., and BRONSON and MOORE, * JJ.


Defendant was charged with felonious assault, M.C.L. § 750.82; M.S.A. § 28.277 (count 1), and felony-firearm, M.C.L. § 750.227b; M.S.A. § 28.424(2) (count 2). The information specifically charged that the firearm and the weapon used in the assault was a handgun. A Recorder's Court Jury returned a verdict of guilty of felonious assault and not guilty of felony-firearm. Defendant moved for a judgment N. o. v. on the grounds that the verdicts were inconsistent. The trial judge denied the motion and defendant, after being sentenced to 2 to 4 years in prison, appeals as of right. We reverse.

The complainant testified that on February 8, 1978, she was standing on a Detroit street attempting to catch a cab. She stated that defendant walked up to her, grabbed her arm and put a gun to her stomach. She testified that she knew something about guns and that the gun in question was a revolver. The defendant was arrested shortly [92 MICHAPP 744] thereafter by a plain clothes police officer as defendant was running down the street. No gun was found.

Defendant testified that he was interested in buying some joints. He claimed to have walked by the complainant and asked her what she was selling. When she told him to get away from her he replied, "Oh, bitch, I will kill your ass". He stated that he did not mean it, that he did not touch her, that he was not carrying a gun and that he merely pointed at her while wearing black gloves.

In charging the jury the trial court read the applicable statutes and accurately instructed the jury as to the specific elements of both counts. It defined "gun" as a firearm and defined "firearm" as including any weapon from which a dangerous object may be shot or propelled by the use of explosives, gas or air. The court further instructed the jury that a gun is a firearm and that a firearm does not include smooth bore rifles or handguns designed and manufactured exclusively for shooting BB's not exceeding .177 caliber by means of spring, gas or air. The jury was also informed that it did not matter whether or not the gun was loaded. Finally the jury was told that there were four possible verdicts: guilty or not guilty of count 1 and guilty or not guilty of count 2.

The jury in returning a verdict of guilty as to count 1 must have decided that a gun did exist and in returning a verdict of not guilty as to count 2 must necessarily have determined the nonexistence of the gun. Thus the verdicts are inconsistent, People v. Goodchild, 68 Mich.App. 226, 242 N.W.2d 465 (1976).

The conclusion that the verdicts in this case are inconsistent can be avoided only if the definition of [92 MICHAPP 745] handgun for purposes of the felonious assault statute differs from the definition of handgun for purposes of the felony-firearm statute, I. e., if a handgun as "dangerous weapon" is different from a handgun as "firearm". We find the definitions to be one and the same and thus find the verdicts to be inconsistent, requiring reversal. People v. Goodchild, supra.

Felonious assault requires proof of a simple assault committed with a dangerous weapon. People v. Johnson, 42 Mich.App. 544, 202 N.W.2d 340 (1972). Michigan law generally focuses upon the actions of the defendant rather than the apprehension of the victim in establishing the existence of a criminal assault. People v. Lilley, 43 Mich. 521, 5 N.W. 982 (1880). However, an exception exists as to felonious assaults where the charge alleges that the weapon is a gun. Where a firearm is used as a firearm, as...

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9 cases
  • State ex rel. Johnson v. Hamilton
    • United States
    • West Virginia Supreme Court
    • April 28, 1980
    ...1979); State v. Handley, 585 S.W.2d 458, 463-65 (Mo.1979); Simon v. Commonwealth, 258 S.E.2d 567 (Va.1979); cf. People v. Vaughn, 92 Mich.App. 742, 285 N.W.2d 444 (1979).6 I do not envision the majority accepting the approach found in People v. White, 390 Mich. 245, 212 N.W.2d 222 (1973). T......
  • People v. Losey
    • United States
    • Court of Appeal of Michigan — District of US
    • June 16, 1980
  • People v. Philpot
    • United States
    • Court of Appeal of Michigan — District of US
    • June 16, 1980
    ...250 (1972). The proper corrective measure for inconsistent verdicts is to vacate or modify the jury's decision. See People v. Vaughn, 92 Mich.App. 742, 285 N.W.2d 444 (1979); People v. McCurtis, 84 Mich.App. 460, 269 N.W.2d 641 (1978); Goodchild, supra. There is no authority for augmenting ......
  • People v. Lewis
    • United States
    • Michigan Supreme Court
    • February 22, 1983
    ...ground that the verdicts were inconsistent, and the Court of Appeals affirmed on the authority of its opinion in People v. Vaughn, 92 Mich.App. 742, 285 N.W.2d 444 (1979). The Court of Appeals affirmed Hunt's convictions. It concluded, however, that the trial judge had erred in refusing to ......
  • Request a trial to view additional results

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