The Jaws That Bite, the Claws That Snatch

• Author: Joseph K. Scott
• Pages: 303-315

Page 303

Title taken from "Jabberwocky," by Lewis Carol.

The author wishes to thank Professor Lee Hargrave for advising him on this article. Everything depends on Mary Jo. Thanks to Mark Smylie, who put me as an inspiration in his first published work.

I Introduction

In State v. Michels,¹ the Louisiana Fifth Circuit Court of Appeal affirmed the defendant's conviction on a charge of aggravated oral sexual battery when the only "weapon" involved was Michels' pit bull terrier. In affirming the conviction, the court failed to address a longstanding line of Louisiana criminal cases holding that an inanimate object is needed to meet the dangerous weapon requirement within the meaning of Louisiana Revised Statutes 14:2(3).² Although the court reached the right result in affirming the conviction, the lack of guidance regarding dogs as dangerous weapons in Louisiana provides no real value for future courts considering the problem.

The scope of this note is limited to an examination of the facts and reasoning of the court in State v. Michels, the definition of dangerous weapon, and certain issues of statutory construction.³ It will also provide a survey of the national jurisprudence on the issue of dangerous weapons and dogs and a proposed solution to the oversight of the court in Michels.

II Facts

The victim was walking around the trailer park where she lived in Kenner on the evening of July 9, 1997, when she saw the defendant, whom she knew was also a resident of the trailer park. She accepted an offer from the defendant to join him for a beer in his trailer. After a few minutes inside the trailer, while both were drinking their beers, the defendant removed his pants and forced the victim's pants down. Michels then forced her to perform oral sex on him and raped her.

At trial the victim stated that she fought Michels off by kicking and hitting him, but that he ignored her attacks and statements that she did not want to have sex with him. The victim also testified at trial that the defendant's pit bull was in the trailer during the incident and that it bared its teeth and growled at the victim while she was struggling with the defendant. She said she believed the defendant could control the dog's behavior and that he would command the dog to attack her if she continued to struggle.

Based on the victim's testimony, the trial court found that the defendant was armed with a dangerous weapon at the time of the Page 304 encounter, and thus, defendant's conduct satisfied the elements of aggravated oral sexual battery within Louisiana Revised Statutes 14:43.4(3).⁴ The appellate court, in discussing the claimed insufficiency of the bill of information filed against the defendant, makes clear "[f]rom our review of the proceedings in the record prior to trial, it was obvious that only the first three subsections of R.S. 14:43.4 could possibly apply in this case. All three deal specifically with force or threats of force."⁵

The defendant was convicted by jury trial of aggravated oral sexual battery. A motion in arrest of judgment or new trial was denied by the trial court, and the defendant was sentenced to five years at hard labor, suspended, with three years active probation.⁶ The appellate court affirmed the conviction and held that sufficient evidence was provided for the jury to find the defendant armed with a dangerous weapon.⁷

III Discussion

A Statutes And Cases On Weapon Definition

1. Statutory Definition

Louisiana Revised Statutes 14:2 provides the definitions used throughout the criminal code. Subsection (3) states, "'Dangerous Page 305 Weapon' includes any gas, liquid, or other substance or instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm."⁸The rule of interpretation for criminal statutes is expressed in Louisiana Revised Statutes 14:3, which states:

The articles of this Code cannot be extended by analogy so as to create crimes not provided for herein; however, in order to promote justice and to effect the objects of the law, all of its provisions shall be given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.

In light of these two articles, two questions arise: how do they relate to each other, and how have they been treated in the jurisprudence.

Professor Dale Bennet, who served as Louisiana State Law Institute Reporter for the 1942 revision of the Louisiana Criminal Code, explained that the code was to be read as a civilian document, not a mere compilation of common law rules.⁹ The articles of the code were based on the civilian model, with careful generalization, so as to avoid lengthy and specific enumerations as well as the claims of defendants that "my crime doesn't exactly match your statute."¹⁰Further, the genuine construction indicated by Louisiana Revised Statutes14:3 indicates that the articles should be given a natural and logical interpretation, rather than a mechanistic or overly limiting interpretation.¹¹ For Professor Bennet, the two articles together were a codification of the Louisiana jurisprudence, which allowed a variety of items to be designated as dangerous weapons, depending on "whether it is dangerous 'in the manner used.'"¹²

2. Louisiana Case Law On Weapons

One of the first cases to deal with the dangerous weapon issue was State v. Calvin,¹³ in which the Supreme Court of Louisiana reversed a conviction of aggravated battery when the defendant had kicked and bitten her victim. The holding in this regard is quite narrow, and in summary states: teeth and fists are not dangerous weapons within the meaning of Louisiana Revised Statutes14:2(3).

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The more influential portion of the case is the dicta, wherein Justice Kennon responded to a claim by the district judge that "the Supreme Court of the State of Louisiana held that a person's bare fist could be classed and used as a dangerous weapon, and that a person's teeth could be classed as a dangerous weapon."¹⁴ He stated that "[t]he fact remains that there must be some proof of the use of some inanimate instrumentality before a defendant can be held guilty of assault 'with a dangerous weapon.'"¹⁵

The case was criticized in academia for its dicta. A casenote on State v. Calvin explained that instrumentality, as defined in Webster's Dictionary, was merely a force or means used to achieve an end, and had nothing to do with the animate or inanimate status of the means employed.¹⁶ The same article proposed a more flexible test for defining dangerous weapon, stating, "[t]he potential danger of the method used should be the test of a 'dangerous weapon,' whether it be a knife, the teeth, the fist, a gun, a stick, a dog, or any other animate or inanimate instrumentality."¹⁷ Professor Bennett approved of the result in Calvin, but saw the dicta as a potential problem and hoped that it would be restricted to the facts of the case. He noted that it would be absurd if an offender who "set a pack of vicious dogs upon another would not be using a dangerous weapon because the dogs could not be classed as 'inanimate'"¹⁸ and would therefore be guilty only of simple battery.

Despite the academic criticism, subsequent Louisiana cases have cited Calvin favorably.¹⁹ Thus, the case for its dicta, if not the holding, may be considered enshrined in the Louisiana jurisprudence. It ought not to be disturbed lightly.

3. National Case Law On Weapons

Nationally, Calvin has been cited on both sides of the dangerous weapon issue. The Massachusetts case of Commonwealth v. Davis²⁰cited Calvin for support in holding:

[T]he notion that parts of the body may be used as dangerous weapons has not been generally accepted elsewhere. The clear Page 307 weight of authority is to the effect that bodily parts alone cannot constitute a dangerous weapon for the purpose of an aggravated assault based on the alleged use of such a weapon. This is so, irrespective of the degree of harm inflicted.²¹

In contrast, the Minnesota Supreme Court held in State v. Born that "[f]ists, when used to strike, and feet, when used to stomp another person, may or may not be dangerous weapons depending on the circumstances of the case."²² Regardless, the bulk of authority favors the Louisiana position on unarmed assailants, as shown by the Nebraska case of State v. Bachelor which held the "opinions in VanDiver, Owusu, Davis, and Calvin, to be sound, as is the dissent in Sturgis. They represent the majority view"²³ in finding that hands and feet are not dangerous weapons.

Public policy, as a whole, supports the notion that fists and teeth are not ordinarily dangerous weapons. Making any person's hands, feet, or teeth dangerous weapons gives the state an endless capacity to upgrade offenses.²⁴ Matters of proof become extraordinarily difficult, when a person claims that not only was a defendant behaving in a threatening or menacing manner so as to constitute assault, but that the defendant used his bare hands in a manner that suggested they were dangerous weapons thus making the appropriate charge aggravated assault. Perhaps a boxer or martial arts expert should be so categorized, but the results of such an attack have already been considered by the legislature, and the statutes reflect this consideration, as discussed below.

B Disparity Of Sentencing And Development Of Intermediate Offenses

Simple battery is a battery committed without a weapon, and carries a maximum sentence of six months in jail or...