Court’s Instructions on Definition of “Dangerous Weapon,” Which Mirrored JIGS but not Statute, Were Not Erroneous

State v. Weyaus, Minn.Ct.App., 9/3/2013.  Mr. Weyaus struck B.S. with what the court described as a “child’s folding stadium chair.”  It apparently had an image of Mickey Mouse on it.  Maybe it was this one, the court doesn’t elucidate further. The state charged Mr. Weyaus with assault with a dangerous weapon, the jury convicted him, and the court sentenced him. 

Two questions  here.  Did the court properly instruct the jury on the definition of “dangerous weapon?  Is this really an assault with a dangerous weapon?  Let’s start with the first question, for which we need a chart:

Minn.Stat. 609.02, subdivision 6

CRIMJIG 13.06

“Dangerous weapon” means any firearm, whether loaded or unloaded, or any device designed as a weapon and capable of producing death or great bodily harm, any combustible or flammable liquid or other device or instrumentality that, in the manner it is used or intended to be used, is calculated or likely to produce death or great bodily harm, or any fire that is used to produce death or great bodily harm

A “dangerous weapon” is anything designed as a weapon and capable of producing death or great bodily harm, or any combustible or flammable liquid or anything else that, in the manner it is used or intended to be used, is known to be capable of producing death or great bodily harm or any fire that is used to produce death or great bodily harm.

The italics is where the fight is.  Mr. Weyaus said that the jury instruction permitted the jury to convict him it he used the chair merely in a manner that could have resulted in great bodily harm, which, he says, is not what the statute says.  The court of appeals goes back to a 1985 opinion, State v. Graham, 366 N.W.2d 335 (Minn.Ct.App. 1985), where it said that the statutory “likely to produce” language may dilute the state’s burden of proof.  The court said that the solution was to borrow the definition of “deadly weapon” from the Model Penal Code, which had this “known to be capable of producing death or serious bodily injury” language.  The jury instructions committee jumped all over that and rewrote the JIGS accordingly.  The rest is pretty much history.  The court does dredge up an old case of mine, State v. Gebremarian, 590 N.W.2d 781 (Minn. 1999), where the trial court had given the jury three totally different instructions on the definition of dangerous weapons.  The first two were completely wrong under either the statute or the JIGS; the third one tracked the JIGS, but the actual holding of the case was that because the judge had so thoroughly confused the jury Mr. Gebremarian should get a new trial.  For Mr. Weyaus, the court of appeals believes that the supreme court had correctly endorsed the JIGS language, so its use in his trial was okay.

The second question dives into the murky waters of just what a “dangerous weapon” is.  Think professional boxer punching you with his fists.  Best anyone can say is that it’s a fact specific determination, and it’s determined by whichever side can command a majority.  Here, Mr. Weyaus can’t get any votes, so that Mickey Mouse chair is a “dangerous weapon.”