In People v. Ackah-Essien, No. 317411, the Michigan Court of Appeals held that a BB gun as defined in MCL 750.222(d), is not a “dangerous or deadly weapon or instrument” for purposes of MCL 750.226. Accordingly, the Court found there was insufficient evidence to sustain defendant’s conviction for carrying a weapon with unlawful intent under MCL 750.226.
Defendant was charged with conspiracy to commit armed robbery, armed robbery, unlawful imprisonment, and several other charges including carrying a weapon with unlawful intent under MCL 750.226. The defendant’s first trial ended in a hung jury. At his second trial, defendant was found guilty of the aforementioned charges. On appeal, the defendant challenged his conviction and sentence under MCL 750.226 asserting that a BB gun does not qualify as a “firearm. . . or any other dangerous or deadly weapon,” that his second trial violated the Double Jeopardy Clause of the U.S. Constitution, and that the trial court erred in its offense variable scoring during sentencing.
The Michigan Legislature has defined “firearm” to exclude “a smooth bore rifle or handgun designed and manufactured exclusively for propelling by a spring, or by gas or air, BBs not exceeding .177 caliber.” MCL 750.222(d). The Legislature expressly excluded BB guns of this type from the definition of “firearm” as used in other statutes as well. See MCL 8.3t.
Because the trial evidence established that the weapon used by the defendant was a smooth bore handgun-style BB gun that did not exceed .177 caliber, it held that a BB gun as defined in MCL 750.222 (d) is excluded from the meaning of “any dangerous or deadly weapon or instrument) in MCL 750.226. First, based on the clear language of the statute, the Court determined the BB gun used in this case did not fall within the list of weapons or instruments enumerated in the statute (“a pistol or other firearm or dagger, dirk, razor, stiletto, or knife having a blade over 3 inches in length”). Second, given the Legislature’s exclusion of the type of BB gun used by the defendant from the definition of a “firearm,” the Court reasoned such a gun was not a “dangerous or deadly instrument.”
After concluding the evidence was insufficient to prove defendant carried a dangerous weapon with unlawful intent, MCL 750.226, the Court vacated this portion of the trial court’s ruling, affirmed defendant’s convictions on the remaining charges and defendant’s sentence. The case was remanded to the lower court for entry of an amended judgment of sentence consistent with its opinion.
