(Source: MIRS.news, Published 03/30/23) A teen accused of aiding and abetting an assault with a dangerous weapon – tennis shoes and flip-flops – will stand trial, the state Court of Appeals ruled.
In a 2-1 decision, the court agreed with the Livingston County prosecutor’s argument that the footwear worn by the attackers who kicked a 16-year-old were dangerous weapons for the purposes of statute that allows the prosecution to automatically charge the teen assailants as an adult.
“Because a shoe is ‘likely to cause … bodily injury when used as a weapon’ … the circuit court did not abuse its discretion by denying defendant’s motions to quash the bindover and dismiss for lack of personal jurisdiction,” the unpublished opinion from Judges Kathleen Jansen and Kirsten Frank Kelly reads.
Presiding Judge Noah P. Hood dissented, saying the case “exposes a potential loophole.”
“By affirming,” he wrote, “we allow the prosecution to elevate an otherwise juvenile charge to an automatic waiver charge by alleging use of a dangerous weapon, when the weapon at issue is an article of clothing. …
“Here, the district court did not make findings or legal conclusions about whether and how the flip-flop and tennis shoe functioned as a dangerous weapon,” Hood noted. “… A flip-flop or tennis shoe does not satisfy the statutory definition for dangerous weapon under the automatic waiver statute.”
At issue are two kicks in the 12-second attack, Hood wrote.
Evan Andrew Oslund was charged as an adult under the automatic waiver statute with aiding and abetting an assault with intent to do great bodily harm less than murder in connection with the assault of a 16-year-old boy.
It is alleged that a co-defendant befriended the 16-year-old, who was a new student in the school district, and that he introduced his friends to the teen. During that meet-and-greet at a skate park near their school, Oslund allegedly filmed his two friends attacking the victim.
They allegedly punched the teen until he fell and then repeatedly kicked him, causing bruising, a concussion and post-traumatic stress disorder.
The teen assailants were identified when an assistant principal saw a video of the assault that had circulated at the school. Another classmate reported to the assistant principal that Oslund filmed the assault.
Oslund and his co-defendants, identified as CB and TI, were each charged. The prosecution alleges that Oslund encouraged CB and TI by agreeing to film the assault.
The majority held the Legislature intended the term “dangerous weapon” in both the penal code and code of criminal procedure to be taken together. And because a shoe “is ‘likely to cause … bodily injury when used as a weapon’” the trial court did not abuse its discretion when rejecting Oslund’s request to dismiss his criminal case.
