People v. Hale , 96 Mich. App. 343 ( 1980 )

96 Mich. App. 343 (1980) 292 N.W.2d 204

PEOPLE
v.
HALE

Docket No. 45262.

Michigan Court of Appeals.

Decided March 18, 1980.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Richard S. Allen, Prosecuting Attorney (by Thomas C. Nelson, Assistant Attorney General, Prosecuting Attorneys Appellate Service), for the people.

Dreyer & McLaughlin, for the defendant on appeal.

Before: ALLEN, P.J., and V.J. BRENNAN and MacKENZIE, JJ.

PER CURIAM.

Defendant Richard Ora Hale was convicted by a Clare County Circuit Court jury of felonious assault, contrary to MCL 750.82; MSA 28.277, and resisting arrest, contrary to MCL 750.479; MSA 28.747. The charges stemmed from a fracas between defendant and Deputy Richard Miller of the Clare County Sheriff's Department. Defendant was sentenced to a prison term of 2-1/2 to 4 years on the felonious assault count and 15 months to 2 years on the resisting arrest count. Defendant appeals his convictions as of right, raising two issues.

Defendant first contends that his right not to be placed in double jeopardy was violated by his conviction of both felonious assault and resisting arrest. Defendant relies upon those decisions which have found a double jeopardy violation where, on the facts of the particular case, the trier of fact must have necessarily found the defendant guilty of one of the offenses in order to have found him guilty of the other. See People v Martin, 398 Mich. 303; 247 NW2d 303 (1976), People v Stewart (On Rehearing), 400 Mich. 540; 256 NW2d 31 (1977), People v Anderson, 83 Mich. App. 744; 269 NW2d 288 (1978).

This Court disagrees with defendant's contention that the jury must have found him guilty of either crime as a prerequisite to finding him guilty of the other crime. Felonious assault under MCL 750.82; MSA 28.277, and resisting arrest under MCL 750.479; MSA 28.747, are independent offenses. It is not necessary that a physical interference be shown in order to establish a resisting arrest charge. People v Kelley, 78 Mich. App. 769; 260 NW2d 923 (1977). Likewise, the proof of felonious assault is independent from the proof of resisting arrest. We thus conclude that defendant's argument is without merit.

Defendant also argues that the felonious assault charge should not have been submitted to the jury. The facts of the present case are that defendant repeatedly kicked the Clare County deputy in the groin area while the deputy was attempting to arrest defendant and pull him from his automobile. The information upon which defendant was tried indicated that the defendant used a dangerous weapon, to-wit: a shoe, in committing the assault upon the deputy.

In People v Buford, 69 Mich. App. 27; 244 NW2d 351 (1976), this Court held that a boot could be considered a dangerous weapon under the felonious assault statute. The Court relied upon the Michigan Supreme Court holding in People v Goolsby, 284 Mich. 375, 378; 279 N.W. 867 (1938), that an object, not dangerous per se, could be considered a dangerous weapon for purposes of the felonious assault statute if it is used in a dangerous manner. We thus conclude that a shoe as well as a boot may be considered a dangerous weapon under the statute since it is an object that may be used in a dangerous manner. It is for the fact finder to determine if the shoe was, in fact, employed in a dangerous manner. In the instant case, we are unable to conclude that the shoe was not a dangerous weapon as a matter of law.

Affirmed.