In criminal cases, judges often rule whether an item used by a person charged with a crime is a “dangerous weapon” or a “deadly weapon”. Today we discuss two cases: one involving a victim kicked with tennis shoes and the other, a victim threatened with a key.
DRUG DEAL GONE BAD
Paul Swallow, egged on by his wife who called him a coward, decided to get even with a man who had failed to deliver $10 of methamphetamine, so Swallow did what any dissatisfied meth buyer would do: knocked the victim to the ground. Then, while wearing tennis shoes, he kicked the victim while he was down. Swallow landed several vicious kicks to the victim’s torso and head until he was unconscious.
But that wasn’t enough. Swallow then kicked the victim in the head with full force “as though he were kicking a football’ as the Court wrote. Swallow wasn’t done. He then stomped on the victim’s head with the bottom of his shoe, crushing the victim’s head into the pavement. The victim now suffers permanent cognitive impairment.
ASSAULT WITH A DANGEROUS WEAPON
Swallow plead guilty to assault with a dangerous weapon, then challenged his conviction, claiming his tennis shoes did not constitute a “dangerous weapon… an instrument capable of inflicting death or bodily injury” under federal guidelines.
FEDERAL COURT ANALYSIS
The Ninth Circuit Court of Appeals looked at similar cases noting that instruments that are not dangerous per se can be dangerous depending on how they are used, such as walking sticks, leather straps, work boots, and even shoes. In one case the defendant beat her two-year-old son with a shoe held in her hand. She was convicted. A dangerous weapon cannot be committed by using one’s bare feet/hands alone.
The Ninth Circuit had no problem upholding the trial court conviction ruling that the way Swallow used his shoes – kicking and stomping, constituted a dangerous weapon.
SIMILAR CALIFORNIA CASE
In the case of People vs. Brian Keith Koback, filed last July, the California Fourth Appellate District Court of Appeal concluded the defendant was guilty of assault with a deadly weapon for using a set of car keys in a threatening manner. While keys are not inherently a deadly weapon, if yielded as a makeshift weapon, a key is capable of puncturing skin and causing serious bodily injury, as the Court wrote.
The Court of Appeal noted that other deadly weapons have been: dirks, black jacks, screw drivers, a sharp pencil held to a victim’s neck, a victim smothered with a pillow, poking a classmate in the back with the tip of a pocket knife, a golf club, a roll of coins, batteries, a broomstick, a fingernail file, a rock, and finally my favorite, a butter knife “with rounded end and slight serrations on one side” – are all capable of being used as a deadly weapon.
Actually, my very favorite is a disgruntled student who was convicted of assault with a deadly weapon for hiding a metal pin inside an apple and giving it to his (favorite) teacher. Now that is uncalled for.
Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. Jim’s practice areas include: real estate, development, construction, business, HOA’s, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at firstname.lastname@example.org or www.portersimon.com. Like us on Facebook. ©2020
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