People v. Hutcheson
308 Mich. App. 10
Mich. Ct. App.2014Background
- Defendant Hutcheson pleaded guilty to attempted assault with intent to commit sexual penetration; he received 36 months’ probation.
- He later pleaded guilty to a probation violation and was resentenced to 29–60 months’ imprisonment.
- During sentencing for the reduced charge, defendant challenged OV 1 (10 points) and OV 2 (1 point) as to using bare hands, not a weapon.
- The trial court ruled hands could be weapons under OV 1, increasing points.
- Court held the hands were not weapons, OV 2 should be 0, and resentencing was required.
- Judgment reversed and remanded for resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether OV 1/OV 2 scoring was proper when only bare hands were used | Hutcheson contends hands are not weapons and OV 1/OV 2 mis-scored | Hutcheson argues no weapon used; scoring errors | OV 1 and OV 2 mis-scored; hands not weapons; resentencing required |
Key Cases Cited
- People v Lange, 251 Mich App 247 (2002) (definition of weapon; hands not a weapon when using bare hands during assault)
- People v Kay, 121 Mich App 438 (1982) (car/horse as weapons; ordinary hands not weapons for OV 1)
- People v Van Diver, 80 Mich App 352 (1977) (bare hands not a dangerous weapon in felonious assault context)
- People v Malkowski, 198 Mich App 610 (1993) (bare hands not weapon; part of offender, not distinct instrument)
- People v Edgett, 220 Mich App 686 (1996) (overruled on other grounds; weapon definition context)
- People v Hardy, 494 Mich 430 (2013) (standards for appellate review of sentencing guidelines; statutory interpretation)