The Jaws That Bite, the Claws That Snatch

Louisiana Law Review Volume 62 | Number 1 Fall 2001 The Jaws That Bite, the Claws That Snatch Joseph K. Scott Repository Citation Joseph K. Scott, The Jaws That Bite, the Claws That Snatch, 62 La. L. Rev. (2001) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol62/iss1/17 This Note is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact . The Jaws That Bite, the Claws That Snatch* I. INTRODUCTION In State v. Michels,' the Louisiana Fifth Circuit Court of Appeal affirmed the defendant's conviction on a charge of aggravated oral sexual battery when the only "weapon" involved was Michels' pit bull terrier. In affirming the conviction, the court failed to address a longstanding line of Louisiana criminal cases holding that an inanimate object is needed to meet the dangerous weapon requirement within the meaning of Louisiana Revised Statutes 14:2(3).2 Although the court reached the right result in affirming the conviction, the lack of guidance regarding dogs as dangerous weapons in Louisiana provides no real value for future courts considering the problem. The scope of this note is limited to an examination of the facts and reasoning of the court in State v. Michels, the definition of dangerous weapon, and certain issues ofstatutory construction.3 It will also provide a survey ofthe national jurisprudence on the issue of dangerous weapons and dogs and a proposed solution to the oversight ofthe court inMichels. II. FACTS The victim was walking around the trailer park where she lived in Kenner on the evening of July 9, 1997, when she saw the defendant, whom she knew was also a resident of the trailer park. She accepted an offer from the defendant to join him for a beer in his trailer. After a few minutes inside the trailer, while both were drinking their beers, the defendant removed his pants and forced the victim's pants down. Michels then forced her to perform oral sex on him and raped her. At trial the victim stated that she fought Michels off by kicking and hitting him, but that he ignored her attacks and statements that she did not want to have sex with him. The victim also testified at trial that the defendant's pit bull was in the trailer during the incident and that it bared its teeth and growled at the victim while she was struggling with the defendant. She said she believed the defendant could control the dog's behavior and that he would command the dog to attack her if she continued to struggle. Based on the victim's testimony, the trial court found that the defendant was armed with a dangerous weapon at the time of the Copyright 2001, by LOUISIANA LAW REVIEW. * Title taken from "Jabberwocky," by Lewis Carol. 1. 726 So. 2d 449 (La. App. 5th Cir. 1999). 2. See generally State v. Calvin, 209 La. 257, 24 So. 2d 467 (1945). 3. The second issue addressed by the appellate court in State v. Michels, the defendant's claim of insufficiency of the bill of information, is beyond the scope of this article. 304 LOUISIANA LA W REVIEW (Vol. 62 encounter, and thus, defendant's conduct satisfied the elements of aggravated oral sexual battery within Louisiana Revised Statutes 14:43.4(3). 4 The appellate court, in discussing the claimed insufficiency ofthe bill ofinformation filed against the defendant, makes clear"[flrom our review of the proceedings in the record prior to trial, it was obvious that only the first three subsections of R.S. 14:43.4 could possibly applY in this case. All three deal specifically with force or threats of force." The defendant was convicted by jury trial of aggravated oral sexual battery. A motion in arrest ofjudgment or new trial was denied by the trial court, and the defendant was sentenced to five years at hard labor, suspended, with three years active probation.6 The appellate court affirmed the conviction and held that sufficient evidence was provided for the jury to find the defendant armed with a dangerous weapon.7 III. DISCUSSION A. Statutes and Cases on Weapon Definition 1. Statutory Definition Louisiana Revised Statutes 14:2 provides the definitions used throughout the criminal code. Subsection (3) states, "'Dangerous 4. La. R.S. 14:43.4(A) (Supp. 2001), aggravated oral sexual battery, subsections 1-6 provide that an oral sexual battery is aggravated: (1) When the victim resists the act to the utmost, but whose resistance is overcome by force. (2) When the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution. (3) When the victim is prevented from resisting the act because the offender is armed with a dangerous weapon. (4) When the victim is under the age of twelve years. Lack of knowledge of the victim's age shall not be a defense. (5) When two or more offenders participated in the act without the consent of the victim. (6) When the victim is prevented from resisting the act because the victim suffers from a physical or mental infirmity preventing such resistance. 5. Michels, 726 So. 2d at 452. 6. Defendant appealed to the Louisiana Fifth Circuit Court of Appeal which was granted on April 2, 1998. Two issues were presented on appeal: the claimed insufficiency of the bill of information and the claimed failure of the State to carry its burden of proof as to each element of the crime of aggravated oral sexual battery. On remand, the trial court was ordered to correct its verdict to show that the defendant had in fact been convicted of the lesser included charge of attempted aggravated oral sexual battery; a distinction that has no meaning for purposes of this article. Michels, 726 So. 2d at 453. 7. Michels, 726 So. 2d at 453. NOTES 2001] Weapon' includes any gas, liquid, or other substance or instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm."' The rule of interpretation for criminal statutes is expressed in Louisiana Revised Statutes 14:3, which states: The articles of this Code cannot be extended by analogy so as to create crimes not provided for herein; however, in order to promote justice and to effect the objects of the law, all of its provisions shall be given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision. In light of these two articles, two questions arise: how do they relate to each other, and how have they been treated in the jurisprudence. Professor Dale Bennet, who served as Louisiana State Law Institute Reporter for the 1942 revision of the Louisiana Criminal Code, explained that the code was to be read as a civilian document, not a mere compilation of common law rules.9 The articles of the code were based on the civilian model, with careful genera (...truncated)