PER CURIAM.
Defendant appeals as of right his jury trial convictions of felonious assault, MCL 750.82, and carrying a dangerous weapon with unlawful intent, MCL 750.226. Because the prosecution failed to present sufficient evidence to support defendant's conviction of carrying a dangerous weapon with unlawful intent for the reason that it did not present evidence that the knife in question had a blade of at least three inches in length, we vacate that conviction. Because defendant has not established any plain error with regard to his argument concerning prosecutorial misconduct, we affirm defendant's felonious-assault conviction.
Defendant's convictions arise from an incident that took place at the Gibby's Pub in Bridgeport on the evening of December 3, 2006. At trial, the owner of the bar testified that a bartender reported having problems with defendant, in response to which the owner asked defendant to leave the premises. Instead of leaving, defendant cursed and produced a knife in its open position, meaning blade out. The owner yelled that defendant had a knife, struggled with him, and commanded defendant to drop the knife. After others joined the owner in the fracas, defendant was finally disarmed and subdued.
At the close of the prosecution's proofs, defense counsel asked that the charge of carrying a dangerous weapon with unlawful intent be dismissed, on the ground that the prosecution had failed to prove that the knife in question had a blade of at least three inches in length. The prosecutor argued that any dangerous weapon satisfied the requirements of the statute. The trial court adopted the prosecutor's position, explaining, "I believe that the evidence is sufficient to show that it is a dangerous weapon at this point in time, and the jury can determine whether or not what his intention was in terms of carrying it."
The trial court instructed the jury that, among the elements necessary to find defendant guilty of carrying a dangerous weapon with unlawful intent, the prosecution had to prove that defendant was "armed with a knife" and "intended to use this weapon illegally against someone else." The trial court further stated:
The trial court additionally instructed the jury to decide the facts solely on the basis of the evidence and that the statements of counsel were not evidence. The jury found defendant guilty as charged.
On appeal, defendant argues that the trial court erred by denying his motion to dismiss the charge of carrying a dangerous weapon with unlawful intent because the prosecution presented absolutely no evidence with regard to the length of the knife, contrary to the statutory language, which requires that a knife have a blade of at least three inches in length in order to qualify as a dangerous weapon. The prosecution responds that the trial court correctly focused on the potential dangerousness of the knife, rather than the length of its blade, and that, in any event, the knife was admitted into evidence, the jury saw it, and one witness testified that it was roughly the size of a hand.
When reviewing a trial court's decision on a motion for a directed verdict, this Court reviews the record de novo to determine whether the evidence, viewed in the light most favorable to the prosecution, could persuade a rational trier of fact that the essential elements of the crime charged were proved beyond a reasonable doubt. People v. Mayhew, 236 Mich.App. 112, 124-125, 600 N.W.2d 370 (1999). Statutory interpretation presents a question of law, calling for review de novo. People v. Denio, 454 Mich. 691, 698-699, 564 N.W.2d 13 (1997).
Defendant was convicted of violating MCL 750.226, which provides, in pertinent part:
In this case, the knife in question was admitted into evidence and apparently displayed to the jury, but was not given to the jurors to inspect. There was no testimony, discussion, or argument presented
In 1945, our Supreme Court held that it was error to apply the three-inch specification found in the version of the statute prohibiting carrying a dangerous weapon then in effect to determine the dangerousness of a knife for purposes of the concealed-weapons statute then in effect. People v. Vaines, 310 Mich. 500, 502-504, 17 N.W.2d 729 (1945). The Court, further construing the concealed-weapons statute, noted that many cutting tools are manufactured and used for peaceful purposes and opined that "[w]hether or not such articles are dangerous weapons . . . would depend upon the use which the carrier made of them." Id. at 505, 17 N.W.2d 729. The Court thus called for distinguishing between items "designed for the purpose of bodily assault or defense," which are thus "dangerous weapons per se," and items that "become dangerous weapons only when they are used or carried for use as weapons." Id. The Court concluded that "[t]he legislature certainly did not intend to include as a dangerous weapon the ordinary type of jackknife commonly carried by many people, unless there was evidence establishing that it was used, or was carried for the purpose of use, as a weapon." Id. at 506, 17 N.W.2d 729.
In People v. Brown, 406 Mich. 215, 222, 277 N.W.2d 155 (1979), the Supreme Court reiterated that
Because they construed the concealed-weapons statute, MCL 750.227, not the statute prohibiting carrying a dangerous weapon with unlawful intent, MCL 750.226, or an earlier version thereof, Brown and Vaines are instructive, but not dispositive.
But in Acrey v. Dep't of Corrections, 152 Mich.App. 554, 558, 394 N.W.2d 415 (1986), this Court, quoting the trial court's decision that cited Brown, 406 Mich. at 222-223, 277 N.W.2d 155, stated, "`To support the weapon element of either of these charges requires finding that an article or instrument not included in the statute's list of per se weapons must have been used or carried for use as a weapon or for purposes of assault or defense.'" Acrey thus stated that, for both MCL 750.226 and MCL 750.227, the statutorily specified weapons were dangerous per se and that any other potentially dangerous item carried for assaultive or defensive use likewise satisfied those respective statutes. But Brown, in fact, was not construing MCL 750.226, and so Acrey's statement that Brown's dictates covered it was overreaching.
Brown quoted MCL 750.227 to present its list of prohibited weapons: "`dagger, dirk, stiletto or other dangerous weapon except hunting knives adapted and carried as such. . . .'" Brown, 406 Mich. at 219, 277 N.W.2d 155. Brown then quoted approvingly from Vaines in listing several examples, beyond those set forth in MCL 750.227, of instruments "`generally recognized'" as dangerous weapons per se:
In People v. Smith, 393 Mich. 432, 436, 225 N.W.2d 165 (1975), our Supreme Court refined the list by applying the principle of ejusdem generis,
Accordingly, the phrase "or other dangerous weapon except hunting knives adapted and carried as such" after a list of stabbing weapons is limited to only additional stabbing weapons. Id., citing MCL 750.227.
We are therefore of the opinion that because, as Smith noted, MCL 750.226 expressly requires proof of intent to use a weapon unlawfully, Smith, 393 Mich. at 437, 225 N.W.2d 165, but MCL 750.227 does not, their respective lists of weapons should be interpreted differently.
Because MCL 750.227 presents an incomplete list of instruments generally recognized as dangerous weapons per se, along with the etcetera "any other dangerous weapon," some inquiry into intent is needed to determine whether an instrument that is not a dangerous weapon per se nonetheless constitutes a dangerous weapon for purposes of that statute. See Brown, 406 Mich. at 222-223, 277 N.W.2d 155; Acrey, 152 Mich.App. at 558, 394 N.W.2d 415. Concealed carrying of weapons that are dangerous per se, then, is prohibited without regard to intent, while concealed carrying of other weapons is prohibited only when carried with assaultive or defensive intent.
In contrast, MCL 750.226 begins with an unlawful intent element, followed by a list of what are dangerous weapons per se, and thus, no separate consideration of intent should inform the general provision "any other dangerous or deadly weapon or instrument. . . ." Because MCL 750.227 sets forth dangerous weapons, in specific and then general terms, but no intent element, a person's intent in possessing a potential weapon that is not dangerous per se is a factor in determining whether that object qualifies for purposes of that statute. But because MCL 750.226 expressly targets the combination of an unlawful intent with its list of what are dangerous weapons per se, the carrier's intent is not a factor in determining whether an instrument carried is covered by that statute. For purposes of the latter, then, the principle of ejusdem generis suggests that the phrase "any other dangerous or deadly weapon or instrument," following as it does a list of varied weapons that have in common that they are all dangerous per se, includes only other dangerous weapons per se. The specification of knives with blades more than three inches in length, then, indicates that they are included as dangerous weapons per se, but knives with shorter blades are not included because they are not dangerous weapons per se.
MCL 750.227 makes an exception for a "hunting knife adapted and carried as such" in apparent recognition that hunting knives are dangerous per se but nonetheless manufactured and normally used for purposes other than aggression against humans.
The prosecution, citing Vaines, argues that the length of a knife's blade is not dispositive of the question of its dangerousness. The prosecution, in fact, seems to suggest that the length of the blade is of no consequence. But when construing a statute, a court should presume that every word has some meaning. People v. Seiders, 262 Mich.App. 702, 705, 686 N.W.2d 821 (2004). Accordingly, a construction rendering some part nugatory or surplusage should be avoided. Id. Further, when a specific statutory provision conflicts with a related general one, the specific one controls. People v. Houston, 237 Mich.App. 707, 714, 604 N.W.2d 706 (1999). Hence, the statute's specification of three-inch knife blades must be given force. But that force is wholly lacking if the statute criminalizes the carrying of any knife when carried for unlawful reasons. To put it another way, reading the statute as targeting any knife carried for an unlawful purpose would render the three-inch specification surplusage or nugatory. See Seiders, 262 Mich.App. at 705, 686 N.W.2d 821.
For these reasons, we hold that in prosecutions under MCL 750.226 involving a knife, an element of the crime is that the knife's blade be more than three inches in length. The lack of such proof in this instance invalidates the conviction. Acquittal, not retrial, is the proper remedy, as dictated by double jeopardy principles. People v. Thompson, 424 Mich. 118, 130, 379 N.W.2d 49 (1985).
Defendant also argued that the prosecutor committed misconduct and denied defendant a fair trial by going outside the scope of the evidence and arguing matters not on record about the knife. Defendant did not object to the prosecutor's comments during trial; thus, his argument on appeal is not preserved. A defendant pressing an unpreserved claim of error must show a plain error that affected substantial rights, and the reviewing court should reverse only when the defendant is actually innocent or the error seriously affected the fairness, integrity, or public reputation of judicial proceedings. People v. Carines, 460 Mich. 750, 763, 597 N.W.2d 130 (1999).
In closing argument, the prosecutor stated:
Defendant specifically makes issue of the prosecutor's comments admonishing the jury that the knife was too sharp, or
When defendant took the stand in his own defense, the prosecutor elicited from him that he had owned the knife for about three months, that he carried it for such purposes as cutting boxes open, and that he typically cut open about 10 boxes a day. The exchange continued as follows:
This exchange thus did put into evidence the degree of wear the knife displayed. Further, eliciting that the knife displayed no signs of wear could reasonably be taken as eliciting that the knife appeared sharp. Although the best way to ascertain a knife's sharpness is to try to cut with it, sharpness may also be adjudged by feeling the blade or, even if to a lesser extent, by visual observation—the latter of which was available in court to defendant, and apparently also to the jury. The prosecutorial argument with which defendant takes issue, then, was sufficiently reflective of matters in evidence as to not constitute plain error. See Schutte, 240 Mich.App. at 721, 613 N.W.2d 370.
Moreover, to the extent that the prosecutor may have stepped into argument beyond what the evidence properly allowed, the trial court's instructions that the jury decide the case solely on the basis of the evidence and that the statements of counsel were not evidence should have cured any prejudice. "It is well established that jurors are presumed to follow their instructions." People v. Graves, 458 Mich. 476, 486, 581 N.W.2d 229 (1998). For these reasons, we reject this claim of error.
In conclusion, we hold that by failing to present evidence that the knife in question had a blade of at least three inches in length, the prosecution did not present sufficient evidence to support defendant's conviction of carrying a dangerous weapon
Vacated in part, affirmed in part, and remanded for correction of the judgment of sentence with respect to the vacated conviction. We do not retain jurisdiction.