Felonious Assault in a Michigan Domestic Case (MCL 750.82)

Felonious assault is Michigan's name for assault with a dangerous weapon. Under MCL 750.82(1), a person who assaults another person with a gun, revolver, pistol, knife, iron bar, club, brass knuckles, or other dangerous weapon, without intending to commit murder or to inflict great bodily harm less than murder, is guilty of a felony punishable by up to 4 years in prison, a fine of up to $2,000, or both.^[1]

In a domestic situation the charge can arise when an argument involves an object: a knife picked up in the kitchen, a firearm displayed, something swung or thrown. This page explains the elements, what makes an object a weapon, the maximum sentence, and how the charge sits beside or replaces a domestic assault charge under MCL 750.81.

What does the prosecutor have to prove?

The model criminal jury instruction for felonious assault, M Crim JI 17.9, has four elements.^[3]

1. The defendant either attempted to commit a battery on the complainant or did an act that would cause a reasonable person to fear or apprehend an immediate battery.^[3]
2. The defendant intended either to injure the complainant or to make the complainant reasonably fear an immediate battery.^[3]
3. At the time, the defendant had the ability to commit a battery, appeared to have the ability, or thought he or she had the ability.^[3]
4. The defendant committed the assault with a dangerous weapon.^[3]

Physical contact is not on that list, and neither is injury.^[3] The first three elements track the ordinary definition of an assault, which is covered in Assault vs. battery in Michigan. The model instructions also state that all assaults are specific-intent crimes and that an assault cannot happen by accident.^[6]

What counts as a dangerous weapon?

The statute names several: a gun, revolver, pistol, knife, iron bar, club and brass knuckles. It then adds "or other dangerous weapon."^[1]

For objects that are not on the list, the jury decides. The instruction tells jurors that some objects "are designed for peaceful purposes but may be used as dangerous weapons," and that "the way an object is used or intended to be used in an assault determines whether or not it is a dangerous weapon." If the defendant threatened to use an object, or used it, in a way that was likely to cause serious physical injury or death, it was a dangerous weapon.^[2]

Two practical points follow. First, the question is about use, not about what the object is called. Second, a threat to use the object can be enough; the instruction covers an object the defendant "threatened to use" as well as one actually used.^[2]

What is the penalty?

Situation	Maximum prison	Maximum fine
Felonious assault, MCL 750.82(1)	4 years	$2,000[1]
Victim is a health professional or medical volunteer on duty (not a patient receiving treatment from the victim)	4 years	$4,000[7]
Committed in a weapon free school zone, MCL 750.82(2)	4 years	$6,000, and community service of up to 150 hours may be ordered[7]

These are statutory maximums. Under the sentencing guidelines, felonious assault is a Class F crime against a person.^[8] A prior felony record can raise the maximum: with three or more prior felony convictions, a person convicted of a felony punishable by less than 5 years, such as felonious assault, may be sentenced to a maximum of up to 15 years.^[9] How the guidelines produce a recommended range is explained in Felony sentencing guidelines.

How it fits with a domestic assault charge

MCL 750.82 does not have a domestic version. It applies to an assault on "another person," whoever that is.^[1] In a case between spouses, partners, co-parents or household members, the weapon allegation changes which statute applies:

Charge	What sets it apart	Level and maximum
Domestic assault, MCL 750.81(2)	An assault or assault and battery on a person in one of four relationships	93 days, $500 for a first offense[10]
Aggravated domestic assault, MCL 750.81a(2)	No weapon, but a serious or aggravated injury	1 year, $1,000[11]
Felonious assault, MCL 750.82(1)	A dangerous weapon; no injury needed	4 years, $2,000[1][3]
Assault with intent to do great bodily harm, or by strangulation, MCL 750.84	Intent to do great bodily harm, or strangulation or suffocation	10 years, $5,000[12]

Aggravated domestic assault is defined as an assault "without a weapon," so an assault alleged to involve a dangerous weapon falls under the felonious assault statute instead.^[13] The domestic assault instruction is written so that a jury may be told it can consider domestic assault as a less serious crime when a greater offense is charged.^[14] A lesser-offense instruction is proper when the greater offense requires the jury to find a disputed factual element that is not part of the lesser offense and a rational view of the evidence supports it.^[15]

Can it be combined with other assault charges?

That depends on the other charge. In People v Gardner (2024), the Michigan Supreme Court held that a defendant could not be convicted of both assault with intent to murder and felonious assault for the same assault, because felonious assault is defined as acting without intent to commit murder.^[16] In People v McKewen (2024), by contrast, the court relied on MCL 750.84(3), which permits other charges arising from the same conduct, in a case with convictions for both assault with intent to do great bodily harm and felonious assault.^[17]

Self-defense and the display of a weapon

Self-defense applies to this charge as it does to other assaults. A person who acts in lawful self-defense is not guilty, and once there is some evidence of self-defense the prosecutor has to disprove it beyond a reasonable doubt.^[18][19] In People v Ogilvie, the Court of Appeals treated pointing a loaded gun without firing it as a threat to use deadly force rather than the use of deadly force, so the jury should have been instructed on the rules for nondeadly force.^[20] The full rules are in Self-defense law in Michigan domestic violence cases.

Court process, deadlines and what a conviction carries

• Court. The case starts in district court and, after bindover, moves to circuit court for trial and sentencing.^[21] See the felony case timeline.
• Time limit to charge. Felonious assault is not among the offenses given a 10-year limitations period, so the 6-year general period applies.^[22][23] See Statute of limitations.
• No domestic violence deferral. MCL 769.4a covers only violations of MCL 750.81 and 750.81a.^[5]
• Prior for later charges. A conviction under MCL 750.82 against a person in a domestic relationship is a qualifying prior for second- and third-offense domestic assault and for repeat aggravated domestic assault.^[4][24]
• Youthful trainee status. A court must revoke Holmes Youthful Trainee Act status if the trainee pleads guilty to or is convicted of felonious assault during the assignment.^[25]
• Firearms. A felony conviction bars firearm possession in Michigan for at least 3 years after the sentence is fully completed; for a "specified felony," defined to include a felony with an element of the use, attempted use or threatened use of physical force, the period is 5 years and a circuit court restoration order is needed as well.^[26][27][28] Federal law separately bars firearm possession by a person convicted of a crime punishable by imprisonment for more than one year.^[29] See Restoring gun rights.
• Setting the conviction aside. Felonious assault is an "assaultive crime," and a person may have no more than 2 assaultive-crime convictions set aside in a lifetime.^[30][31][32] Assaultive crimes are excluded from automatic set-aside.^[33]

What people get wrong

"It has to be a gun or a knife." The statute ends its list with "other dangerous weapon," and the jury instruction tells jurors to look at how an object was used or threatened to be used.^[1][2]

"Nobody was hurt, so it is only a misdemeanor." Injury is not an element, and neither is contact.^[3]

"It is a domestic charge, so the deferral applies." The deferral statute names only MCL 750.81 and 750.81a.^[5] Whether a case is charged or resolved under one of those sections is a matter for the prosecutor, who has the authority to decide whether to prosecute and what charges to file.^[34][35] See Plea bargains in domestic violence cases.