IN THE INTEREST OF F.A.B., Minor Child, F.A.B., Minor Child, Appellant.

No. 4-086 / 03-1638

COURT OF APPEALS OF IOWA

2004 Iowa App. LEXIS 411

 
March 10, 2004, Filed

NOTICE:  [*1]  NO DECISION HAS BEEN MADE ON PUBLICATION OF THIS OPINION. THE OPINION IS SUBJECT TO MODIFICATION OR CORRECTION BY THE COURT AND IS NOT FINAL UNTIL THE TIME FOR REHEARING OR FURTHER REVIEW HAS PASSED. AN UNPUBLISHED OPINION OF THE COURT OF APPEALS MAY NOT BE CITED BY A COURT OR BY A PARTY IN ANY OTHER ACTION.

PRIOR HISTORY: Appeal from the Iowa District Court for Polk County, William A. Price, District Associate Judge. Child-appellant F.B. appeals the decision of the juvenile court denying his motion for judgment of acquittal following trial and adjudication of delinquency for carrying a dangerous weapon in violation of Iowa Code section 724.4(1) (2003).

DISPOSITION: Affirmed.

COUNSEL: Marla Suddreth, Bondurant, for appellant.
 
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, John Sarcone, County Attorney, and Mark Taylor, Assistant County Attorney, for appellee.

JUDGES: Considered by Sackett, C.J., and Vaitheswaran and Eisenhauer, JJ. Vaitheswaran, J., concurs; Sackett, C.J., dissents.

OPINIONBY: EISENHAUER

OPINION:
 
EISENHAUER, J.

F.B. appeals from the decision of the juvenile court denying his motion for judgment of acquittal following [*2]  trial and adjudication of delinquency for carrying a dangerous weapon in violation of Iowa Code section 724.4(1) (2003). On appeal, F.B. argues the item he was carrying, a balisong, is not a dangerous weapon under section 724.4(1). We affirm.
 
I. Background Facts and Proceedings. Although the juvenile court did not make written findings of fact, it could have found the following facts. At approximately 3:30 a.m. on June 11, 2003, Officer Kirk Bagby initiated a traffic stop of F.B.'s car. F.B. was not wearing a seat belt, and Officer Bagby recognized F.B. and his car from past traffic stops in which F.B. was cited for driving without a license. After a computer check revealed he did not have a driver's license, Officer Bagby asked F.B. to step out of his car. F.B. complied, and Officer Bagby conducted a pat-down search for weapons. Officer Bagby discovered a silver balisong, or butterfly knife, with a blade measuring four and one-half inches. n1 Officer Bagby seized the balisong. n2 F.B. was charged in a delinquency petition with carrying a dangerous weapon, in violation of section 724.4(1).

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n1 The four-and-one-half-inch measurement includes that part of the blade which extends into the handle. The sharp portion of the knife measured three and one-half inches. [*3] 
 


n2 Officer Bagby testified Des Moines City Code includes balisong in its restrictions against carrying concealed weapons.
 

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

II. Scope of Review. We review juvenile proceedings de novo. In the Interest of J.D.F., 553 N.W.2d 585, 587 (Iowa 1996). Both questions of fact and law are subject to review. Id. We give weight to the fact-findings of the juvenile court, but we are not bound by them. Id.

III. Analysis. Iowa Code section 702.7 provides:

A "dangerous weapon" is any instrument or device designed primarily for use in inflicting death or injury upon a human being or animal, and which is capable of inflicting death upon a human being when used in the manner for which it was designed. Additionally, any instrument or device of any sort whatsoever which is actually used in such a manner as to indicate that the defendant intends to inflict death or serious injury upon the other, and which, when so used, is capable of inflicting death upon a human being, is a dangerous weapon. Dangerous weapons include, but are not limited to, any offensive weapon, [*4]  pistol, revolver, or other firearm, dagger, razor, stiletto, switchblade knife, or knife having a blade exceeding five inches in length.
 
The juvenile court concluded the balisong is a dangerous weapon within the meaning of section 702.7 because it is an instrument primarily for use in inflicting death or injury upon a human being or animal.

There was testimony at trial from Angelito Barongan, owner of a martial arts school, who had twenty years of experience using the balisong. Barongan testified the balisong was developed in the Philippines as a weapon for fighting and used historically by farmers to defend themselves. He further testified the balisong is especially suited to fighting because it has swinging handles which can suddenly expose a blade and surprise opponents, or it can create a block to deflect an opponent's attacks. Barongan testified the balisong is used primarily today for street fighting.

F.B. argues the balisong is a knife and, under the plain language of section 724.4(3), it must have a blade at least five inches long to qualify as a dangerous weapon. However, this interpretation ignores the "include, but are not limited to" language in the statute.  [*5]  Iowa Code 702.7 (emphasis added). The items listed in the last sentence of section 702.7 are per se dangerous weapons. State v. Durham, 323 N.W.2d 243, 245 (Iowa 1982). Whether a knife with a shorter blade qualifies as a dangerous weapon depends on a showing of whether it is designed primarily for use in inflicting death or injury upon a human being or animal, and if it is capable of inflicting death to a human being when used as designed. This is the only way to give meaningful effect to the length differential.

Whether a lesser knife is a dangerous weapon is a matter of proof. Here, the State proved to the satisfaction of the juvenile court, and to us on our de novo review, that a balisong is designed primarily for use as a fighting weapon. It was not designed to open a letter, clean fingernails, pare an apple, or for any other benign purpose for which a knife with a less than five-inch blade may be designed. Furthermore, when used as designed, the balisong is capable of inflicting death. Accordingly, the district court properly held the balisong is a dangerous weapon.
 
AFFIRMED.

Vaitheswaran, J., concurs; Sackett, C.J., dissents.  [*6] 

DISSENTBY: SACKETT

DISSENT: SACKETT, C. J., (dissenting)
 
I respectfully dissent. I would conclude the balisong in this case is not a dangerous weapon as defined by Iowa law. The basic rules of statutory construction compel this conclusion.

As the majority states, the balisong is a knife. n3 The majority reasons that F.B.'s argument claiming the knife must be five inches long to qualify as a dangerous weapon ignores the "includes, but [is] not limited to" language of Iowa Code section 702.7. I agree that section 702.7 is not an exhaustive list of dangerous weapons. In the case where a knife is the weapon at issue, however, I believe it must meet the minimum blade-length requirements of sections 702.7 and 724.4(3) to qualify as a dangerous weapon.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n3 As inspection of the weapon shows, a balisong can inflict injury or death because it has a knife blade. Although an experienced balisong user will be able to move that blade quickly, the movable nature of the component parts of the balisong is not what makes it inherently dangerous. What makes it inherently dangerous is its blade. An experienced knife handler can make traditional knife blades move quickly and unexpectedly, yet knives qualify as "dangerous weapons" only if they exceed certain length requirements. I see no difference between the threat posed by a traditional knife and that posed by a knife with movable handles.
 

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [*7] 

Three rules of statutory interpretation compel this conclusion. First, specific statutes prevail over general statutes when the two are in conflict. See Kelly v. Judicial Dep't, 525 N.W.2d 409, 411 (Iowa 1994). If sections 702.7 and 724.4(1) are interpreted to include knives with blades shorter than five inches, they are in conflict with section 724.4(3). According to the majority, any knife of any blade-length can qualify as a dangerous weapon under section 724.4(1) if it is proven to be designed primarily to cause death or injury. This interpretation, however, creates an absurd result. Under the majority's analysis, F.B. is guilty of an aggravated misdemeanor for carrying a knife with a blade length of fewer than five inches. See Iowa Code 724.4(1). Yet if F.B. had been carrying a knife with a blade length greater than five and up to eight inches, he would be guilty only of a lesser charge, a serious misdemeanor. See Iowa Code 724.4(3)(b). Furthermore, the legislature clearly distinguishes the crimes of carrying a concealed knife and carrying such a knife for use in the commission of a crime. Under [*8]  section 724.4(3)(b) carrying a concealed knife is a serious misdemeanor if the blade is between five and eight inches. Carrying such a knife and using it in the commission of a crime is a greater offense, an aggravated misdemeanor under section 724.4(2). There is no evidence F.B. intended to or did use the balisong in the commission of a crime. Yet under the majority's analysis, F.B. is guilty of the same level of offense for carrying the knife as he would be if he had used it to commit a crime. The punitive scheme of section 724.4 is to increase the penalty with the use of the knife and the length of its blade. The majority's analysis defeats this scheme. Given these clear conflicts, the specific language of section 724.4(3) should prevail over the general language of sections 702.7 and 724.4(1).

A second well-founded principle of statutory construction applicable here is expressio unius est exclusio alterius, or "the expression of one thing is the exclusion of another." Williams v. State, 421 N.W.2d 890, 894 (Iowa 1988). Both sections 702.7 and 724.4 expressly include as dangerous weapons knives with blades measuring more than five inches. No mention [*9]  is made of knives with blades of shorter length. Under this principle they should be deemed excluded.

Third, we have an obligation to construe ambiguities in a statute in favor of the juvenile accused of a delinquent act. See State v. Gillespie, 530 N.W.2d 446, 449 (Iowa 1995). Any lack of clarity by the legislature on this issue should be resolved to F.B.'s advantage.

As the knife found on F.B. contained a blade measuring fewer than five inches, I would reverse F.B.'s adjudication.