[RedBean]

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I think the key is that, by statute a dangerous weapon are instrumentalities which in the manner in which they are used are likely to create great bodily injury (LA ST 14:2(3))

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A competent defense attorney would argue that the prescence of the tennis shoes did not significantly escalate the damage caused from the kicks, for example, kicking a person in the head with and then without shoes.

In short, the tennis shoes themselves do not attach a more significant degree of fatality on the attack than if they were not present.

For example, kicking someone in the head while they are down with bare feet does not meet the LA code standards for aggravated battery, and it could be argued that the introduction of tennis shoes does not significantly increase the lethality of the kicks.

Similar to punching someone in the face while wearing a common ring does not attach significat lethality to warrant an aggravated assault, but wearing brass knuckles would.

In contrast, hitting someone across the head with a baseball bat as opposed to hitting them with a closed fist is a significant difference in the degree of potential lethality. The baseball bat easily attaches a more significant risk of harm, and can easily be considered a deadly weapon.

A jury could very well find that tennis shoes in this case were used and inteded to be deadly weapons. I would disagree, but that is certainly within the scope of their potential findings based on the wording of the law.

However, as I said, I find it problematic that they were not allowed to consider a lesser charge of second degree battery, in the case they found the defendant guilty of battery, but couldn't find the tennis shoes to be considered deadly weapons.

Instead of given both choices, they were presented with limited options. Either find guilt with deadly weapon, or not guilty.

The difference is significant, all other things considered the same.

1. Second degree battery is a max of 5 years.
2. Second degree aggravated battery (requires use of deadly weapon) is a max of 15 years.

The DA should have sought #1, or at the very least, the jury be instructed to have the option to choose between the two, instead of just #2 or not guilty.