What is use of a weapon?
by: Ryan • April 26, 2011 • no comments
For a more thorough discussion of this issue, go here. The question is this: is threatening to use a weapon "use" of that weapon for the purposes of UUW? It is enough for robbery, if the threat is instrumental to a different end than a mere threat, such as theft.
The link above explains why this is an issue the defendant needs to raise as a special jury instruction - an instruction that defines "use" - and is almost useless as a motion for judgment of acquittal.
Today, the COA issued a defense-favorable opinion on upward departing the sentence for UUW based on the defendant's use of a weapon. In its ruling the COA wrote:
"As described above, the only evidence supporting the inference that defendant intended to unlawfully use the knife, which is an element of the charged offense, was the evidence that he brandished it and made a threat. We cannot say on such a record that defendant's conduct evincing the intent aspect of unlawful use of a weapon was so different from the usual criminal conduct captured by the intent aspect of the offense that it could support the imposition of a departure sentence." [emphasis in original]
Does this paragraph hurt or help the defendant's argument that a mere threat is not "use" for the purposes of UUW?
What do you think?
