Often, my posts are prompted by questions I get from around the state. If the answer I give is potentially helpful to other people, then it will become a post sooner or later.
Today, I received a question that I've gotten before but this is the first time I've been satisfied with my own answer.
Those of you who have seen [my posts on UUW] know that I think "use" is more than just a threat. However, related case law suggests that you get "use" when you have a threat plus. In other words, you use the threat to effectuate some other, illegal purpose.
Assume an indictment that just alleges UUW and Menacing. Further, assume typical facts. If the defendant threatened the victim with a dangerous weapon in order to effectuate the unlawful purpose of menacing that same victim, is that enough to constitute a "threat plus"? I don't think so, and here's why.
I would frame the argument this way. First, I would start with the following premise: every threat to use a dangerous weapon equals menacing. I think that's a reasonable interpretation of the statutes involved. If it is true that UUW requires more than just a threat -- that it requires a threat that is made in order to further some other, unlawful end -- then we get into a very circular argument that threatening to use a dangerous weapon is use of that weapon if the purpose is to threaten use of that weapon (i.e., menace).
That would be fine if the COA's definition of use was "threat." If they defined it that way, then we lose. But if their definition is "threat plus" than there must be something more than scaring someone in order to scare them.
Ironically, if I'm correct that threatening to use a dangerous weapon is equal to menacing, but I'm wrong that something more is required to be guilty of UUW, then in some circumstances (depending on how the UUW is charged), the two counts would merge, under a State v. Blake kind of analysis (even if the elements don't match, if one crime is necessary to the commission of the other crime, the two counts merge).
They wouldn't merge if your client was convicted of UUW under the theory of "possession with intent to use" but would be if your client was convicted under the theory of "actual use of a dangerous weapon."