                 This opinion is subject to revision before final
                      publication in the Pacific Reporter

                                 2014 UT 47

                                    IN THE

       S UPREME C OURT OF THE S TATE OF U TAH
                            SALT LAKE CITY
                              Respondent,
                                   v.
                           WADE JOHN MILES,
                               Petitioner.

                              No. 20130475
                         Filed October 24, 2014

            On Certiorari to the Utah Court of Appeals

                      Third District, Salt Lake
                   The Honorable Robert P. Faust
                          No. 111907362

                                 Attorneys:
               Scott A. Fisher, Padma Veeru-Collings,
                   Salt Lake City, for respondent
            Joan C. Watt, Allyson Barker, Salt Lake City,
                           for petitioner

   JUSTICE DURHAM authored the opinion of the Court, in which
  ASSOCIATE CHIEF JUSTICE NEHRING , and JUSTICE PARRISH joined.
                 JUSTICE LEE filed a dissent, in which
                   CHIEF JUSTICE DURRANT joined.

JUSTICE DURHAM , opinion of the Court:
                           INTRODUCTION
   ¶1 Wade John Miles was convicted under Utah Code section
76-10-503 (2011)1 for having a pocketknife among his personal

  1
     This statute has been substantially amended since Mr. Miles’s
conviction. See 2014 Utah Laws 2255–58(amending, among other
provisions, UTAH CODE §§ 76-10-501, -503). Our analysis, however,
is governed by the 2011 version of the statute because the 2011
version was in place at the time of Mr. Miles’s alleged criminal
conduct. See State v. Clark, 2011 UT 23, ¶ 14, 251 P.3d 829 (noting that
a party’s “primary rights and duties are dictated by the law in effect
at the time of . . . the conduct giving rise to a criminal charge”). We
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                      SALT LAKE CITY v. MILES
                       Opinion of the Court

belongings, which he carried with him in a shopping cart. Section 76-
10-503 of the Utah Code criminalizes, among other things,
possession of a “dangerous weapon” by a restricted person. The
term “dangerous weapon,” in turn, is defined in subsection 76-10-
501(6). Mr. Miles appealed his conviction, arguing that his
pocketknife did not qualify as a dangerous weapon under that
statutory definition. He first argued that the statute permits
consideration only of a knife’s actual use, not its intended use. He
then argued that because Salt Lake City failed to proffer evidence
that the knife was actually used, the evidence presented at trial was
insufficient to establish that his knife was a “dangerous weapon.”
The court of appeals rejected Mr. Miles’s interpretation of the statute
and held that an object’s intended use may always be considered in
determining whether the object is a “dangerous weapon” as defined
by statute. Salt Lake City v. Miles, 2013 UT App 77, ¶ 13, 299 P.3d
1163. Under this reading, the court held that the evidence presented
at trial, including, importantly, Mr. Miles’s verbal threats to kill
someone with a knife, was sufficient to establish that the knife in
Mr. Miles’s shopping cart was a dangerous weapon. Id. ¶ 19.
    ¶2 We granted certiorari to determine two issues: first, whether
the court of appeals correctly interpreted the statutory definition of
“dangerous weapon” in subsection 76-10-501(6); and second,
whether the jury had sufficient evidence to reasonably conclude that
Mr. Miles’s knife qualified as a “dangerous weapon” under that
statute. We disagree with the court of appeals that the statute
permits consideration of an item’s intended use if the item is “a
knife, or another item . . . not commonly known as a dangerous
weapon.” UTAH CODE § 76-10-501(6)(b). For those objects, we hold
that the statute permits consideration only of how the object was
actually used, as outlined by the factors in subsection 76-10-501(6)(b).
Based upon this interpretation of the statute, we hold that the
evidence presented at trial was insufficient to establish that the
pocketknife lying in Mr. Miles’s shopping cart was a dangerous
weapon as defined by statute.
                          BACKGROUND
    ¶3 On the evening of October 4, 2011, Mr. Miles, who was
homeless, attempted to board a light rail train in downtown Salt
Lake City. The train operator prevented Mr. Miles from entering the
train because Mr. Miles was attempting to board with a shopping
cart containing his personal possessions. The train operator also
  1
    (...continued)
accordingly reference the 2011 version throughout this opinion.

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                        Opinion of the Court

believed Mr. Miles was intoxicated, so he radioed for assistance from
the field supervisor on patrol that night. The supervisor arrived soon
thereafter and found Mr. Miles sitting on a decorative rock on the
train platform. Mr. Miles’s shopping cart was located beside him.
The supervisor asked Mr. Miles to move with him to the sidewalk
for safety reasons, but Mr. Miles refused and became “vulgar and
belligerent” toward the supervisor. The supervisor then informed
Mr. Miles that if he did not calm down, the supervisor would need
to call the police for help in removing Mr. Miles from the platform.
In response, Mr. Miles, still sitting on the rock, made a statement
about a knife and a gun, which was the subject of some conflicting
evidence at trial. Shortly after the incident, the supervisor wrote in
his witness statement that Mr. Miles said “if” he had a gun or a knife
he would “shoot and kill” the supervisor if the supervisor did not
get away from Mr. Miles. At trial, however, the supervisor testified
that Mr. Miles said he did have a knife and a gun and that—here the
supervisor couldn’t recall, but he believed—Mr. Miles said he would
either stab or shoot him.
    ¶4 A police officer arrived a few minutes later and handcuffed
Mr. Miles as a safety precaution. The officer asked Mr. Miles if he
had a weapon, and Mr. Miles replied that he did not. At this point
the officer “felt that [Mr. Miles] gave [him] a straight answer,” so he
proceeded to administer a field sobriety test, which Mr. Miles failed.
Based upon the officer’s observations to this point, he arrested
Mr. Miles for intoxication, threatening the supervisor, and trespass.
    ¶5 The officer next conducted a search incident to arrest. After
finding “nothing of any significance” on Mr. Miles’s person, the
officer searched Mr. Miles’s shopping cart. There, the officer found
a folding pocketknife inside the left breast pocket of one of
Mr. Miles’s jackets. Mr. Miles was not wearing the jacket during the
incident on the train platform. When the officer inquired about the
knife, Mr. Miles said he forgot he had it, but that he had purchased
the knife for a dollar at Wal-Mart and used it for camping. The
knife’s blade is approximately three-and-a-half inches long and has
a one-inch serrated portion next to the handle. The blade also
features a thumb stud, which allows the user to rotate the blade
open with one hand. Once rotated open, the blade locks back into a
position parallel with the handle to prevent the blade from swinging
closed on the user’s fingers. To close the blade from this locked
position, the user must press the “safety switch” located along the
top edge of the knife handle. At trial, the police officer testified that
the knife was capable of causing “exaggerated” wounds, permanent
disfigurement, or death, if used as a weapon. The officer agreed,

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                        Opinion of the Court

however, that the “knife wouldn’t inflict injury unless a person was
intending to use it [as a weapon].” Moreover, the officer stated that
the knife could be used as a tool for a variety of lawful purposes.
    ¶6 Salt Lake City ultimately charged Mr. Miles with four
crimes: (1) criminal trespass; (2) threats against life or property;
(3) intoxication; and (4) purchase, transfer, possession, or use of a
dangerous weapon by a restricted person.2 The jury acquitted
Mr. Miles of the first three charges but convicted him of the
fourth—possession of a dangerous weapon by a restricted person.
Mr. Miles timely appealed to the Utah Court of Appeals, claiming
the evidence presented at trial was “insufficient to establish that the
knife he possessed on the train platform was a dangerous weapon
as defined by statute.” Salt Lake City v. Miles, 2013 UT App 77, ¶ 9,
299 P.3d 1163. Over Judge Davis’s dissent, a majority of the court
affirmed Mr. Miles’s conviction. Id. ¶ 21.
    ¶7 The court first addressed the parties’ disagreement over
how to interpret the statute defining “dangerous weapon.” UTAH
CODE § 76-10-501(6). That statute begins in subsection 76-10-501(6)(a)
by stating that the term “dangerous weapon” means “an item that
in the manner of its use or intended use is capable of causing death
or serious bodily injury.” However, the statute’s next
subsection—subsection 501(6)(b)—sets out four factors that must be
used to determine whether a knife, specifically, is a dangerous
weapon:
       The following factors shall be used in determining
       whether a knife, or another item, object, or thing not
       commonly known as a dangerous weapon is a
       dangerous weapon:
       (i) the character of the instrument, object, or thing;
       (ii) the character of the wound produced, if any;
       (iii) the manner in which the instrument, object, or
       thing was used; and
       (iv) the other lawful purposes for which the
       instrument, object, or thing may be used.
Id. § 76-10-501(6)(b) (2011).



  2
    Evidence presented at trial demonstrated that Mr. Miles was a
Category II restricted person due to a prior felony conviction. See
UTAH CODE § 76-10-503(1)(b)(i).

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    ¶8 Mr. Miles essentially argued that the four factors in
subsection 501(6)(b) are the only relevant considerations in deeming
a knife to be a dangerous weapon. See Miles, 2013 UT App 77, ¶ 12.
He therefore argued that since the second and third factors either
implicitly or explicitly require actual use of the knife, “a person is
guilty of possessing a dangerous weapon only if he in fact uses it.”
Id. He asserted this conclusion followed logically from the inclusion
of “a knife” in subsection (b) as an item “not commonly known as a
dangerous weapon.” UTAH CODE § 76-10-501(6)(b) (2011). The court
of appeals, however, held this interpretation to be out of harmony
with related statutory provisions. Miles, 2013 UT App 77, ¶¶ 13–15.
First, the court concluded that Mr. Miles’s proposed interpretation
of subsection 501(6)(b) did not accord with the language of its
companion subsection 501(6)(a), which references an object’s
“intended use.” Id. ¶ 13. This reference to intended use “clearly
signal[ed]” to the court of appeals that “an item may qualify as a
dangerous weapon even if it is not actually used as one.” Id. Second,
the court pointed out that adopting Mr. Miles’s interpretation
requiring actual use would nullify the “possession” variant of the
criminal offense in section 76-10-503, which forbids not only use, but
also purchase, transfer, possession, custody, or control of a dangerous
weapon by a restricted person. Id. ¶ 14. Accordingly, the court held
that a knife or other object not commonly known as a dangerous
weapon need not “actually be used” to qualify as a dangerous
weapon under the statute. Id. ¶ 15.
    ¶9 The court next addressed, in light of its interpretation of the
statute, whether Salt Lake City presented sufficient evidence from
which the jury could reasonably conclude that Mr. Miles’s knife was
a dangerous weapon. Id. ¶¶ 16–20. After analyzing the available
evidence on each of the four factors, and viewing that evidence in a
light most favorable to the jury’s verdict, the court held that
“reasonable minds could . . . have reached the conclusion that
[Mr.] Miles’s knife was a dangerous weapon” and affirmed the
verdict. Id. ¶ 21 (internal quotation marks omitted). In doing so, the
court relied heavily on Mr. Miles’s alleged threats as evidence that
Mr. Miles intended to use the knife as a dangerous weapon. Id. We
granted certiorari to determine whether the court of appeals erred
in holding there was sufficient evidence to support Mr. Miles’s
conviction for possession of a dangerous weapon as defined in
subsection 501(6).




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                       Opinion of the Court

                    STANDARD OF REVIEW
    ¶10 On certiorari, “we review the decision of the court of
appeals and not that of the district court.” State v. Hansen, 2002 UT
125, ¶ 25, 63 P.3d 650 (internal quotation marks omitted). The court
of appeals’ decision interprets Utah Code section 76-10-501(6) and
evaluates the sufficiency of the evidence supporting Mr. Miles’s
conviction. We review the court of appeals’ statutory interpretation
for correctness, giving no deference to its legal conclusions. Stephens
v. Bonneville Travel, Inc., 935 P.2d 518, 519 (Utah 1997). Whether the
evidence presented at trial is sufficient to support the verdict is
likewise a question of law, which we review for correctness. In
reviewing the sufficiency of evidence, however, we “do[] not sit as
a second fact finder.” State v. Warden, 813 P.2d 1146, 1150 (Utah
1991). Instead, our review “is limited to insuring that there is
sufficient competent evidence regarding each element of the charge
to enable a jury to find, beyond a reasonable doubt, that the
defendant committed the crime.” Id. This review requires the
evidence and all reasonable inferences that may be drawn therefrom
to be viewed “in the light most favorable to the jury verdict.” Id.
Because a sufficiency of the evidence inquiry ends “if there is some
evidence . . . from which findings of all the requisite elements of the
crime can reasonably be made,” State v. Butt, 2012 UT 34, ¶ 24, 284
P.3d 605 (internal quotation marks omitted), we will overturn a
conviction only if the evidence “is so inconclusive or inherently
improbable that a jury must have entertained a reasonable doubt as
to the defendant’s guilt.” Warden, 813 P.2d at 1150.
                             ANALYSIS
    ¶11 Mr. Miles contends that the court of appeals erred both in
interpreting and applying section 76-10-501(6) of the Utah Code,
which defines “dangerous weapon” as used in the statute under
which Mr. Miles was convicted. We first address Mr. Miles’s
statutory interpretation arguments. We then turn to whether the
court of appeals erred in concluding that the evidence was sufficient
to support the jury’s verdict.
 I. THE FACTORS IN SUBSECTION 76-10-501(6)(b) ARE THE
EXCLUSIVE DEFINITIONAL CONSIDERATIONS FOR KNIVES
     OR OTHER ITEMS NOT COMMONLY KNOWN AS
               DANGEROUS WEAPONS
   ¶12 Mr. Miles argues that the court of appeals incorrectly
construed the statute to permit a jury to consider a knife’s intended
use in making the dangerous weapon determination. The court of
appeals held that a knife’s intended use may be considered because

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                        Opinion of the Court

subsection 501(6)(a) references “intended use” in defining the term
dangerous weapon. UTAH CODE § 76-10-501(6)(a) (2011). Mr. Miles,
however, argues that when the item in question is a “knife, or
another item . . . not commonly known as a dangerous weapon,” id.
§ 76-10-501(6)(b) (2011), the only considerations relevant to that
determination are the four factors enumerated in subsection
501(6)(b). And because those factors speak only in terms of a knife’s
actual use,3 Mr. Miles argues evidence of the knife’s intended use may
not support a verdict that the knife was a dangerous weapon.
    ¶13 When interpreting a statute, “we look first to the statute’s
plain language to determine its meaning.” Sindt v. Ret. Bd., 2007 UT
16, ¶ 8, 157 P.3d 797 (internal quotation marks omitted). “[T]he plain
language of a statute is to be read as a whole, and its provisions
interpreted in harmony with other provisions in the same statute
and with other statutes under the same . . . chapter[].” Duke v.
Graham, 2007 UT 31, ¶ 16, 158 P.3d 540 (alteration in original)
(internal quotation marks omitted).
     ¶14 As noted, subsection 76-10-501(6) states that the term
dangerous weapon “means an item that in the manner of its use or
intended use is capable of causing death or serious bodily injury.”
If we were to read this sentence in isolation, we would agree with
the court of appeals that its terms appear to apply to any item
capable of causing death or serious bodily injury, whether that item
is one that is commonly known as a dangerous weapon—like a
grenade or sword—or one that is not—like a shovel, baseball bat, or
screwdriver. The second subpart of this statute, however, qualifies
this language by stating that “in determining whether a knife, or
another item, object, or thing not commonly known as a dangerous
weapon is a dangerous weapon,” four enumerated factors “shall be
used.” UTAH CODE § 76-10-501(6)(b) (2011) (emphasis added).
“Implicit in this second sentence are two separate categories:
(1) items commonly known as dangerous weapons; and (2) items not
commonly known as dangerous weapons but included if, in
considering the . . . enunciated [factors], they qualify.” State v.
Archambeau, 820 P.2d 920, 929 (Utah Ct. App. 1991). When read
together with subsection (a), the language of subsection (b) indicates
that each subpart of this section provides a separate and
comprehensive definitional standard applicable to these two

  3
     UTAH CODE § 76-10-501(6)(b)(ii) (2011) (“the character of the
wound produced, if any” (emphasis added)); id. § 76-10-501(6)(b)(iii)
(2011) (“the manner in which the instrument, object, or thing was
used” (emphasis added)).

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separate categories of objects. Subsection (a) applies to, and
categorically includes in its definition, those objects commonly
known as dangerous weapons—i.e., those items that are designed,
produced, and commonly used or intended to be used primarily to
cause death or serious bodily injury. Subsection (b), on the other
hand, provides a separate standard that applies to objects that are
“not commonly known as . . . dangerous weapon[s],” specifically
mentioning knives, and requires consideration of four enumerated
factors in determining whether knives are dangerous weapons.
    ¶15 Stated concisely, if an item is commonly known as a
dangerous weapon because it is generally understood to be an item
whose “use or intended use” is the infliction of grave bodily injury
or death, it qualifies as a dangerous weapon under subsection
501(6)(a); but if an item is “not commonly known as a dangerous
weapon” because it is an object whose primary utility is something
other than its capability to inflict serious bodily injury or death, the
statute requires application of a four-factor test to determine if the
item qualifies as a dangerous weapon.
    ¶16 This interpretation is supported by the structure of section
76-10-501(6) and its surrounding provisions. Although subsection (a)
might appear at first blush to be a universally applicable definition
of “dangerous weapon,” we find this interpretation inconsistent
with the structure of the statute. If subsection (a) were to apply, as
the court of appeals held, to any object “that in the manner of its use
or intended use is capable of causing death or serious bodily
injury”—including items not commonly known as dangerous
weapons—consideration of at least two of the four factors in
subsection (b) would be unnecessary and duplicative. Indeed,
consideration of the first factor—the instrument’s character—would
be duplicative of subsection (a)’s consideration of the object’s “use
or intended use,” which, as described above, goes to the object’s
commonly understood nature as a dangerous weapon. And the
fourth factor—the “other lawful purposes for which the instrument
. . . may be used”—is simply the converse of subsection (a)’s
consideration of whether the object’s primary utility is its capability
to inflict serious bodily injury or death. This significant redundancy
suggests that the purpose of subsection (b) is not to list factors that
merely inform subsection (a)’s definition, but rather to provide a
separate and comprehensive set of definitional considerations
applicable to items that do not fall within the ambit of subsection
(a)—i.e., to knives and other items not commonly known as
dangerous weapons.


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    ¶17 Furthermore, we disagree with the court of appeals’
suggestion that this interpretation of the statute would “nullify [the
‘possession’] variant of the offense” in subsection 76-10-503(3).4 Salt
Lake City v. Miles, 2013 UT App 77, ¶ 14, 299 P.3d 1163. The court of
appeals concluded that an interpretation that failed to consider an
item’s “intended use” under subsection (a), and instead focused
exclusively on the four factors in subsection (b)—which speak only
of the item’s actual use—would read out of section 76-10-503(3) the
crime of possessing a dangerous weapon. See id.
    ¶18 The interpretation we espouse today, however, does not
categorically eliminate the possession variant of this offense because
objects commonly known as dangerous weapons fall squarely
within the statute’s definition of dangerous weapon under
subsection (a). Thus, for example, if a Category II restricted person
possessed an item commonly known as a dangerous weapon (for
instance, a grenade), that person could face prosecution under
subsection 503(3) for possession of a dangerous weapon, as a
grenade falls squarely within the definition of dangerous weapon
under subsection 501(6)(a). It is only when the item in question is
not commonly known as a dangerous weapon (for example, a
knitting needle or a crowbar) that the focus shifts exclusively to the
character of the instrument, the character of wounds it produced, if
any, the manner in which it was used, and the other lawful uses for
which it may be used. And under these factors, even in the absence
of use, it still may be possible for such an item to exhibit such an
abundance of weapon-like characteristics and be substantially
devoid of other lawful uses, that it may appropriately be deemed a
dangerous weapon, the possession of which would be unlawful
under Utah Code section 76-10-503(3).
    ¶19 Finally, we note that for items not commonly known as
dangerous weapons, the statutory shift in focus to these four factors,
which emphasize the manner in which the object is actually used, is
justified because such items are primarily intended to be used for
purposes other than “causing death or serious bodily injury.” UTAH
CODE § 76-10-501(6)(a) (2011).5 Thus, the intended use of these items

  4
     U TAH CODE § 76-10-503(3) (2011) (“A Category II restricted
person who purchases, transfers, possesses, uses, or has under his
custody or control: . . . (b) any dangerous weapon other than a
firearm is guilty of a class A misdemeanor.”).
  5
    It is perhaps true that an item not commonly known as a
dangerous weapon may have multiple purposes, one of which might
                                                  (continued...)

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does not establish their nature as a dangerous weapon. But an
inquiry into how the item was actually used and the wound it
actually produced, together with an analysis of the item’s character,
could demonstrate quite clearly its nature as a dangerous weapon.6
Accordingly, “in determining whether a knife, or another item,
object, or thing not commonly known as a dangerous weapon is a
dangerous weapon,” id. § 76-10-501(6)(b) (2011), evidence of the use
to which the defendant intended to put the object is not to be
considered by the fact finder.
   II. SALT LAKE CITY FAILED TO PROVIDE SUFFICIENT
  EVIDENCE UPON WHICH THE JURY COULD CONCLUDE
  THAT MR. MILES’ KNIFE WAS A DANGEROUS WEAPON
               UNDER SECTION 76-10-501(6)
    ¶20 We now turn to the question of whether the evidence
presented at trial is sufficient to sustain the jury’s verdict that
Mr. Miles’s knife was a dangerous weapon under the statute.
Having determined that the four factors in subsection 76-10-
501(6)(b) are the exclusive considerations to be addressed when
determining whether a “knife . . . is a dangerous weapon,” we now
examine the sufficiency of the evidence presented on each statutory
factor in subsection 501(6)(b).
    ¶21 The first factor is “the character of the instrument, object, or
thing.” UTAH CODE § 76-10-501(6)(b)(i) (2011). In marshaling the
record evidence supporting the jury’s verdict on this factor, the
court of appeals noted the following characteristics of the knife: its
three-and-a-half inch blade, its handle of approximately the same
length, the blade’s serrated portion, and the thumb stud located on
the blade for ease of deployment. Salt Lake City v. Miles, 2013 UT
App 77, ¶ 17, 299 P.3d 1163. In summarizing the way in which this
evidence supported the dangerous weapon determination, the court
noted that the blade “could be flipped open with one hand and was
capable of inflicting serious, even deadly, wounds.” Id. ¶ 21. We
hold, however, that this evidence cannot weigh in favor of the jury’s

  5
    (...continued)
arguably be to cause death or serious bodily injury. But this fact only
underscores the point that “intended use” is inapposite, and
therefore the determinative consideration regarding this item’s use
is not its intended use (for there may be several), but the way in
which it was actually used.
  6
     Examples abound: a baseball bat, a candlestick, a metal pipe, a
ballpoint pen, etc.

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                         Opinion of the Court

verdict because these facts simply recite general characteristics
common to many, if not most, pocketknives; and knives—under the
statute—are explicitly listed as items “not commonly known as . . .
dangerous weapon[s].” See UTAH CODE § 76-10-501(6)(b) (2011)
(emphasis added).
    ¶22 This first statutory factor does not call upon the jury to
consider the general characteristics of the knife in a vacuum, but
rather to consider the character of the knife as a dangerous weapon.
“Character” is defined, in relation to an object’s characteristics, as
the “individual composite of salient traits, consequential
characteristics, [and] features giving distinctive tone.” WEBSTER’S
THIRD NEW INTERNATIONAL DICTIONARY 376 (2002). It is similarly
defined as the “essentials of structure, form, materials, or function
that together make up and usu[ally] distinguish” the object in
question from one of a different category. Id. The purpose of this
statutory factor is to distinguish ordinary knives, those not
commonly known as dangerous weapons, from knives that are in
fact dangerous weapons. Therefore, when assessing the “character”
of the knife, the focus is on the knife’s “individual composite of
salient traits, consequential characteristics, [and] features giving [the
knife the] distinctive tone” of a dangerous weapon. For a knife’s
characteristics to weigh in favor of Salt Lake City under this factor,
they must be those that go beyond attributes common to knives that
make them useful as tools, e.g., their sharpness, cutting ability, or
safety mechanisms; they must be features that help to distinguish
the knife in question from the presumptive category of common,
tool-like knives and demonstrate a character consistent with the
statutory category of dangerous weapons.
    ¶23 None of the general characteristics recited by the court of
appeals, individually or in the aggregate, give Mr. Miles’s knife the
distinctive tone of a dangerous weapon. The knife’s three-and-a-half
inch blade is nothing out of the ordinary for common utility knives;
in fact, a blade much shorter than that would have substantially
limited utility. And the presence of a small serrated portion on the
blade is also not an inherent marker of a dangerous weapon. Indeed,
average steak knives feature a blade of at least that length and a
fully serrated blade. These features alone do not give a knife the
“distinctive tone” of a dangerous weapon.
    ¶24 The thumb stud on the knife’s blade likewise does not
distinguish this pocketknife as a dangerous weapon. Salt Lake City
argues the thumb stud is inherently weapon-like because it allows
the user to open the knife with one hand in the event the user wishes


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                       Opinion of the Court

to deploy it as a weapon. But the thumb stud offers the same
convenience if the user wishes to deploy the blade as a tool.
Accordingly, this feature is at best ambiguous, and is certainly not
an inherently distinctive feature of knives that are dangerous
weapons. We therefore hold that the evidence considered by the
court of appeals and available to the jury on this factor cannot, as a
matter of law, weigh in favor of categorizing Mr. Miles’s knife as a
dangerous weapon.
    ¶25 The second factor is “the character of the wound produced,
if any.” UTAH CODE § 76-10-501(6)(b)(ii) (2011) (emphasis added).
Only those wounds actually produced by the knife may be
appropriately considered under this factor. The court of appeals
acknowledged that “no wound was in fact produced” in this case.
Miles, 2013 UT App 77, ¶ 18. That should have been the end of the
court’s analysis. But the court went on to consider the officer’s
testimony of the wounds the knife could inflict if it were used as a
weapon, including causing “puncture and slashing wounds,” an
exaggerated wound profile due to the serrated edge, and infliction
of “permanent disfigurement or even death.” Id. This was error.
Evidence presented under this factor is relevant only if it is evidence
of wounds actually produced by the knife in question. Because
Mr. Miles’s knife inflicted no wounds, this factor must weigh against
a finding that the knife was a dangerous weapon.
    ¶26 The third factor is “the manner in which the instrument,
object, or thing was used.” UTAH CODE § 76-10-501(6)(b)(iii) (2011)
(emphasis added). Just like the second factor, this one is applicable
only when the knife is actually used. Once again, the court of appeals
acknowledged that Mr. Miles “did not physically use the knife.”
Miles, 2013 UT App 77, ¶ 19. Yet the court continued its analysis of
this factor, considering evidence that the knife was “within reach in
the pocket of [Mr. Miles’s] jacket in a nearby shopping cart,” and
that Mr. Miles had “framed” the knife as a weapon by threatening
the supervisor. Id. This, too, was error. The jury may consider
evidence under this factor only if it demonstrates the manner in
which the knife “was used.” UTAH CODE § 76-10-501(6)(b)(iii)
(emphasis added). Physical use is the touchstone of this factor’s
analysis. We therefore reject the court of appeals’ implication that
Mr. Miles “used” the knife by “framing” it as a weapon with his
threats. Even assuming Mr. Miles was referencing this knife in
making his threats, a verbal reference to an object does not constitute
“use” of that object under this statutory factor. The court of appeals
therefore erred in its analysis of this factor by considering evidence


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                       JUSTICE LEE, dissenting

that had no bearing on how the knife was actually used. Indeed, as
the court of appeals stated, the knife here was not used at all.
    ¶27 Finally, the fourth factor is “the other lawful purposes for
which the instrument, object, or thing may be used.” UTAH CODE
§ 76-10-501(6)(b)(iv) (2011) (emphasis added). The statute’s use of
the word “may” in this factor indicates that evidence presented on
this point need only demonstrate that the knife is capable of lawful
uses. The court of appeals noted the evidence presented on this
factor, specifically Mr. Miles’s statement that he used the knife for
camping. Miles, 2013 UT App 77, ¶ 20. The court agreed that the
knife is “obviously well suited for camping and other innocent uses”
as demonstrated by the officer’s testimony at trial. Id. All of the
evidence presented on this factor clearly weighed against a
determination that Mr. Miles’s knife was a dangerous weapon.
     ¶28 After review of the evidence presented under each of the
four enumerated factors in section 76-10-501(6)(b), we conclude that
none of the evidence supports Salt Lake City’s position that
Mr. Miles’s knife is a dangerous weapon under the statute. The
evidence presented on the first factor did not demonstrate, nor did
it give rise to a reasonable inference, that Mr. Miles’s knife bore the
character of a dangerous weapon as evidenced by any inherent and
uniquely weapon-like traits. Additionally, because Mr. Miles’s knife
was not used and did not produce any wounds, Salt Lake City
necessarily failed to present the jury with evidence supporting its
position on the second and third factors. And finally, the evidence
presented on the fourth factor—the knife’s other lawful
uses—clearly weighed in favor of Mr. Miles. Accordingly, we
conclude that the evidence presented at trial was insufficient to
sustain Mr. Miles’s conviction of possession of a dangerous weapon
as defined in section 76-10-501(6).
   ¶29 We therefore reverse the court of appeals and vacate
Mr. Miles’s conviction.

JUSTICE LEE, dissenting:
    ¶30 The operative statutory provisions criminalize a restricted
person’s “possession” of “an item that in the manner of its use or
intended use is capable of causing death or serious bodily injury.”
UTAH CODE § 76-10-503 & 501(6)(a) (2011) (emphasis added). These
provisions seem clearly to extend to the possession of a knife by a
person who openly threatens his intended use of causing death or
serious bodily injury. And in this case the evidence of such intent
was clear and straightforward.


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                       JUSTICE LEE, dissenting

    ¶31 The jury heard testimony from the field supervisor on duty
that Wade Miles said he had a knife or gun and would “shoot and
kill” the supervisor if he would not leave him alone. See supra ¶ 3.
That was no idle threat, as Miles in fact did have a knife within
reach. I would affirm the verdict on the basis of that evidence and in
light of the controlling statutory definition, which encompasses all
items with an “intended use” of “causing death or serious bodily
injury.” UTAH CODE § 75-10—501(6)(a).
   ¶32 The majority reaches a contrary conclusion. It does so based
on the view that the statute prescribes two separate definitions of
“dangerous weapon”—one (in subsection (a) of Utah Code section
501(6)) for objects commonly known as dangerous weapons, and
another (in subsection (b) of that same provision) for objects not so
known. Supra ¶¶ 14–18. And because a knife like the one in question
here is not “commonly known” as a dangerous weapon, the court
discards the first definition in favor of the second, concluding that
the “language of subsection (b) indicates that each subpart of this
section provides a separate and comprehensive definitional
standard applicable to” knives and other objects not commonly
known as dangerous weapons. Supra ¶ 14. Finally, the court finds no
evidence to sustain a determination of Miles’s knife as a “dangerous
weapon” under subsection (b), and therefore reverses the conviction
entered in this case for lack of sufficient evidence. Supra ¶ 28.
    ¶33 I respectfully dissent. I find no basis on the face of the
statute for the majority’s notion of two definitions of “dangerous
weapon.” Only subsection (a) of 501(6) speaks the language of
definition. It does so in unmistakably definitional terms—starting
with the statutory term in quotes and then expressly stating what it
“means.” UTAH CODE § 76-10-501(6)(a) (“‘Dangerous weapon’ means
an item that in the manner of its use or intended use is capable of
causing death or serious bodily injury.”). No other definitional
language appears in the statute. So subsection (a) represents the sum
and substance of the statutory notion of “dangerous weapon.” And
that definition says nothing of subclasses of weapons—of those
commonly known or not commonly known as weapons. Instead it
comprehensively defines “[d]angerous weapon” to mean each and
every “item that in the manner of its use or intended use is capable
of causing death or serious bodily injury.” Id.
    ¶34 I dissent from the majority’s approach because it overrides
a clear component of this definition—eliminating any possibility of
a knife (or other item not commonly known as a dangerous weapon
from) qualifying as such (absent actual use) even if its expressly


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                        JUSTICE LEE, dissenting

threatened “intended use” is to inflict “death or serious bodily
injury.” That conclusion cannot be reconciled with the statutory
definition. We cannot eliminate a subclass of items whose openly
threatened “intended use” is to inflict death or serious bodily injury
without contravening the terms of the statute.
    ¶35 Subsection (b) of section 501(6) is subordinate to, not
coextensive with, subsection (a). Because some objects used or
intended to be used to inflict injury are not always understood as
“dangerous weapons,” subsection (b) prescribes certain “factors” to
guide the factfinder’s application of the subsection (a) definition. Yet
factors are not definitional. They simply identify categories of
evidence of relevance to the legal construct in question. BLACK ’S
LAW DICTIONARY 671 (9th ed. 2009) (defining “factor” as “an agent
or cause that contributes to a particular result”) (emphasis added)).
Definitions are a distinct concept. They establish “a general rule,” or
set a “boundary.” Id. at 488 (defining “definitio,” latin root of
definition).
    ¶36 Only subsection (a) fits the latter mold. Only that provision
establishes the general rule or boundary that marks the legislative
understanding of “dangerous weapon.” It does so by clearly stating
what “‘[d]angerous weapon’ means”—“an item” (without
qualification, and without limitation to items “commonly known”
as dangerous weapons) “that in the manner of its use or intended
use is capable of causing death or serious bodily injury.” UTAH CODE
§ 76-10-501(6)(a).
    ¶37 Thus, subsection (b) is not definitional. It is a list of “factors”
of relevance to the factfinder’s application of the broader statutory
definition in subsection (a). And it does not endorse the majority’s
notion of knives and similar weapons as escaping the element of
mere “intended use.”
    ¶38 The factors listed in subsection (b) do not support the
majority’s inference of a “separate and comprehensive definitional
standard” for knives and other such objects. Supra ¶ 14. The majority
so concludes on the basis of the overlap between subsection (a)’s
notion of “intended use” and the first and fourth factors prescribed
in subsection (b). Supra ¶ 16. But the cited overlap in no way renders
the enumerated factors “unnecessary and duplicative” as extended
to knives. Id. Overlap, in fact, is inherent in the nature of a statutory
factor. The whole point of identifying “factors” of relevance to a
statutory definition is to elaborate and expand upon the definitional
terms. So the fact that consideration of an object’s “character”
overlaps with the definition’s reference to an object’s “use or

                                    15
                      SALT LAKE CITY v. MILES
                       JUSTICE LEE, dissenting

intended use” is not a reason to view the factors as overtaking the
definition. Supra ¶ 16 (so concluding). That only reinforces the
apparent purpose of the factors—of elaborating on the definition by
identifying categories of relevant evidence.
   ¶39 The same goes for the fact that the fourth factor (the object’s
“other lawful purposes”) is “the converse” of an object’s intended
use for bodily harm. Id. This is not a “significant definitional
redundancy” indicating that subsection (b) prescribes its own
subsidiary definition. Id. It is simply an elaboration of the single
definition set forth in the statute—and in that sense a classic
application of the notion of a legal factor.
    ¶40 In reversing Miles’s conviction under its construction of the
statute, the majority effectively eviscerates the crime of mere
possession of dangerous weapons such as knives. Under the court’s
opinion as I understand it, a convicted felon cannot be convicted of
unlawfully possessing a knife (or, presumably, an ice pick, box cutter,
or chain saw) that he openly wields for the threatened purpose of
inflicting serious bodily harm. So long as such weapon is not
actually used to inflict a bodily wound, the law as stated in the
majority opinion would foreclose a charge or conviction of
possession of a dangerous weapon.
    ¶41 That conclusion follows from the court’s determination of
the insufficiency of the evidence to sustain Miles’s conviction. The
majority emphasizes that under its reading the “focus” of the
statutory definition for knives is on “the manner in which the object
is actually used.” Supra ¶ 19. And it specifically holds that mere
“intended use” of a knife or other object not commonly known as a
dangerous weapon cannot “establish [its] nature as a dangerous
weapon.” Id.; see also supra ¶ 2 (explaining that for such objects “the
statute permits consideration only of how the object was actually
used”). Ultimately, from these premises, the court finds the evidence
against Miles insufficient, as he never actually used the knife in
question as a weapon but only threatened to do so, and the
“character” of the knife in the court’s view was insufficient to weigh
in favor of its treatment as a “dangerous weapon.” Supra ¶¶ 22–28.
   ¶42 I disagree with both the premises and application of the
court’s analysis. The court’s premises confirm that it is eliminating
the crime of possession of knives and other such weapons. If
“intended use” cannot suffice to establish the dangerous nature of
a knife or other such weapon, then there is no crime of mere




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                         Cite as: 2014 UT 47
                       JUSTICE LEE, dissenting

possession for such objects.1 Perhaps there is a reasonable public
policy basis for that decision.2 But there is no room for it in our
statutory scheme, and I dissent from the court’s decision on that
ground.
    ¶43 I also disagree with the court’s determination of the
insufficiency of the evidence. First, I would treat the factors in
subsection (b) for their stated purpose—as factors—and not as a
separate definition or operative test. So I would judge the sufficiency
of the evidence primarily under the definition in subsection (a), and
only secondarily as informed by the factors in subsection (b). And
under the statutory definition, I would find ample evidence to
support the jury’s determination that Miles’s knife was “an item that
in the manner of its . . . intended use is capable of causing death or
serious bodily injury.” UTAH CODE § 76-10-501(6)(a). The principal
relevant evidence was glaringly probative. It took the form of
Miles’s explicit threat to use his knife to kill or cause serious bodily
injury. That is about as clear a case of “intended use” as you could
ever find, which is why the court’s decision to reverse amounts to a

  1
    The court’s disclaimer only reinforces the problem. Certainly the
decision preserves the crime of mere possession for “objects
commonly known as dangerous weapons.” Supra ¶ 18. But there is
no separate crime of possession of objects commonly known as dangerous
weapons. The statutory crime is possession of a dangerous weapon,
and the operative definition unmistakably encompasses all objects
with the intended purpose of inflicting serious injury. So the notion
that we are preserving the crime of possession for some dangerous
weapons is a concession that we are eliminating it for others. Thus,
after today’s decision, restricted persons in Utah may openly
brandish and threaten the use of knives, ice picks, box cutters, and
the like, without fear of prosecution for possession of a dangerous
weapon. I dissent because I see no way to reconcile that with a
statute that plainly criminalizes the possession of all objects whose
“intended use” is to inflict serious injury.
  2
    I can appreciate, for example, the concern that restricted persons
deserve notice of the objects that they are criminally prohibited from
possessing; the view that it is difficult to define precisely the
considerations relevant to “intended use” of knives and other objects
with lawful uses; and the need to balance the interest of restricted
persons to own and carry such items. But these are policy questions
for the legislature. So long as our statute criminalizes the mere
possession of objects whose “intended use” is to cause death or
serious bodily injury, we must respect that decision.

                                  17
                       SALT LAKE CITY v. MILES
                        JUSTICE LEE, dissenting

decision to eliminate the crime of possession for knives or similar
objects.
    ¶44 The fact that a “threat” to use the object to cause harm is not
listed in subsection (b) is no barrier to this conclusion. Nor is the
mandatory “shall” nature of the statutory listing. Again, factors, by
nature, are categories of evidence of relevance to fact-intensive
determinations. An actual threat could easily be understood to be left
off of the list on the ground that that is a clear-cut case of intended use
to harm. And that is the ultimate statutory question; the factors are
secondary (even if required to be considered). We cannot ignore
straightforward, patent evidence of intended use just because the
statute tells us to consider other factors that would be helpful in
more difficult cases.
    ¶45 Second, I also disagree with the notion that the factors in
subsection (b) go only to an item’s actual use. Supra ¶ 19. Clearly the
“character” of an instrument and the “other lawful purposes for
which [it] may be used” are about potential use. UTAH CODE § 76-10-
501(6)(b)(i) & (iv). So at least half of the listed factors aren’t at all
about actual use. Plus, even the “manner” of use factor could
encompass use as a weapon without any actual infliction of a
wound—since weapons are also used as such to make threats. See
infra ¶¶ 47—48.
   ¶46 There is accordingly no basis for conceiving of the
subsection (b) factors as limited to actual use to inflict injury.
Understandably. Consider an ice pick. Such an item was once a
common kitchen implement. But that character went away long
ago—when the ice box became the refrigerator. So its character
today is often as a weapon.3 And it lacks few if any “other lawful
purposes.” So if an ice pick were brandished by a felon with an
express threat to use it to kill or cause serious harm, surely it would
qualify as a dangerous weapon (even without evidence of “actual
use” to inflict injury).
    ¶47 Finally, I would find the evidence in this case to be
sufficient even if I saw a basis for treating subsection (b) as a
freestanding definition. In short, I agree with the court of appeals
majority’s analysis of the statutory factors: the character of the knife

   3
     Wendy Ruderman, The Ice Pick Seems Antiquated, But It Still
Shows Up Occasionally On the Police Blotter, N.Y. TIMES, Sept. 1, 2012,
at A19 (explaining that the introduction of the refrigerator rendered
the ice pick largely irrelevant; noting that the ice pick’s principal
remaining purpose is as a weapon).

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                       JUSTICE LEE, dissenting

cuts at least arguably in favor of its assessment as a dangerous
weapon in light of its thumb stud and serrated blade; the knife’s
capability of inflicting serious wounds is another factor weighing at
least plausibly in the same direction; and Miles used the knife as a
weapon by brazenly threatening to use it to “kill” the supervisor
with it while the object was “within reach in the pocket of his jacket
in a nearby shopping cart,” thus “fram[ing] the knife as a weapon
rather than a tool.” Salt Lake City v. Miles, 2013 UT App 77, ¶ 19, 299
P.3d 1163.
    ¶48 The majority’s responses are unpersuasive. It may well be
that the thumb stud and serration do not give Miles’s knife “the
distinctive tone of a dangerous weapon,” supra ¶ 23, but that only
means that “character” is a factor that could cut either way. And on
sufficiency of the evidence questions we defer to the jury, giving its
verdict the benefit of any reasonable doubts. As to the second factor,
I do not dispute that the statute speaks directly only to “wounds
actually produced by the knife.” Supra ¶ 25 (emphasis in original). But
in the context of a crime of possession of an object intended to cause
harm, it is reasonable to read “if any” to leave room for the jury to
consider wounds potentially produced by the knife. And
significantly, I cannot agree that the “use” referred to in the third
factor refers exclusively to use to inflict a wound. Supra ¶ 26 (so
concluding). Surely weapons are understood to do more than inflict
wounds; they are also for deterrence—or for proactive threats of
violence. So in my view Miles did actually use the knife as a
weapon—to threaten the field supervisor with bodily harm. This is
not a lawful, non-weapon use. He was hardly whittling by the
campfire.
     ¶49 For these reasons, only one of the four subsection (b) factors
(“other lawful purposes for which [it] may be used”) clearly and
exclusively weighs against the jury’s verdict. I would hold that that
is insufficient, and would therefore affirm even under the majority’s
understanding of the definitional nature of subsection (b).




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