State v. McAuliffe

366 P.3d 1206, 276 Or. App. 259, 2016 Ore. App. LEXIS 121
CourtCourt of Appeals of Oregon
DecidedFebruary 3, 2016
Docket1102485CR; A156306
StatusPublished
Cited by11 cases

This text of 366 P.3d 1206 (State v. McAuliffe) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. McAuliffe, 366 P.3d 1206, 276 Or. App. 259, 2016 Ore. App. LEXIS 121 (Or. Ct. App. 2016).

Opinion

DUNCAN, P. J.

In this criminal case, defendant appeals, assigning error to the trial court’s denial of his motion for a judgment of acquittal on one count of unlawful use of a weapon with a firearm. ORS 166.220(l)(a); ORS 161.610. Because we conclude that the state presented legally sufficient evidence to support a finding that defendant carried or possessed a shotgun with the intent either to use it to injure another person or to use it to threaten to immediately injure another person, we affirm.

We review the denial of a motion for a judgment of acquittal to determine whether, after viewing the evidence in the light most favorable to the state, a rational trier of fact could find that the elements of the crime were proved beyond a reasonable doubt. State v. Daniels, 348 Or 513, 518, 234 P3d 976 (2010); State v. Smith, 274 Or App 562, 564, 363 P3d 514 (2015). Stated in accordance with that standard, the relevant facts are as follows.

Defendant is a rancher who lives near the Klamath Falls airport. In August 2011, defendant made a series of telephone calls to the airport’s operations manager to complain about a small airplane flying low over his property. In one call, defendant described the airplane, and the operations manager concluded that the airplane belonged to a flight school. In a later call, defendant angrily stated that he would “take matters into his own hands.” Based on that call, the operations manager was concerned that defendant was going to “do some harm * * * to make the pilot go away.” The operations manager visited defendant’s property with two police officers and assured defendant that he would try to “mitigate some of the issues.” After that visit, defendant made another angry telephone call to the airport to complain about the airplane flying over his property again. Sometime after that call, the operations manager visited defendant’s property with the flight school pilot. When the operations manager approached defendant’s property and attempted to speak with him, defendant became very agitated and yelled at him to go away.

On September 13, 2011, after the operations manager’s second visit to defendant’s property, defendant called [261]*2619-1-1 to report that the airplane was flying low over his property. He said that a police officer had told him to call 9-1-1 if the airplane bothered him again. Defendant was agitated and stated that “they told me they’d take care of the problem, they didn’t take care of it, and now [the pilot] is doing it again.” Defendant told the dispatcher, “I’m sitting here with a shotgun, [the pilot has] been coming over here all summer bothering me.” The dispatcher responded that she did not want defendant “taking any drastic action with a gun, because that is not going to end well for anyone.” Defendant replied, “I’ve been after him all summer to do something about this guy. He’s just fooling with me. If they don’t want to do something, then I’ll do it myself. * * * I’m not going to put up with any more crap.”

After defendant hung up on the dispatcher, officers went to defendant’s residence. They saw a shotgun on defendant’s porch and a pistol holstered on his belt. When one of the officers later attempted to arrest defendant, defendant tried to spin out of his grasp and the officer tackled him. After arresting defendant, the officers transported him to the police station for questioning. During the questioning, defendant asked, “What do I have to do, shoot him down to get him off of me?” Defendant admitted that he had had “serious thoughts” about shooting at the airplane and that he had held a shotgun shell up to the airplane as it flew by in order “to send [the pilot] a message to stop flying over his house.”

The state charged defendant with two counts of “unlawful use of a weapon with a firearm,” one for the shotgun (Count 1), and one for the pistol (Count 2). The state also charged defendant with one count of resisting arrest (Count 3).

ORS 166.220 defines the crime of unlawful use of a weapon (UUW).1 Counts 1 and 2 alleged that defendant violated ORS 166.220(l)(a) by carrying or possessing a [262]*262dangerous or deadly weapon with the intent to use it unlawfully against another. Those counts also alleged, pursuant to ORS 161.610, that defendant “used or threatened to use a firearm.” (Under ORS 161.610, which is commonly referred to as the “gun minimum statute,” the state can allege, as an additional element of a felony, that the defendant used or threatened to use a firearm during the commission of the felony. The additional element, if proven, carries sentencing consequences.)

At the close of the state’s case-in-chief, defendant moved for a judgment of acquittal on Counts 1 and 2, asserting that there was insufficient evidence that he intended to use either the shotgun or the pistol unlawfully against another person. In response, the state argued that there was sufficient evidence that defendant intended to use the weapons unlawfully against another person, contending that, for the purposes of the UUW statute, “use” includes not only using a weapon to injure another person, but also using a weapon to threaten to injure another person. The trial court denied defendant’s motion, stating that, “with the evidence taken in the light most favorable to the state, there’s a jury question as to whether or not he intended to use it unlawfully against another.”

A jury found defendant guilty of Count 1 for UUW with a firearm (based on the shotgun) and Count 3 for resisting arrest. The jury found defendant not guilty of Count 2 for UUW with a firearm (based on the pistol). On appeal, defendant challenges only his conviction on Count 1.

Defendant argues that he was entitled to a judgment of acquittal on Count 1 because the state failed to present sufficient evidence to establish the intent element of UUW. Specifically, he contends that the state failed to present sufficient evidence that he “intended to use a weapon [263]*263as a threat [.]” According to defendant, “[t]o establish that a person intended to use a weapon as a threat, the state must show that the person employed the weapon to threaten immediate harm or injury[.]” The state failed to do so in this case, defendant argues, because it failed to show that he used the shotgun “to make a present threat.” Defendant notes that there was no evidence that he pointed the shotgun at the airplane or otherwise indicated that he would fire it immediately.

Although defendant states that he is challenging the sufficiency of the state’s evidence regarding his intent, his argument focuses on the state’s evidence regarding his actions. He argues that “he did not unlawfully use [the shotgun] against the plane, its pilot, or its occupants!,]” and, “[therefore, this court should reverse the trial court’s denial of [his] motion for judgment of acquittal.”

Defendant’s argument fails to account for the complete definition of the crime of UUW.

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Cite This Page — Counsel Stack

Bluebook (online)
366 P.3d 1206, 276 Or. App. 259, 2016 Ore. App. LEXIS 121, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mcauliffe-orctapp-2016.