State v. Ziska

288 P.3d 1012, 253 Or. App. 82, 2012 Ore. App. LEXIS 1302
CourtCourt of Appeals of Oregon
DecidedOctober 24, 2012
DocketC092432CR; A145162
StatusPublished
Cited by8 cases

This text of 288 P.3d 1012 (State v. Ziska) 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. Ziska, 288 P.3d 1012, 253 Or. App. 82, 2012 Ore. App. LEXIS 1302 (Or. Ct. App. 2012).

Opinion

ARMSTRONG, P. J.

Defendant appeals his conviction for unlawfully using a weapon, ORS 166.220, assigning error to trial court rulings that, together, constituted denial of a motion for a judgment of acquittal. Defendant argues that, although he intended to threaten the victim when he menacingly waved a crowbar over his head, he did not carry the crowbar with the intent to use it against the victim, as required by ORS 166.220(l)(a), because he did not intend to use it to assault the victim. We affirm.

The relevant facts are not in dispute. After an evening of drinking with friends, defendant got into an argument with one of his housemates, A, while sitting in their living room. Tensions rose, and defendant eventually stood and challenged A to a fight. Others intervened, and a houseguest escorted A into the backyard in order to defuse the situation. Defendant, in turn, went to his room.

Minutes later, defendant returned to the living room carrying a crowbar and sat down in a chair. A came back inside and also walked into the living room. During their subsequent exchange, defendant, who was still upset with A, would raise the crowbar and wave it above his head. Eventually, defendant stood, raised the crowbar, and said, “I’m going to level you.” A believed that defendant was coming toward him and intended to hit him with the crowbar. Several people intervened at that point, disarmed defendant, separated defendant and A, and called the police.

Police arrived, took defendant into custody, and gave him Miranda warnings. As police questioned him at the scene, defendant, who was noticeably intoxicated and upset, explained that A had offended him. A, who was much younger than defendant, had called defendant names, and defendant felt that A was belittling him. Defendant initially denied having brought the crowbar to the living room, although he eventually admitted having done so for his protection. Aside from A’s derisive comments, however, defendant did not explain why he had felt threatened. Defendant claimed that he had kept the crowbar behind his back and that nobody could see it, yet he acknowledged that his housemates had forcibly taken it from him. When asked [84]*84how, if no one could see the crowbar, his housemates knew to take it from him, defendant answered, “Just take me to jail. I’m the bad guy.” Police then asked if defendant had wanted his housemates to know that he “meant business”; defendant nodded his head and said, “yes.”

Defendant was charged with one count of unlawfully using a weapon, ORS 166.220(l)(a), and one count of menacing, ORS 163.190. Defendant pleaded not guilty and proceeded to a bench trial, where he argued that unlawful use of a weapon, under ORS 166.220(l)(a), requires, the intent — or an attempt — to physically injure another person with a dangerous weapon. ORS 166.220(l)(a) provides:

“A person commits the crime of unlawful use of a weapon if the person:
“(a) Attempts to use unlawfully against another, or carries or possesses with intent to use unlawfully against another, any dangerous or deadly weapon as defined in ORS 161.015 ***.”

In his closing argument, defendant conceded that he had intended to threaten A with a crowbar and, consequently, that he was guilty of menacing. However, he argued that the state had failed to present evidence that he had intended to physically injure A with the crowbar and, therefore, had failed to prove that he was guilty of unlawfully using the crowbar against A.

Ultimately, the trial court rejected defendant’s arguments, agreeing that the state had failed to prove that defendant intended to assault A, but concluding

“as I look at the language of the statute, it does say ‘use,’ and use can include holding it up in a menacing manner. And, just from a common sense point of view, it makes sense that a statute would prohibit that[,] because menacing someone with a dangerous weapon does create a very risky situation * * % •>■>

On appeal, defendant renews his argument that a conviction under ORS 166.220(l)(a) requires proof of intent to physically injure another with a dangerous weapon. Although acknowledging that we have held that “use” of [85]*85a weapon includes making threats with it, at least in the context of robbery, defendant contends that the legislature intended a narrower meaning of “use” when it enacted in 1917 the statute that would become ORS 166.220. He raises a number of contextual arguments to support his position. In response, the state argues that ORS 166.220(l)(a), by its terms, prohibits the possession of a weapon with the intent to put it to any unlawful use. Because menacing is unlawful, the state contends that ORS 166.220(l)(a) prohibits the possession of a weapon with the intent to use it to menace someone, as defendant admits he did here. For the reasons set out below, we agree with the state and affirm.

This is not the first time that we have been asked to construe the meaning of the term “use” in the context of a weapons statute. In State v. Osborne, 242 Or App 85, 255 P3d 513 (2011), the defendant was convicted of first-degree robbery after he demanded money from a store clerk while holding a knife. The defendant argued that he did not use or attempt to use the knife, as required by ORS 164.415(1)(b).1 Instead, by holding it in his hand, the defendant contended that he had only threatened to use the knife. We rejected that argument, holding that the phrase “[u]ses or attempts to use a dangerous weapon” in that statute “describes a manner of use or threat of immediate use of physical force[.]” Osborne, 242 Or App at 90 (emphasis added).

The state notes that this case presents an almost identical argument to the one that we rejected in Osborne and argues that we should again reject that argument. Defendant’s argument, however, is more nuanced than the one that we addressed in Osborne. Defendant concedes that Osborne accurately reflects the intent of the legislature in 1971, when the legislature defined the offense of first-degree robbery. Yet the legislature enacted what would become ORS 166.220 more than 50 years earlier, in 1917.

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Related

State v. Smith
363 P.3d 514 (Court of Appeals of Oregon, 2015)
State v. Ziska / Garza
334 P.3d 964 (Oregon Supreme Court, 2014)
State v. Amaya
320 P.3d 673 (Court of Appeals of Oregon, 2014)
State v. King
317 P.3d 901 (Court of Appeals of Oregon, 2014)
State v. Boggs
306 P.3d 660 (Court of Appeals of Oregon, 2013)
State v. Pinckney
298 P.3d 1248 (Court of Appeals of Oregon, 2013)
State v. Garza
291 P.3d 774 (Court of Appeals of Oregon, 2012)

Cite This Page — Counsel Stack

Bluebook (online)
288 P.3d 1012, 253 Or. App. 82, 2012 Ore. App. LEXIS 1302, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ziska-orctapp-2012.