June 12, 2013
STATE OF OREGON, Plaintiff-Respondent,
ROLLAND THEODORE BOGGS, Defendant-Appellant.
Submitted on May 16, 2013.
Washington County Circuit Court C111739CR, Rick Knapp, Judge.
Peter Gartlan, Chief Defender, and Ernest G. Lannet, Chief Deputy Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Jeremy C. Rice, Assistant Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.
Defendant was convicted of menacing, ORS 163.190, and unlawful use of a weapon, ORS 166.220. On appeal, defendant argues that the trial court erred when it declined to give his requested jury instructions. In particular, defendant first proposed an instruction that "[t]hreatening to use a dangerous weapon is not use of that weapon, " and later proposed an instruction that threatening "to use a dangerous weapon as long as such does not serve a separate unlawful purpose is not use of that weapon." However, as this court recently held in State v. Ziska, 253 Or.App. 82, 88-89, 288 P.3d 1012 (2012), "'use' in ORS 166.220(1)(a) describes both the actual use of physical force and the threat of immediate use of physical force." Thus, defendant's proposed jury instructions were not a correct statement of the law, and the trial court did not err in declining to give them. See State v. Barnes, 329 Or 327, 334, 986 P.2d 1160 (1999) (a party is not entitled to an instruction that incorrectly states the law).