Argued and Submitted September 17, 2013
On review of decisions of the Court of Appeals, CC
C092432CR. CA A145162. CC C092075CR. CA A146764 [*]
Ernest G. Lannet, Deputy Public Defender, argued the cause and filed the brief for petitioners on review. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Matthew J. Lysne, Assistant Attorney General, argued the cause and filed the brief for respondent on review. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna Joyce, Solicitor General.
[355 Or. 801] LANDAU, J.
A person commits the crime of unlawful use of a weapon if he or she " [a]ttempts to use unlawfully against another, or carries or possesses with intent to use unlawfully against another, any dangerous or deadly weapon." ORS 166.220(1)(a). The issue presented in these two consolidated cases is the meaning of the term " use" in that statute. Defendants contend that the statute applies only when a person carries or possesses a weapon with the intent to " use" the weapon by actually employing it to injure another. The state argues that the statute also applies when a person carries or possesses a weapon with intent to " use" it to threaten or menace another unlawfully, without necessarily intending to injure the other person. The trial courts agreed with the state, as did the Court of Appeals. For the reasons that follow, we affirm.
A. State v. Ziska
Defendant Ziska got into an argument with a housemate. In the course of that argument, Ziska retrieved a crowbar, raised it, and told his housemate, " I'm going to level you." The housemate thought that Ziska was going to hit him with the crowbar. Others in the room disarmed Ziska and called the police. When the police arrived, they asked Ziska if he had wanted his housemate to know that he " meant business," and Ziska nodded his head and said, " yes." Defendant was arrested and charged with unlawful use of a weapon, ORS 166.220(1)(a), and menacing, ORS 163.190.
At his trial to the court, Ziska conceded that he had intended to threaten his housemate with a crowbar and that, as a result, he was guilty of menacing. He insisted that he was not guilty of unlawful use of a weapon, though, because the state failed to prove that he had intended to injure his housemate with the crowbar. The trial court found that, although the state failed to prove that Ziska intended to physically injure his roommate, it nevertheless proved that he unlawfully used a weapon. The court explained that,
[355 Or. 802] " 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[.]"
Ziska appealed. He argued to the Court of Appeals that the trial court erred as a matter of law in finding him guilty of unlawful use of a weapon. According to Ziska, the evidence showed that he intended only to threaten his housemate with the crowbar and that such a threat does not constitute unlawful " use" of the weapon under ORS 166.220(1) (a). The Court of Appeals affirmed, holding that, under ORS 166.220(1)(a), the term " describes both the actual use of physical force and the threat of immediate use of physical force." State v. Ziska, 253 Or.App. 82, 88-89, 288 P.3d 1012 (2012).
B. State v. Garza
Defendant Garza lived in a group home. The group home held an annual yard sale and, during one such sale, displayed on a table several knives for sale. Garza walked up to the table, intoxicated, and grabbed a folding knife from the table. One of Garza's housemates told him to put the knife back. Garza, who was about three feet away, " flashed the knife open" and held it out to his housemate in a threatening manner. Others at the scene called the police. Garza relinquished the knife and was arrested and charged with menacing and unlawful use of a weapon.
At his trial to the court, Garza moved for a judgment of acquittal, arguing that the state failed to prove that he intended to " use" the knife in violation of the statute. According to Garza, the term " use" under ORS 166.220(1)(a) means " to stab or to slash or something of that nature" and merely " threatening to use is not 'use'" within the meaning of that statute. The trial court denied Garza's motion, concluding:
" In this case, the defendant, in the light most favorable to the State, was using the knife and I think in actually two different ways. One, he was using the knife in a threatening ...