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Brand New Merger Argument

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by: Ryan • October 24, 2012 • no comments

In today's COA opinion, State v. Ziska (an opinion I find baffling for reasons I'll discuss below), the court announced the following holding relative to the crime of Unlawful Use of a Weapon: "[We] hold that 'use' in ORS 166.220(1)(a) describes both the actual use of physical force and the threat of immediate use of physical force."

ORS 166.220(1)(a) itself says:

(1) A person commits the crime of unlawful use of a weapon if the person:</font></font></span> (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;

For the purpose of the following merger argument, let's assume that the state has alleged "attempted to use" only in the indictment. [I will later discuss when the state has alleged both.]

Consequently, a person can be guilty of UUW when he or she has (1) threatened the immediate use of physical force (2) with a weapon and (3) the weapon is capable of causing serious physical injury in the manner in which it is used or threatened to be used. (#3 is what makes it a "dangerous" weapon.)

When the state charges UUW, but there's been no actual discharge, the state will usually attach a count of Menacing. And Menacing is defined as:

(1) A person commits the crime of menacing if by word or conduct the person intentionally attempts to place another person in fear of imminent serious physical injury.

Here's my question: is it possible to threaten someone with physical force, with a weapon that is capable of readily causing serious physical injury if used in the manner in which it is threatened to be used, and NOT be guilty of "attempting to place [them] in fear of imminent serious physical injury"?

And if it is not possible to do the former without also doing the latter, wouldn't the two counts necessarily merge, under the analyses of State v. Blake and State v. Noe, which both held that two crimes merge if committing one invariably requires committing the other?

Okay, but what if the state has charged UUW and Menacing, but it has only alleged "possesses with intent to use" in the UUW count, striking the language "attempts to use." In that case, would the two counts still merge?

Probably not, because "possess with intent to [threaten/menace]" doesn't require that the defendant actually [threaten/menace], in the same way burglary requires only an intent to [steal] rather than actual theft.

What if the state charges both "attempts to use" and "possesses with intent to use," no election is made, and the jury convicts of UUW without distinguishing which element the jury is relying on (especially since the jury probably relied on both)? This issue comes up in other merger contexts, and to my knowledge, the COA has never addressed it. But I think if the state charges and convicts the defendant under both theories, the defendant gets all the benefits of each theory of which he was found guilty.

Okay, so I indicated above I had some problems with the opinion. Reading it, you might think that the courts and legislature have always assumed the word "use" was intended broadly enough to include within its meaning "threaten to use." This, though, is simply not true. The gun minimum punishes "use or threatened use" of a firearm. Oddly redundant that (if the Ziska court is correct), and a redundancy that -- under traditional statutory interpretation -- is disfavored. Another example? You might have noticed it above. "Dangerous weapon" refers to a weapon that could readily cause serious physical injury in the manner in which it is used . . . or threatened to be used.

If "use" includes "threat to use," then a dangerous weapon is a weapon that could cause serious physical injury in the manner in which it is threatened to be threatened to be used?

I get that the court isn't always inclined to mention those statutory examples which significantly undercut its own holding. But here's the part that really confuses me. The analysis in Ziska depends on the legislative intent from 1918, when the statute was first drafted. And the Ziska court acknowledges that if the 1918 legislature limited the scope of the word "use," it would be bound by that. The court, however, notes that the legislature -- around the same period of time -- did not intend that "use" be so limited, as evidenced by its use (sorry) of the term in related contexts.

Other criminal weapons statutes from the time support our conclusion. The legislature unambiguously prohibited physical assaults when those assaults were the scope of its concern. See Lord's Oregon Laws, title XIX, ch II, § 1918 (1910) (describing use of a weapon as "assaults" or "beats"); id. § 1923 (describing use of weapon as "assaults"); id. § 2047 (describing use of weapon as "strikes, wounds, stabs, shoots, or shoots at"); id. § 2049 (same).

I confess I haven't gone to the original source for all those legislative examples, but doesn't that paragraph logically stand for the exact opposite of what the Ziska court thinks it does? I mean, the whole opinion revolves around whether the legislature in 1918 thought "use of a weapon" just meant assault or if it also meant "threaten to assault." And that paragraph seems to say that "use of a weapon" means "assaults" or "beats" or "stabs" or "wounds" or "shoots"; in other words, exactly what the defense attorney said the phrase meant. The examples the Ziska court gives are utterly devoid of any indication the legislature thought the phrase "use of a weapon" encompassed mere threats.

I didn't lie when I said the opinion was baffling. I have the utmost respect for the Ziska panel, and heaven knows I've misread things before and I'll misread them again. In fact, I'm inclined to think it must be me, because even this sentence confuses me: "The legislature unambiguously prohibited physical assaults when those assaults were the scope of its concern." Umm, yeah? I don't even know what that sentence means, to be honest. Defendant Ziska's definition of "attempted use or intent to use" wouldn't in any way ambiguate* the otherwise unambiguous prohibition against assault.

Maybe I'll get it after I've read it a few more times.

  • Is "ambiguate" a word? Never seen it, but I have seen "disambiguate" so I'm going to say "yes!"