UUW, Pointing a Firearm at Another and Proportionality
Last week, I had another post on the meaning of "use" in the context of Unlawful Use of a Weapon. The issue is this: is threatening someone with a weapon enough to constitute "use" of that weapon or, relying on State v. Osborne among others, does use require a threat with the intention of furthering some other illegal end (e.g., to give up property)?
Let's assume the state is right. Use equal threat. Here's my question. Is pointing a firearm at someone ever not a threat?
Here's why I ask. ORS 166.190 defines the misdemeanor offense of "pointing a firearm at another."
166.190 Pointing firearm at another; courts having jurisdiction over offense. Any person over the age of 12 years who, with or without malice, purposely points or aims any loaded or empty pistol, gun, revolver or other firearm, at or toward any other person within range of the firearm, except in self-defense, shall be fined upon conviction in any sum not less than $10 nor more than $500, or be imprisoned in the county jail not less than 10 days nor more than six months, or both.
Maybe pointing a firearm isn't always a threat, but it certainly is when there is "malice," which is explictly encompassed by the statute.
But the crime of UUW is a felony, and it includes "unlawful use of a weapon," which -- if the state is correct -- includes using a weapon merely to threaten. Unaggravated UUW does not specifically mention firearms, but that just means that UUW is a lesser-included offense of Pointing a Firearm W/ Malice.
It works like this. Pointing a Firearm w/ Malice is equal to threatening someone with a weapon. That is, you can never point a firearm at someone w/ malice and not be threatening them. (See State v Blake and State v. Noe, which held that some crimes necessarily involve other crimes, even if the elements don't line up; uttering a forged document necessarily requires possessing it. Using a motor vehicle necessarily requires possessing it. Pointing a firearm at another w/ malice necessarily means you're threatening someone with it.) Threatening someone with a weapon is, under the state's definition, unlawful use of a weapon, a felony. But unlawful use of a weapon doesn't require that the weapon is a firearm; therefore, UUW has all the elements of Pointing a Firearm except one, thereby making UUW a lesser-included offense of Pointing a Firearm w/ Malice as a matter of law.
If a lesser-included offense is a felony, and the greater offense is a misdemeanor, that's the classic definition of a vertical proportionality problem (see St v. Simonson for last year's proportionality win).
Of course, the constitutional problem could be avoided by defining "use" as "threat plus something more." Of course, if you do that, then defendants start beating UUWs pretty routinely.
One bonus argument. If you have a UUW in which the state has alleged the gun minimum, in addition to the special jury instruction that was discussed in the earlier post, ask for Pointing a Firearm as a lesser-included. While Pointing a Firearm may not be a lesser-included offense of unaggravated UUW, once you add the gun minimum, Pointing a Firearm becomes a lesser-included offense. See St v Riehl for an analogous argument (alleging gun minimum to Rob I created lesser-included offense of Rob II).