Use of a Weapon, Robbery and Threats
by: Ryan • April 12, 2011 • no comments
This has been a pet issue of mine for at least five years now. What is the definition of "use"? Specifically, if someone threatens the use of a weapon, have they used that weapon? (One way of looking at the preceding question: if someone promises to kick my ass, have they kicked my ass?) The gun minimum criminalizes "use or threatened use of a firearm." Is that redundant, in violation of the rule of statutory interpretation that disfavors redundancy? Or is the definition of "use" sufficiently narrow that it does not include mere threats?
This comes up in two contexts. There's "use or attempted use" of a dangerous weapon, a necessary element of Robbery in the First Degree and "use, attempted use and possession with intent to use" in the context of Unlawful Use of a Weapon.
At the trial level, defense attorneys - particularly those who read MPDtrainer, who also happen to be the best looking lawyers in Oregon - have routinely won the argument that just threatening someone is not enough to be guilty of "unlawful use of a weapon." See the discussion and jury instruction here. But we've also routinely lost the argument that threatening to use the weapon is not enough to constitute "use" for the purposes of robbery in the first degree. Is that a contradiction? And if it is, which view will win out at the COA?
Today we have an opinion in St v. Osborn that does not favor the defense, but may not do much to change the status quo. In this case, the defendant held a knife at his side during a robbery, certainly intending to threaten the victim into compliance, but not intending to stab her.
This is the key paragraph:
"The legislature has not defined the term 'use' in ORS 164.415. Accordingly, we give the word its ordinary meaning. PGE, 316 Or at 611. The ordinary meaning of 'use,' as pertinent here, is 'to carry out a purpose or action by means of : make instrumental to an end or process : apply to advantage : turn to account : UTILIZE[.]' Webster's Third New Int'l Dictionary 2524 (unabridged ed 2002). Thus, in order to 'use' a dangerous weapon as required by ORS 164.415(1)(b), a defendant must carry out a purpose or action by means of the dangerous weapon, make the weapon instrumental to an end or process, or apply the weapon to his or her advantage. Applying that definition of 'use' to the evidence here, we conclude that a jury could find beyond a reasonable doubt that defendant used or attempted to use the knife to accomplish the theft-indeed, defendant's own testimony established that point: 'I was using [the knife] for my own benefit * * * I was just showing her that I needed the money, and it was serious.'"
In other words, the possible contradiction I noted above may not be a contradiction at all. A threat is not, by itself, use, which means that a mere threat is not enough to make someone guilty of Unlawful Use of a Weapon. But a threat that is a means to an end, that is, a threat intended to facilitate a theft or a coercion, does constitute use of that weapon.
I'm not surprised by this result, and it's better than I feared. It will require modification of the "use" jury instruction at the link above and a change in the memorandum in support of that instruction, but in most stand-alone UUWs, where the defendant merely threatened somebody as an end in itself and not in service of a larger purpose, the defendant should still be able to obtain an acquittal. You can recognize those UUWs easily enough from the charging instrument: the defendant is only charged with UUW and Menacing. No additional robberies, no coercions, nothing else.
This will still require a fight, but it's a fight that most defense attorneys have been winning and should continue to win (though perhaps not quite as often).
