What will the Oregon Supreme Court do with Ziska?
by: • October 8, 2013 • no comments
Recently, the Oregon Supreme Court heard oral argument in State v. Ziska. The question on review is, per the OSC press release:
- Does a person commit the felony offense of unlawful use of a weapon by carrying a dangerous weapon with the intent to threaten someone?
Allow me to suggest an answer that question that is consistent with both the state's and the defendant's arguments.
As the Court of Appeals noted, the issue wasn't foreclosed by the related issue in State v Osborne, which involved the meaning of the word "use" in the context of a robbery. The reason is that the UUW statute at issue in Ziska is quite old, and the legislature could have intended "use" to mean actual use -- stabbing or shooting -- not merely threatening to use.
Oral argument hinged quite a bit on legislative intent, and whether, when the statute was passed, it was possible to use a weapon unlawfully in a manner that didn't involve stabbing or shooting or something similar. There was no crime of "menacing" for example.
My optimism about the Oregon Supreme Court has waned some in 2013, but it wouldn't stop me from preserving the issue, via a special jury instruction, in a UUW/menacing case. But I would also preserve it another way. I first made this suggestion before Ziska but after Osborne. The defendant should ask for a jury instruction such as "Threatening to use a dangerous weapon - as long as that threat doesn't serve a distinctly separate, unlawful purpose - is not use of that weapon."
This would allow a jury to convict if the threat was used to riot or to coerce. But I would argue that it wouldn't justify a conviction merely for menacing.
This language would actually be consistent with Osborne, and it would be consistent with the circumstances when the UUW was originally drafted, when "menacing" did not exist as a crime.
When I say "consistent" with Osborne, here's a quote from said case to show what I mean:
- 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.”
The issue wasn't framed that way to the OSC, and I have no particular reason to think they will go down that road. (But if anyone wants to e-mail the court's clerks this blog post, feel free.) That said, my superficial take -- I haven't reviewed the legislative history or the briefing to have an opinion that is more than superficial in this instance -- is that such an instruction would be justified, would be consistent with both sides of Ziska and would be consistent with Osborne. And most of all, it would trim back a little prosecutorial excess.
But if I'm wrong, don't forget to argue, if you lose a UUW/menacing case, that UUW and Menacing merge into a single conviction.
