Who is the Victim of Unlawful Use of a Weapon?
by: Ryan • February 15, 2011 • no comments
A merger opinion came out today that was a bit disappointing, although it largely reaffirmed an earlier opinion, so my chagrin is somewhat muted. But as I often tell new attorneys, it's in the bad cases that you often find very useful nuggets, and this case is no exception.
[We quickly interrupt this post with a reminder that if you've got a UUW that doesn't involve discharge of a firearm, see this earlier post immediately.]
Today's opinion - by the always thoughtful Judge Brewer - hinges on the difference between discharging a firearm in the direction of a person and using a deadly weapon against a person. Both fall under ORS 166.220, both constitute Unlawful Use of a Weapon, but the latter is in subsection (a) and the former in subsection (b). The court found that those are two distinct statutory provisions, not unreasonably, but at odds with the general trend over the past few years.
The court relies, in part, on the fact that discharging a gun in the direction of a person is substantively different than using a gun against a person. Here's what the opinion says:
"Count Four required the state to prove that defendant had (a) unlawfully discharged a firearm, (b) within the city limits of Portland, Oregon, neither of which had to be proved in order to convict defendant on Count Five. Likewise, Count Five required the state to prove that defendant carried or possessed the firearm with the intent to use it unlawfully against another person, an element not required to convict defendant on Count Four. Although Count Four did require the state to prove that defendant intentionally discharged the firearm 'at or in the direction of a person within the range of said weapon without having legal authority for such discharge,' Count Five required defendant to carry or possess the firearm with the intent to use it unlawfully with regard to "another person," not any person within the range of the firearm. "[Emphasis in original.]
I want to avoid reading too much into this, but it certainly implies that discharging a gun at the direction of a person within the range of said weapon means the weapon hasn't necessarily been used against that person. Again, let me emphasize that there are aspects of this paragraph that could be so thinly spliced that you might be able to reach a different conclusion, but this conclusion is, I think, the most likely.
So it's like this. I'm wild and crazy, I fire a gun wildly, I'm charged with UUW because John Smith is on the corner in the general direction of where I fired the gun. His presence makes me guilty but I have not used the gun against him.
Assuming I'm reading that analysis correctly, it strongly suggests that the person within range of the firearm is a necessary part of the crime of UUW under sub (b) but, like the child-witness in felony assault IV (St v. Glaspey) or the endangered person in an arson (St v. Luers), he or she isn't a victim of the crime.
This analysis would only go to sub (b) - not sub (a) - but it's relevant in a case where multiple people are within range of the discharged firearm, and the defendant is charged with UUW - sub (b) - for each of them. If the bystander isn't a victim, those counts merge into a single conviction.
One related thought: who is the victim in Resisting Arrest? I haven't researched to see if there is an answer, but I suspect - just like witness tampering - the victim is the state, not the police officer. (The crime is listed in the "offenses against the state" chapter of the criminal code.) Therefore, a defendant who "resists" multiple officers should only be convicted of a single resisting arrest. If there is an answer already in the case law, and that answer is against me, it might be worth revisiting if the opinion came out before Glaspey and Luers, two of the most important - and counter-intuitive - cases on who is a victim .
