Unlawful use of weapon
Source:
Section 166.220 — Unlawful use of weapon, https://www.oregonlegislature.gov/bills_laws/ors/ors166.html
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Notes of Decisions
Evidence that defendant carried cocked, holstered pistol, that he told police he would meet force with force and firearms with firearms if police moved into building which he and others were unlawfully occupying, and that gun was later found to be loaded, was sufficient to support finding that defendant carried dangerous weapon with intent to use it. State v. Essig, 31 Or App 639, 571 P2d 170 (1977), Sup Ct review denied
Menacing is not lesser included offense of carrying dangerous weapon within intent to use. State v. Cummings, 33 Or App 265 (1978)
Officer was entitled to search wallet within purse incident to arrest for possession of dangerous weapon with intent to use it unlawfully. State v. Rose, 109 Or App 378, 819 P2d 757 (1991)
Conviction for attempted use of or intent to use dangerous or deadly weapon does not merge with conviction arising out of same conduct for intentional discharge of described weapon within city or residential area or in direction of person, building, structure or vehicle. State v. Crawford, 215 Or App 544, 171 P3d 974 (2007), Sup Ct review denied; State v. Gray, 240 Or App 599, 249 P3d 544 (2011), Sup Ct review denied
Person cannot commit crime of attempt to unlawfully use weapon if person acts with reckless mental state. State v. Harris, 230 Or App 83, 213 P3d 859 (2009)
Where person causes serious physical injury to another with dangerous or deadly weapon, crime of assault in second degree does not merge with crime of unlawful use of weapon. State v. Alvarez, 240 Or App 167, 246 P3d 26 (2010), Sup Ct review denied
Attempt to use unlawfully, or carrying or possession with intent to use unlawfully, dangerous or deadly weapon is not lesser included offense of intentional discharge of described weapons within city or residential area or in direction of person, building, structure or vehicle. State v. Gray, 240 Or App 599, 249 P3d 544 (2011), Sup Ct review denied
Where defendant intended to threaten victim with immediate use of crowbar but did not use physical force, defendant “used” weapon. State v. Ziska, 253 Or App 82, 288 P3d 1012 (2012), aff’d355 Or 799, 334 P3d 964 (2014)
Under this section, “use” refers to employment of weapon to inflict harm or injury and employment of weapon to threaten immediate harm or injury. State v. Ziska/Garza, 355 Or 799, 334 P3d 964 (2014)
This section is divisible statute; thus, where court did not determine which of two offenses, attempt or possession, defendant’s conduct constituted for purposes of determining whether defendant committed crime of violence in violation of condition of release, court’s revocation of term of supervised release was invalid. United States v. Willis, 795 F3d 986 (9th Cir. 2015)
Where defendant told 9-1-1 dispatcher “I’m sitting here with a shotgun . . . if they don’t want to do something, then I’ll do it myself . . . ,” defendant admitted to holding up shotgun shell to send message to airplane pilot and had “serious thoughts” about shooting at airplane and upon arriving at defendant’s residence officers saw shotgun on defendant’s porch and pistol holstered to defendant’s belt, evidence was sufficient to support conviction under this section. State v. McAuliffe, 276 Or App 259, 366 P3d 1206 (2016), Sup Ct review denied
Because defendant’s conduct was punishable under federal assault statute, which occupies field of assault, this section was improperly assimilated under Assimilative Crimes Act for prosecution of unlawful use of weapon by defendant in place under federal jurisdiction. U.S. v. Dat Quoc Do, 994 F3d 1096 (9th Cir. 2021)