State v. Ziska / Garza ( 2014 )

No. 51 August 7, 2014 799
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Respondent on Review,
v.
STEPHEN WAYNE ZISKA,
Petitioner on Review.
(CC C092432CR) (CA A145162) (SC S060946) (Control)
STATE OF OREGON,
Respondent on Review,
v.
MARGARITO GARZA,
Petitioner on Review.
(CC C092075CR) (CA A146764) (SC S060995)
En Banc.
On review of decisions of the Court of Appeals*
Argued and submitted September 17, 2013.
Ernest G. Lannet, Deputy Public Defender, argued the
cause and filed the brief for petitioners on review. With him
on the brief was Peter Gartlan, Chief Defender, Office of
Public Defense Services.
Matthew J. Lysne, Assistant Attorney General, argued
the cause and filed the brief for respondent on review. With
him on the brief were Ellen F. Rosenblum, Attorney General,
and Anna Joyce, Solicitor General.
LANDAU, J.
The decisions of the Court of Appeals and the judgments
of the circuit courts are affirmed.
______________
* Appeals from Washington County Circuit Court, Steven L. Price, Judge
(S060946) 253 Or App 82, 288 P3d 1012 (2012); Marco A. Hernandez, Judge
(S060995) 253 Or App 551, 291 P3d 774 (2012)
800 State v. Ziska / Garza
Defendants were found guilty of menacing, ORS 163.190 and unlawful use
of a weapon, ORS 166.220(1)(a) as a result of two separate incidents in which
defendant Ziska threatened another person with a crowbar, and defendant Garza
threatened another person with a folding knife. Defendants appealed their
convictions for violating ORS 166.220(1)(a), arguing that threatening to use a
weapon did not constitute the crime of unlawful use of a weapon. The Court of
Appeals affirmed their convictions in two separate decisions. Held: as used in
ORS 166.220(1)(a), “use” refers both to employment of a weapon to inflict harm
or injury and employment of a weapon to threaten immediate harm or injury. In
these cases, the evidence is undisputed that each defendant displayed a danger-
ous or deadly weapon against another person in a manner that threatened the
other person with imminent serious physical injury. It is further undisputed that
using those weapons in that manner was unlawful, in that it amounted to menac-
ing under ORS 163.190. The evidence therefore established that both defendants
violated ORS 166.220(1)(a).
The decisions of the Court of Appeals and the judgments of the circuit courts
are affirmed.
Cite as 355 Or 799 (2014) 801
LANDAU, J.
A person commits the crime of unlawful use of a
weapon if he or she “[a]ttempts to use unlawfully against
another, or carries or possesses with intent to use unlaw-
fully against another, any dangerous or deadly weapon.”
ORS 166.220(1)(a). The issue presented in these two consol-
idated cases is the meaning of the term “use” in that stat-
ute. Defendants contend that the statute applies only when
a person carries or possesses a weapon with the intent to
“use” the weapon by actually employing it to injure another.
The state argues that the statute also applies when a per-
son carries or possesses a weapon with intent to “use” it to
threaten or menace another unlawfully, without necessarily
intending to injure the other person. The trial courts agreed
with the state, as did the Court of Appeals. For the reasons
that follow, we affirm.
I. BACKGROUND
A.  State v. Ziska
Defendant Ziska got into an argument with a
housemate. In the course of that argument, Ziska retrieved
a crowbar, raised it, and told his housemate, “I’m going to
level you.” The housemate thought that Ziska was going
to hit him with the crowbar. Others in the room disarmed
Ziska and called the police. When the police arrived, they
asked Ziska if he had wanted his housemate to know that
he “meant business,” and Ziska nodded his head and said,
“yes.” Defendant was arrested and charged with unlawful
use of a weapon, ORS 166.220(1)(a), and menacing, ORS
163.190.
At his trial to the court, Ziska conceded that he had
intended to threaten his housemate with a crowbar and that,
as a result, he was guilty of menacing. He insisted that he
was not guilty of unlawful use of a weapon, though, because
the state failed to prove that he had intended to injure his
housemate with the crowbar. The trial court found that,
although the state failed to prove that Ziska intended to
physically injure his roommate, it nevertheless proved that
he unlawfully used a weapon. The court explained that,
802 State v. Ziska / Garza
“as I look at the language of the statute, it does say ‘use,’
and ‘use’ can include holding it up in a menacing manner.
And, just from a common sense point of view, it makes
sense that a statute would prohibit that because menacing
someone with a dangerous weapon does create a very risky
situation[.]”
Ziska appealed. He argued to the Court of Appeals
that the trial court erred as a matter of law in finding him
guilty of unlawful use of a weapon. According to Ziska, the
evidence showed that he intended only to threaten his house-
mate with the crowbar and that such a threat does not con-
stitute unlawful “use” of the weapon under ORS 166.220(1)
(a). The Court of Appeals affirmed, holding that, under ORS
166.220(1)(a), the term “describes both the actual use of
physical force and the threat of immediate use of physical
force.” State v. Ziska, 253 Or App 82, 88-89, 288 P3d 1012
(2012).
B.  State v. Garza
Defendant Garza lived in a group home. The group
home held an annual yard sale and, during one such sale,
displayed on a table several knives for sale. Garza walked
up to the table, intoxicated, and grabbed a folding knife from
the table. One of Garza’s housemates told him to put the
knife back. Garza, who was about three feet away, “flashed
the knife open” and held it out to his housemate in a threat-
ening manner. Others at the scene called the police. Garza
relinquished the knife and was arrested and charged with
menacing and unlawful use of a weapon.
At his trial to the court, Garza moved for a judg-
ment of acquittal, arguing that the state failed to prove that
he intended to “use” the knife in violation of the statute.
According to Garza, the term “use” under ORS 166.220(1)(a)
means “to stab or to slash or something of that nature” and
merely “threatening to use is not ‘use’ ” within the meaning
of that statute. The trial court denied Garza’s motion, con-
cluding:
“In this case, the defendant, in the light most favorable
to the State, was using the knife and I think in actually
two different ways. One, he was using the knife in a threat-
ening manner in order to retain the knife. * * *.
Cite as 355 Or 799 (2014) 803
“In using that knife in order to commit a robbery, he’s
using it unlawfully. *  * . Is that an unlawful use of a
*
weapon? I think it is.
“In addition, he was using it in order to place another
individual in fear of serious physical injury. Again, I
believe that that, in and of itself, also is an unlawful use of
a weapon because he’s attempted to use that weapon in an
unlawful manner and was carrying it with that intent.
“Instead, in this case, in the light most favorable to the
State, he turned around, opened that knife or opened it and
then turned around, pointed it. He didn’t just hold it or dis-
play it. He actually pointed it toward the victim who was
only a couple of feet away.”
The trial court then found Garza guilty of both menacing
and unlawful use of a weapon. Garza appealed, and the
Court of Appeals affirmed in a per curiam opinion, citing its
opinion in Ziska. State v. Garza, 253 Or App 551, 291 P3d
774 (2012).
II. ANALYSIS
On review, both defendants reprise their arguments
that using a weapon merely to threaten another person
does not constitute “use” of a weapon within the meaning
of ORS 166.220(1)(a). Defendants concede that the phras-
ing of the statute, at least on its face, is capable of meaning
any unlawful use of a weapon, and not just use to physically
injure. They nevertheless argue that, taking into account
the historical context of the statute, it becomes clear that
the legislature intended the statute to refer more narrowly
to use of a weapon to injure another person. According to
defendants, the disputed wording of ORS 166.220(1)(a) orig-
inated in 1917—a time during which, defendants contend,
the legislature did not make mere threats unlawful.
For its part, the state argues that defendants’ inter-
pretation of ORS 166.220(1)(a) is contradicted by the word-
ing of the statute itself, which broadly proscribes possession
of a dangerous or deadly weapon with the intent to use it for
any unlawful purpose, not just for the purpose of inflicting
injury. Using a weapon for the purpose of committing the
crime of menacing another person is just such an unlawful
use, the state contends. See ORS 163.190 (defining offense
804 State v. Ziska / Garza
of menacing). As for the historical context of the statute, the
state argues that defendants are simply incorrect in their
reading of the relevant statutes of the early twentieth cen-
tury. In the state’s view, the historical context for the orig-
inal enactment now codified at ORS 166.220(1)(a) confirms
that it was intended to mean what it says: namely, that an
unlawful “use” refers to any unlawful use, certainly one
that involves using a dangerous weapon in a threatening
manner.
Thus, the question before us is one of statutory
construction, governed by the familiar principles set out
in PGE v. Bureau of Labor and Industries, 317 Or 606, 859
P2d 1143 (1993), and State v. Gaines, 346 Or 160, 206 P3d
1042 (2009). Our task is to examine the text in context and
relevant legislative history, as well as applicable maxims of
construction if necessary, to determine the meaning of “use”
that the legislature most likely intended when it enacted
ORS 166.220. Gaines, 346 Or at 171-73.
We begin, as always, with the text of the statute.
Under ORS 166.220(1)(a), a person commits the crime of
unlawful use of a weapon if he or she “[a]ttempts to use
unlawfully against another, or carries or possesses with
intent to use unlawfully against another, any dangerous or
deadly weapon as defined in ORS 161.015.” The definitions
of “dangerous weapon” and “deadly weapon” are set out in
ORS 161.015:
“(1)  ‘Dangerous weapon’ means any weapon, device,
instrument, material or substance which under the cir-
cumstances in which it is used, attempted to be used or
threatened to be used, is readily capable of causing death
or serious physical injury.
“(2)  ‘Deadly weapon’ means any instrument, article or
substance specifically designed for and presently capable of
causing death or serious physical injury.”
ORS 166.220 does not define what it means to “use”
such weapons “unlawfully against another.” In the absence of
any evidence to the contrary, we assume that the legislature
intended to give those words their “plain, natural, and ordi-
nary meaning.” PGE, 317 Or at 611. To determine that ordi-
nary meaning, we begin with definitions from dictionaries
Cite as 355 Or 799 (2014) 805
that were in use at the time a statute was enacted. Vannatta
v. Keisling, 324 Or 514, 530, 931 P2d 770 (1997) (using a
“dictionary relevant to that time” in interpreting constitu-
tional provision).
What is now ORS 166.220(1)(a) was first enacted in
1917. Or Laws 1917, ch 377, § 7. According to a dictionary of
that era, the transitive verb “use” means:
“1. To make use of; to convert to one’s service; to avail one’s
self of; to employ; as, to use a plow, a chair, a book * * * 2. To
practice, esp. customarily; to make a practice of; as, to use
diligence in business; as, to use haste. 3. To behave toward;
to act with regard to; to treat; as, to use a beast cruelly. * * *
4. To accustom; to habituate; to render familiar by prac-
tice; to inure;—employed chiefly in the passive participle;
as men used to cold and hunger.”
Webster’s New Int’l Dictionary 2258 (1910) (Emphasis in
original). Another dictionary of that time likewise defines
the term to include a variety of senses, including “[t]o
employ or make use of,” “[t]o act or behave to,” “[t]o have,
possess, occupy, or enjoy for a time,” “[t]o behave, to com-
port, to demean,” and “[t]o frequent; to visit often or habitu-
ally.” The Encyclopaedic Dictionary 5018 (1894); see also The
Century Dictionary 6674 (1904) (defining the verb “use” as,
among other things, “[t]o employ for the attainment of some
purpose or end; avail one’s self of”).
Obviously, the verb “use” can be “used” in a variety
of senses. And resort to dictionaries does not reveal which
sense the legislature had in mind when it adopted the 1917
statute. For that, we look to the terms of the statute and how
the words in dispute are used in context. State v. Cloutier,
351 Or 68, 96, 261 P3d 1234 (2011) (dictionaries state “what
words can mean, depending on their context and the par-
ticular manner in which they are used”) (emphasis in origi-
nal); see also State v. Fries, 344 Or 541, 546-48, 185 P3d 453
(2008) (context determines which of multiple definitions is
the one the legislature intended).
In this case, ORS 166.220(1)(a) refers to “intent to
use” a “dangerous or deadly weapon.” In that specific con-
text, we can safely eliminate several of the different senses
listed in the dictionary and conclude that, most likely, the
806 State v. Ziska / Garza
legislature intended the first of the listed senses, that is,
“to make use of” or “to employ.” Even that, however, does
not eliminate a multiplicity of possible meanings. In the
abstract, a weapon may be employed or made use of in a
variety of different ways. A weapon such as a firearm, for
example, may be “used” by offering it as payment in a trans-
action, by employing it as a device to prop open a window, by
swinging it as a club, by pointing it at another person in a
threatening manner, or by discharging it. Each of the fore-
going is consistent with the bare dictionary definition of the
verb “use” in the sense of putting to use or employing.
ORS 166.220(1)(a), however, also refers to intent
to use a dangerous or deadly weapon “unlawfully against
another.” That narrows the definitional possibilities some-
what. Offering a weapon as collateral in an illegal drug
transaction may be using it in a sense, but it is not doing
so “against another person.” But even that qualification does
not eliminate the possibility that intent to “use” a danger-
ous or deadly weapon unlawfully against another could mean
either pointing it at another in a threatening manner or actu-
ally discharging it or otherwise employing it to a harmful
purpose. Given the ordinary meaning of the word “use,” the
wording of the statute appears to apply to either type of use,
or both. As we have noted, defendants concede that much.
We cast a wider net in our contextual analysis to
determine whether there is any evidence that the legislature
intended ORS 166.220(1)(a) to mean something other than
what the ordinary meaning of its terms suggests. Analysis
of the context of a statute may include prior versions of the
statute, Weldon v. Bd. of Lic. Pro. Counselors and Therapists,
353 Or 85, 92-93, 293 P3d 1023 (2012), including any word-
ing changes in a statute over time, Harris and Harris, 349
Or 393, 402, 244 P3d 801(2010).
As we have noted, what is now ORS 166.220(1)(a)
was first enacted in 1917 as part of a broader package of
legislation that was intended to regulate the manufacture,
sale, possession, and use of certain dangerous or deadly
weapons. The 1917 statute made it a felony to use, or carry
with intent to use, certain weapons that the legislature
regarded as dangerous or deadly:
Cite as 355 Or 799 (2014) 807
“Any person who attempts to use, or who with intent to
use the same unlawfully against another, carries or pos-
sesses a dagger, dirk, dangerous knife, razor, stiletto, or
any loaded pistol, revolver or other firearm, or any instru-
ment or weapon of the kind commonly known as a blackjack,
slungshot, billy, sandclub, sandbag, metal knuckles, bomb
or bombshell, or any other dangerous or deadly weapon or
instrument, is guilty of a felony.”1
Or Laws 1917, ch 377, § 7. The statute then provided that
the mere possession of those weapons while committing,
attempting to commit, or threatening to commit certain
offenses created a presumption that the defendant intended
to use those weapons in violation of the law:
“The carrying or possession of any of the weapons specified
in this section by any person while committing, or attempt-
ing or threatening to commit a felony, or a breach of the
peace, or any act of violence against the person or prop-
erty of another, shall be presumptive evidence of carrying
or possessing such weapon with intent to use the same in
violation of this section.”
Id.
Nothing in that original version of the statute
suggests that the legislature intended a narrow meaning
of the term “use.” Interpreting ORS 166.220(1)(a) to apply
to an attempt or intent to “use” a weapon both in the sense
of actually employing it to commit injury or employing it
to threaten such harm does not conflict with any of its
terms.
Defendants disagree, arguing that the word
“use,” as it appears in the original 1917 version of the stat-
ute, must be taken to refer to only actual—as opposed to
1
Some of the weapon terms in the 1917 statute are no longer in common use
today. As defined in the 1910 edition of Webster’s New International Dictionary,
a “blackjack” is a “small leather-covered club or billy weighted at the head and
having an elastic shaft.” Webster’s New Int’l Dictionary 232 (1910). A “slungshot”
is defined as a “small mass of metal or stone fixed on a flexible handle, strap, or
the like, used as a weapon.” Id. at 1978. A “billy” is a “bludgeon; a club; esp., a
policeman’s club.” Id. at 223. A “sandbag” is a “bag filled with sand for use as a
weapon” and typically attached to the end of a staff. Id. at 1876-77. A “dirk” is
defined as a “kind of dagger or poniard” or a “short sword.” Id. at 631. A “stiletto”
is a “kind of dagger with a slender, pointed blade.” Id. at 2045.
808 State v. Ziska / Garza
threatened—use because the statute itself draws a distinc-
tion between the two. Defendants point to the fact that the
second sentence of the 1917 statute, which set out the pre-
sumption of intent to use, referred to actually committing,
attempting to commit, or threatening to commit a crime
while carrying or possessing a weapon. According to defen-
dants, the phrasing of that sentence reveals that “[t]he
legislature conspicuously discerned [a difference] between
doing something, attempting to do something, and threat-
ening to do something.” Because the legislature did not do
the same thing when referring to attempting or intending
to “use” a weapon, defendants reason, we must understand
that to “use” a weapon is something different from threat-
ening to use it. In a similar vein, defendants argue that the
nature of the weapons listed in the 1917 statute suggests
a legislative concern for the risk of harm that results from
actually using those weapons, as opposed to merely threat-
ening to use them.
The problem with both arguments is that they
neglect to distinguish between threatening to use a weapon
and using a weapon as a threat. The two are not—or at
least, not necessarily—the same. One may threaten to use
a weapon without ever touching it, as when, for example, a
person says to another, “If you do not give me your money,
I will get my gun and shoot you.” That does not constitute
a current “use” of a weapon, as it is a threat to use it some-
time in the future. In contrast, one also may use a weapon
as a threat, as when one person points a gun at another and
says, “Give me your money.” In a sense, that is a threat to
use the weapon in the future; there is an implicit warning
that, if the money is not forthcoming, the gun will be fired.
But—and this is key—it is also a current use of the weapon
as a threat.
With that distinction in mind, it can readily be seen
that there is less significance to the phrasing of the 1917
statute than defendant draws from it. The fact that the leg-
islature did not prohibit threatening to use a weapon in the
future says nothing about whether the legislature intended
to prohibit the current use of a weapon to threaten another
person.
Cite as 355 Or 799 (2014) 809
Defendants insist that using a weapon solely as a
threat was not a criminal act in 1917. Defendants, however,
are incorrect. For example, at that time, Oregon law made it
a crime to intimidate voters by “menace, threat, or violence,
whether armed or unarmed.” Lord’s Oregon Laws, Title
XIX, ch V, § 2059 (1910). The phrasing of the statute unam-
biguously refers to using a weapon as a threat without actu-
ally injuring another person. Similarly, at the same time,
Oregon law included the offenses of riot, extortion, and coer-
cion, all of which turned on “mere” threats. Id., ch VI, § 2068
(defining crime of “riot” in part as “[a]ny threat to use force
or violence, if accompanied by immediate power of execu-
tion”); id., ch II, § 1929 (prohibiting a person from “threat-
en[ing] any injury to the person or property of another * * *
with intent thereby to extort any pecuniary advantage * * *
or with intent thereby to do any act against his will”).
Moreover, to read the 1917 statute more nar-
rowly, as defendants suggest, introduces an unnecessary
and unlikely redundancy into the state’s criminal stat-
utes at the time. See State v. Kellar, 349 Or 626, 636, 247
P3d 1232 (2011) (“Defendant’s interpretation results in
a redundancy, something that we seek to avoid in inter-
preting statutes.”). Defendants argue that, in essence, the
1917 statute’s prohibition was limited to actually attempt-
ing to assault or carrying with the intent to actually
assault another person. Oregon law at the time, however,
already prohibited physical assaults with dangerous or
deadly weapons. See, e.g., Lord’s Oregon Laws, Title XIX,
ch II, § 1923 (1910) (prohibiting “assault with a dangerous
weapon”); id., § 1918 (prohibiting assaulting another per-
son with a “cowhide, whip, stick, or other like thing,” while
also possessing a “pistol, dirk, or other deadly weapon,
with intent to intimidate and prevent such other from
resisting or defending himself”).
In short, nothing in the earliest version of what
is now ORS 166.220(1)(a) suggests that the legislature
intended the word “use” to have the narrow meaning that
defendants argue. To the contrary, the historical context
suggests a broader interpretation that includes “using” a
weapon either to injure another or to threaten injury.
810 State v. Ziska / Garza
The statute remained substantially unchanged
until 1985.2 At that point, the legislature amended the stat-
ute in response to this court’s decision in State v. Delgado,
298 Or 395, 403-04, 692 P2d 610 (1984), in which the court
concluded that a statute prohibiting the mere possession of
a switchblade knife violated the right to bear arms guar-
anteed by Article I, section 27, of the Oregon Constitution.
See Minutes, Senate Judiciary Committee, House Bill 2384,
May 30, 1985, 4 (statement of Rep. Paul Phillips).
The legislature amended the statute in a number of
ways, two of which are relevant for our purposes. First, the
legislature eliminated the presumption that possession of
dangerous or deadly weapons while committing, attempting
to commit, or threatening to commit certain offenses alone is
evidence of intent to use such weapons unlawfully. Or Laws
1985, ch 543 § 1. Second, the legislature eliminated the list of
specific weapons and prohibited instead the possession of any
“dangerous or deadly weapon,” defined in existing law, ORS
161.015, as something that, “under the circumstances in which
it is used, attempted to be used or threatened to be used, is
readily capable of causing death or serious injury.” Neither of
those amendments suggests that the 1985 legislature intended
to alter the intended meaning of the statutory term “use.”
Defendants take a different view. They argue that,
in defining a “dangerous weapon” as something that, “under
the circumstances in which it is used, attempted to be used
or threatened to be used, is readily capable of causing death
or serious injury,” the legislature once again shows that it
knows the difference between using a weapon and threat-
ening to use a weapon. Relatedly, defendants observe that
a number of the crimes in the criminal code that the legis-
lature adopted in 1971 drew a similar distinction between
using a weapon and threatening to use a weapon, and noth-
ing in the 1985 legislation suggests an intention to depart
from that distinction. Those arguments, however, reprise
defendants’ erroneous conflation of threatening to use a
weapon and using it as an unlawful threat.
2
Before 1985, the 1917 law was amended only in minor ways. For instance,
the legislature amended ORS 166.220 in 1975 to add “nunchaku sticks” to the
original list of prohibited weapons. Or Laws 1975, ch 700, § 1.
Cite as 355 Or 799 (2014) 811
We conclude that, as used in ORS 166.220(1)(a),
“use” refers both to employment of a weapon to inflict harm
or injury and employment of a weapon to threaten imme-
diate harm or injury. In these cases, the evidence is undis-
puted that each defendant displayed a dangerous or deadly
weapon against another person in a manner that threatened
the other person with imminent serious physical injury. It is
further undisputed that using those weapons in that man-
ner was unlawful, in that it amounted to menacing under
ORS 163.190. The evidence therefore established that both
defendants violated ORS 166.220(1)(a) and that the trial
courts did not err in finding defendant Ziska guilty of that
charge or in denying defendant Garza’s motion for a judg-
ment of acquittal on that charge.
The decisions of the Court of Appeals and the judg-
ments of the circuit courts are affirmed.