State v. McAuliffe, 366 P.3d 1206

Defendant, a rancher, repeatedly complained to the local airport about a flight school plane flying low over his property and threatened to “take matters into his own hands.”
Airport operations manager and police visited defendant; defendant remained angry and later yelled at the manager to leave his property.
On September 13, 2011 defendant called 9-1-1, stated he was “sitting here with a shotgun” and said if authorities did not act he would; dispatcher warned against drastic action.
Officers saw a shotgun on defendant’s porch and a holstered pistol on his belt; defendant resisted arrest and admitted post-arrest that he had had “serious thoughts” about shooting at the airplane and had held up a shotgun shell to send a message.
State charged two counts of unlawful use of a weapon with a firearm (shotgun and pistol) under ORS 166.220(1)(a) and the gun-minimum allegation under ORS 161.610; jury convicted on the shotgun count and resisting arrest, acquitted on the pistol count.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether evidence was legally sufficient to prove the intent element of unlawful use of a weapon (UUW) for the shotgun	State: Evidence of threats, possession of shotgun on porch, statements about acting if officials don’t, and admission of serious thoughts supports intent to use unlawfully	Duncan: He did not point or fire the shotgun; state failed to show he used the shotgun to make a present/immediate threat	Affirmed: Viewing evidence in state’s favor, a rational juror could find defendant possessed the shotgun with intent to use it unlawfully (to fire or to threaten immediate injury)
Whether “use” in ORS 166.220(1)(a) includes threatening immediate harm	State: Following Ziska/Garza, “use” includes employment of a weapon to threaten immediate injury	Defendant: Argued that to prove intent to threaten, state must show present/immediate threat (e.g., pointing or ready to fire)	Court: Agrees with Ziska/Garza that “use” includes threats of immediate harm, but conviction may rest on possession with intent; here evidence supported intent even without an explicit present-pointing act

State v. Ziska/Garza, 355 Or. 799 (Supreme Court) (held that “use” in ORS 166.220(1)(a) includes employing a weapon to threaten immediate harm)
State v. Rose, 109 Or. App. 378 (Or. Ct. App.) (possession of a loaded, cocked pistol hidden in car supported inference of intent to use unlawfully)
State v. Cufaude, 239 Or. App. 188 (Or. Ct. App.) (noting ORS 166.220(1)(a) can be proved by possession with intent rather than actual use)
State v. Daniels, 348 Or. 513 (Or. 2010) (standard for reviewing sufficiency of evidence on acquittal motions)