State v. Smith, 363 P.3d 514

Defendant appeals conviction for two counts of unlawful use of a weapon (Counts 1–2) under ORS 166.220(1)(a) and the trial court’s imposition of a fine and attorney fees.
At the incident, defendant threatened his wife and son with a loaded .22 revolver, cocked and pointed at them; he threw the gun to the floor when the food-stamps card was handed to him.
Defendant was unemployed and had medical issues affecting balance and mobility.
Defendant was charged with multiple offenses; prior to trial he proposed a jury instruction defining “use of a deadly weapon” and distinguishing mere threat.
After trial, the court denied his MJOA, declined his proposed instruction, and instructed that “use or threatened use” includes discharge or threatened discharge of a firearm; he was sentenced to five years and two years of post-prison supervision; Count 2 included a $1,500 fine and $470 in attorney fees.
We address whether the trial court correctly interpreted ORS 166.220(l)(a) and whether imposing attorney fees was proper, with plain-error review applicable to the fine and fees and whether the record shows defendant’s ability to pay.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does “use” in ORS 166.220(l)(a) include threats of immediate use?	State relies on Ziska/Garza concluding threats satisfy use.	Garza argued threats do not constitute use; narrowly interprets ORS 166.220(l)(a).	Yes; use includes threat of immediate use.
Did the trial court err in denying MJOA and not giving defendant’s instruction?	State argues Ziska/Garza forecloses defendant’s argument.	Defendant argued for instruction clarifying “use” requires intent to injure.	Trial court did not err; instruction correctly rejected.
Was the imposition of the $470 attorney fees proper given inability to pay?	State bears burden to show ability to pay under ORS 151.505(3).	No ability to pay evidenced; imposition was improper.	Attorney fees improper; record shows no ability to pay; reversed.
Was the $1,500 compensatory fine proper given lack of clear ability-to-pay evidence but non-plain-error status?	Fine under ORS 161.645 requires consideration of resources.	No evidence defendant could pay; plain error not shown.	No plain error; court could consider resources; fine affirmed.

State v. Ziska/Garza, 355 Or 799, 334 P.3d 964 (2014) (Supreme Court (2014)) (use includes threat of immediate harm under ORS 166.220(l)(a))
State v. Branch, 208 Or App 286, 144 P3d 1010 (2006) (Or. App. 2006) (instruction error reversible if correct law and evidence support)
State v. Cunningham, 320 Or 47, 880 P2d 431 (1994) (Or. 1994) (standard for reviewing acquittal on appeal)
State v. Olive, 259 Or App 104, 312 P3d 588 (2013) (Or. App. 2013) (legal-error standard for statutory interpretation review)
State v. Wheeler, 268 Or App 729, 344 P3d 57 (2015) (Or. App. 2015) (plain-error review of compensatory fines distinct from attorney fees)
State v. Coverstone, 260 Or App 714, 320 P3d 670 (2014) (Or. App. 2014) (set framework for plain-error review and correction discretion)