Defendant appeals his judgment of conviction for two counts of unlawful use of a weapon (Counts 1 and 2), ORS 166.220(Ilia),
In reviewing the denial of a motion for judgment of acquittal, we view the evidence in the light most favorable to the state to determine whether any rational factfinder could have found all the elеments of the crime beyond a reasonable doubt. State v. Cunningham,
Defendant became upset with his wife and son when he discovered they went out to lunch without him. Defendant demanded the “food stamps card” from his wife and said that he wanted to wreck the only car that they owned. Defendant attempted to leave the apartment, but his son was concerned that defendant would hurt himself and wreck the car, so he stood in front of the doorway and did not move. Defendant charged at his son; hоwever, he was unable to get around him. Defendant went into his bedroom and retrieved a gun. He held a loaded .22-caliber revolver in his hand, cocked it, and pointed it upwards and back and forth at his wife and son. His hands were shaking and his finger was inside the trigger guard, though not on the trigger. When his wife handed him thе “food stamps card,” defendant uncocked the revolver, and threw it on the floor as he left the apartment.
At the time of the incident, defendant was unemployed. He also suffered from a number of medical conditions, including neuropathy in his feet, which affected his ability to stand fоr long periods of time without pain; synkinetic movement, which affected his balance; and degenerative arthritis.
Defendant was charged with unlawful use of a weapon (Counts 1 and 2), menacing constituting domestic violence (Counts 3 and 4), pointing a firearm at another (Counts 5 and 6), and recklessly endangering another person (Counts 7 and 8).
Before trial, defendant filed a proposed special jury instruction on the unlawful use of a weapon charge under ORS 166.122, stating that £££[u]se of a deadly weapon’ means to utilize the weapon in such a way that it could readily causе death or serious physical injury. Threatening to use a deadly weapon is not use of that weapon.”
After the state rested its case, defendant made a motion for judgment of acquittal (MJOA) on the two counts of unlawful use of a weapon, arguing that the evidence that the statе presented only showed that defendant threatened to use the weapon, “[that] he held it in his hand and waved it around. And that is not actual use.” The trial court denied his MJOA. After the close of the evidence, the trial court declined to give defendant’s proposed special jury instruсtion and instructed the jury that “‘use or threatened use’ refers to discharge or threatened discharge of a firearm.”
Ultimately, defendant was convicted of unlawful use of a weapon (Counts 1 and 2), among other crimes not at issue on appeal. Defendant was sentenced tо imprisonment for five years and two years post-prison supervision. As part of the sentence on Count 2, the trial court ordered defendant to pay a $1,500 fine and $470 in attorney fees. Defendant did not object to the imposition of the fine and attorney fees.
We begin with defendant’s assignments of error related to his convictions for unlawful use of a weapon. Because our decision turns on the trial court’s interpretation of a statute — ORS 166.220(l)(a) — we review for legal error. State v. Olive,
Defendant contends that the trial court erred in denying his MJOA, failing to give the jury defendant’s speсial jury instruction, and entering a verdict on two counts of unlawful use of a weapon under ORS 166.220(l)(a). Defendant argues that, under ORS 166.220(l)(a), he did not unlawfully “use” a weapon because he merely intended to threaten to use the weapon against the victims, and did not intend to harm the victims
In Ziska!Garza, consolidаted for purposes of opinion and decided after the appellate briefs in this case were filed, the Supreme Court rejected the defendant’s contention “that using a weapon merely to threaten another person does not constitute ‘use’ of a weapon within the meaning of ORS 166.220(l)(a).”
Similarly, here, defendant held a loaded .22-caliber revolver in his hand, cocked it, and threatened his wife and son, by pointing the revolver upwards and back and forth at them. Accordingly, we reject defendant’s arguments that the trial court erred in denying his MJOA, failing to give his proposed jury instruction, and entering convictions for two counts of unlawful use of a weapon related to the trial court’s interpretation of ORS 166.220(l)(a). See State v. Branch,
Next, we turn to defendant’s аssignments of error regarding the imposition of the fine and attorney fees. Defendant contends that the trial court erred when it ordered defendant to pay a $1,500 fine and $470 in attorney fees on Count 2. Defendant concedes that he did not object to the imposition of the fine and аttorney fees; thus, the issue is unpreserved. However, defendant requests that we review the issue as plain error. ORAP 5.45(1). Specifically, defendant argues that trial court plainly erred because it is not authorized to impose a fine if there is no evidence that the defendant is able to pay under ORS 161.645,
The state responds that the trial court did not commit plain error when it ordered defendant to pay the fine and attorney fees, and even if we conclude that the trial court plainly erred, we should not exercise our discretion to correct the error.
There are three requirements for plain error review: “(1) the error must be an error of law; (2) it must be ‘apparent,’ in that the ‘legal point is obvious, not reasonably in disрute’; and (3) it must appear on the record such that ‘[w]e need not go outside the record or choose between competing inferences to find it, and the facts that comprise the error are irrefutable.’” State v. Coverstone,
We conclude that the trial court’s imposition of a compensatory fine under ORS 161.645, is not susceptible to plain-error review. State v. Wheeler,
“ORS 161.645 — unlike ORS 151.505(3) *** governing the recoupment of attorney fees *** — does not condition the court’s authority to impose a fine as part of a defendant’s sentence on whether the defendant ‘is or may be able to pay’ it. Rather, the statute requires only that the court consider the defendant’s financial resources in deciding whether to include a fine (and its amount) in the defendant’s sentence.”
Here, thе record contains no evidence that defendant has the financial resources to enable him to pay the fine. However, the record does not establish that the court failed to consider defendant’s ability to pay. As a result, the legal error, if any, is not apparent on the record. Brown,
Contrary to ORS 161.645, under ORS 151.505(3), the state bears the burden of proving that defendant “is or may be able to pay” attorney fees, and we have held that it is plain error for the trial court not tо comply with the requirement that it find that a defendant has the ability to pay attorney fees before it imposes them. Coverstone,
Here, the record shows that the state did not meet its burden of demonstrating that defendant was able to pay the attorney fees. The record is silent as to defendant’s ability to pay the attorney fees ordered by the court. During the trial, unrelated to defendant’s ability to pay, defendant established that at the time of the incident he was unemployed and suffered from a number of medical conditions. The record also shows that at the time of the inсident, defendant was receiving food assistance from the state. Even with that information, it is apparent from the record that the state failed to present evidence of defendant’s ability to pay, therefore, the trial court erred when it concluded that defendant was able to pay the attorney fees.
In light of that conclusion, we must determine whether it is appropriate for us to exercise our discretion to correct the error. Coverstone,
For the reasons that follow, we exercise our discretion to correct the error in this case. Here, the error is grave because $470 in attorney fees is a substantial amount given that defendant was apparently unable to work and he was sentenced to five years’ imprisonment, which prevents earning any substantial income. See, e.g., State v. Hunt,
In sum, the trial court did not err in convicting defendаnt of unlawful use of a weapon under ORS 166.220(l)(a) or in failing to give defendant’s proposed instruction, because “use,” as used in that statute includes the threat of immediate use of physical force. Ziska/Garza,
Portion of the judgment requiring defendant to pay attorney fees reversed; otherwise affirmed.
Notes
OES 166.220(l)(a) provides, in relevant part:
“A person commits the crime of unlawful use of a weapon if the person:
“(a) Attempts 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 [.]”
Defendant’s first four assignments of error turn on whether the trial court properly interpreted the meaning of the word “use” in ORS 166.220(l)(a). Specifically, defendant contends that the court erred as follows: (1) denying his motion for judgment of acquittal on Counts 1 and 2; (2) refusing to give a requested jury instruction; (3) failing to instruct the jury that proof of intent to physically injure another with a dangerous weapon is required; and (4) entering a judgment convicting him of two counts of unlawful use of a weapon.
ORS 161.645 provides:
“In determining whether to impose a fine and its amount, the court shall consider:
“(1) The financial resourcеs of the defendant and the burden that payment of a fine will impose, with due regard to the other obligations of the defendant; and
“(2) The ability of the defendant to pay a fine on an installment basis or on other conditions to be fixed by the court.”
OKS 151.505(3) provides:
“The court may not require a person to pay costs under this section unless the person is or may be able to pay the costs.”