895 P.2d 357 | Or. Ct. App. | 1995
Defendant moves for reconsideration of the portion of our opinion affirming his conviction for unlawful use of a weapon. 133 Or App 503, 892 P2d 697 (1995). We allow the motion, and as necessary for our discussion here, refer to the facts set out in our opinion.
We agree with defendant that we erred in stating that he did not challenge his conviction for unlawful use of a weapon. ORS 166.220.
The only other reference to the weapon conviction in defendant’s’brief was in the closing paragraph of his argument regarding hearsay testimony. He stated:
“The trial court erred when it admitted the hearsay evidence. The evidence was damaging to defendant’s claim of self-defense. Admitting the evidence was prejudicial error. Defendant’s conviction for manslaughter and unlawful use of a weapon should be reversed.”
In his motion for reconsideration, defendant for the first time provides the legal basis on which he relies for reversal of the weapon conviction:
“Self-defense is a defense to an unlawful use of a weapon. ORS 166.220(2)(b). The trial court’s error affected his conviction for unlawful use of a weapon to the same extent that it affected his conviction for manslaughter.”
There were two shooting incidents involved in this case, and the hearsay evidence that defendant claims warrants reversal of the weapon conviction relates to the second incident. There was evidence that, in the first incident, gunfire from a semi-automatic pistol came from the Cadillac in which defendant and McCallister were driving down the street. Three witnesses saw a gun barrel protruding out of the window of the Cadillac. Two of them testified that they saw muzzle flashes from the Cadillac and that at least one occupant of the Cadillac was shooting. There was evidence that Thompson shot back in response to the gunfire from the Cadillac. There was conflicting testimony. Defendant denied shooting in the first incident, and there was testimony that defendant was driving the Cadillac, that the barrel of a gun was protruding from the passenger side and that McCallister and defendant had gotten the guns after Thompson had shot at them in the first incident.
The indictment charging defendant with unlawful use did not limit the charge to the second incident, and defendant did not seek an instruction so limiting the charge.
Reconsideration allowed; opinion modified and adhered to as modified.
ORS 166.220(1) provides, in part:
“A person commits the crime of unlawful use of a weapon if the person:
cc* * * * *
“(b) Intentionally discharges a firearm, blowgun, bow and arrow, crossbow or explosive device within the city limits of any city or within residential areas within urban growth boundaries at or in the direction of any person, building, structure or vehicle within the range of the weapon without having legal authority for such discharge.”
The trial judge read to the jury the indictment, which restated the statutory language relating to unlawful use and which alleged that defendant,
“on or about December 14,1992, in the County of Multnomah, State of Oregon, did unlawfully and intentionally discharge a firearm within the city limits of the City of Portland, at or in the direction of a person within the range of said weapon without having legal authority for such discharge * *
Defendant has pointed to no instruction limiting the charge of unlawful use to the second incident, and our review of the video record reveals that the jury instruction on that charge essentially restated the statutory elements.
During closing arguments, the prosecutor stated that two shooting incidents took place, the first involving a gunfight on a residential street. He outlined for the jury why it should believe the evidence that, in the first incident, there was “gunfire from the Cadillac,” even though defendant claimed that he did not fire. The prosecutor argued that it “appears that the people from the Cadillac fired first.” Whether or not that was so, there was gunfire from both sides.