State v. Smith

"Use" in ORS 166.220(1)(a) includes both the actual use of physical force and the threat of immediate use of physical force.

Defendant appealed his conviction for two counts of unlawful use of a weapon, and the trial court’s imposition of a fine and attorney fees. Defendant argued that the trial court wrongly interpreted the meaning of the word “use,” claiming that a person does not unlawfully “use” a weapon when simply using the weapon to threaten another person. The Court found that the trial court did not error because the Supreme Court that the threat of immediate force is sufficient to satisfy the use requirement. Defendant also assigned error to the imposition of a fine and attorney fees by arguing that the record did not demonstrate his ability to pay those fees. Although Defendant’s argument about the fine and attorney fees was unpreserved, The Court concluded that the trial court plainly erred by imposing attorney fees without evidence of his ability to pay and exercised their discretion to correct the error. Portion of the judgment requiring Defendant to pay attorney fees reversed; otherwise affirmed.