State v. Linthwaite

• Decision Date: 21 June 1983
• Citation: 295 Or. 162,665 P.2d 863
• Parties: STATE of Oregon, Respondent on Review, v. Kenneth Richard LINTHWAITE, Petitioner on Review. CA 18242, CA 18247; SC 28017. CA 18243, CA 18244; CA 18245. CA 18246. . *
• Court: Oregon Supreme Court

Page 863

665 P.2d 863

295 Or. 162

STATE of Oregon, Respondent on Review, v. Kenneth Richard LINTHWAITE, Petitioner on Review.

CA 18242, CA 18247; SC 28017.

CA 18243, CA 18244; CA 18245.

CA 18246.

Supreme Court of Oregon In Banc. ^*

Argued and Submitted Dec. 7, 1981.

Decided June 21, 1983.

Thomas J. Crabtree, Deputy Public Defender, argued the cause for petitioner on review. With him on the brief was Gary D. Babcock, Public Defender, Salem. On the brief in the Court of Appeals was Dennis D. James, Grants Pass.

Thomas H. Denney, Asst. Atty. Gen., argued the cause for respondent on review. With him on the brief in the Court of Appeals were James M. Brown, Atty. Gen., John R. McCulloch, Jr., Sol. Gen., and William F. Gary, Deputy Sol. Gen., Salem.

LENT, Chief Justice.

A poorly drafted statute and a confusing trial and appellate history leave this court with two issues to resolve. The first issue is whether ORS 166.220(1) prohibiting attempted use of a dangerous knife requires a victim in order for there to be a crime. That subsection provides:

"Any person who attempts to use, or who with intent to use the same unlawfully against another, carries or possesses a dagger, dirk, dangerous knife, razor, stiletto, or any loaded pistol, revolver or other firearm, or any instrument or weapon of the kind commonly known as a blackjack, slung shot, billy, sandclub, sandbag, metal knuckles, nunchaku sticks, bomb or bombshell, or any other dangerous or deadly weapon or instrument, commits a Class C felony."

Second, if a victim is required, and if there are multiple convictions arising from the same act or transaction ¹ of an attempt to use the knife against four victims, can the defendant be sentenced to more than one term of five years? ² Those issues arise out of the following course of events.

On February 26, 1980, in a public park in Grants Pass, Oregon, defendant operated a motor vehicle so as nearly to collide with a parked car. There followed a confrontation between defendant and several members of the family who owned the car, and a bystander. Defendant produced a knife and brandished it threateningly at three family members and at the bystander. Defendant also kicked and damaged the parked car and smashed a camera belonging to a family member.

The state brought 17 charges against defendant, ranging from Attempted Assault in the First Degree to Reckless Driving. ³ He was tried on 14 charges and, through jury mistake, found guilty of 16 charges. ⁴ The indictments which charged the four respective violations of ORS 166.220(1) alleged that the defendant was guilty of the offense of "ATTEMPTING TO USE A DANGEROUS WEAPON" in that he did "unlawfully and knowingly attempt to use a dangerous knife or other dangerous or deadly weapon against" each of four persons. These four charges were the most serious of which defendant was convicted.

THE NATURE OF THE CRIME

A day before the time set for sentencing, the defendant filed what he termed a "NOTICE OF MERGER," by which he informed the trial court that he intended to assert the legal argument that there should be but one sentence for all four convictions. On the day of sentencing he filed with the trial court a memorandum in which he argued that ORS 166.220(1) did not require that there be a victim as an object of the attempt prohibited by that statute. He asserted:

"The Defendant has been convicted of four counts of violating ORS 166.220. The Defendant submits that there has been but one criminal act and, therefore, there should only be one criminal sentence. The State has charged four counts of violations of ORS 166.220 because there were four separate victims; however, ORS 166.220 does not require that there be a victim to complete the elements of the crime. The crime is complete without a victim.

"The State cannot exact four separate sentences by naming four separate victims of a single act of carrying, possessing, or attempting to use a dangerous weapon. Therefore, the Court should find but one conviction for sentencing and merge all other counts into that one conviction."

He raised the same argument orally before the sentencing judge, but the judge rejected the argument and sentenced defendant to four terms of five years each to run consecutively.

Upon appeal to the Court of Appeals, defendant's pertinent assignment of error was in part as follows:

"The trial court erred in sentencing Defendant without allowing the merger of all four counts of Attempting to Use a Dangerous Weapon into one conviction and sentence * * *."

In his brief he argued:

"[H]e is charged with attempting to use a dangerous weapon. There is no victim necessary to the intent to commit this crime. Therefore, the act of attempting to use a dangerous weapon is unitary in nature. It cannot be divided according to the number of victims present at that time."

In both the trial court and the Court of Appeals, defendant was arguing that the text of the statute does not require that there be a victim of the attempt. Neither the majority nor dissenting opinion in the Court of Appeals directly addressed this argument. In holding that the "multiple sentences were authorized," the majority answered the argument only as follows:

"While Attempting to Use a Dangerous Weapon is classified among firearms offenses, ORS 166.180 et seq., rather than among assault and related offenses, ORS 163.160 et seq., there can be little doubt that each attempted use of a weapon against a different person is a separate offense. Had defendant been charged with violating ORS 166.220 in the other way that statute may be violated, i.e., by merely carrying a dangerous weapon with intent to use it but not in fact using or attempting to use it, there might be some merit to his contention that there is no victim involved in the crime and, hence, only one offense was committed no matter how many persons he may have intended to injure. See State v. Perkins [45 Or.App. 91, 607 P.2d 1202], supra. Here, defendant was charged in four counts with having attempted to use a weapon against four separate persons. The jury of necessity found that the weapon was specifically directed against each of those four persons. The entry of four convictions for Attempting to Use a Dangerous Weapon was therefore proper."

State v. Linthwaite, 52 Or.App. at 522, 628 P.2d 1250. The opinion ignores the argument that the text of the statute may be read as not requiring an attempt to use a dangerous weapon against a person; the opinion assumes that the act prohibited by the statute is the attempt to use a dangerous weapon against a person.

The text of the statute does not permit one to move so quickly to the conclusion that a victim is required. Reducing the text of the statute by eliminating the list of weapons not relevant to this case produces the following:

"Any person who attempts to use, or who with intent to use the same unlawfully against another, carries or possesses a * * * dangerous knife * * * commits a Class C felony."

The text literally describes two different criminals:

(1) Any person who attempts to use a dangerous knife.

(2) Any person who carries or possesses a dangerous knife with intent to use the same unlawfully against another.

The second crime is complete if the actor carries or possesses the weapon with intent to use it unlawfully against another. The first crime, by the text, proscribes nothing more than an attempt to use the weapon. The text does not require that the attempted use be unlawful, or that the attempted use be against a person or property, or even that there be an attempt to use the knife as a weapon. The text would make one guilty of a Class C felony if he attempts to use a dangerous or deadly weapon as a paperweight, or a dangerous knife to cut a roast, for example.

The defendant has consistently urged that since the text of the statute does not require that the attempted use be against a person, he can only be guilty of one crime by threateningly brandishing the knife, no matter how many people might be present. Under a literal reading of the text of the statute his position has merit. The answer of the Court of Appeals seems to be that because the prosecutor charged that defendant did attempt to use the knife against each of four persons, and the jury found accordingly, the definition of the crime was somehow changed. That is to miss the mark. The first order of business is to determine whether the statute is to be construed so as to require that there be a person who is the object of the attempted use as an element of the crime.

The statute was enacted as Oregon Laws 1917, chapter 377, section 7. The title ⁵ of chapter 377 was as follows:

"Prohibiting the manufacture, sale, possession, carrying, or use of any blackjack, slungshot, billy, sandclub, sandbag, metal knuckles, dirk, dagger or stiletto, and regulating the carrying and sale of certain firearms, and defining the duties of certain executive officers, and providing penalties for violation of the provisions of this Act."

ORS 166.220, in pertinent part, does not differ from the statute as enacted in 1917.

The section was codified in 1920 as O.L. § 9687 and in 1930 as O.C.1930, § 72-113. Neither code compiler described the section as referring to an attempted use. Each compiler, by the bold face heading to the code section, opined that the section was concerned with the prohibition of carrying or possessing a dangerous weapon with the intent to use it. ⁶ Of course, the bold face heading is only the opinion of the code compiler as to the meaning of the statute; it is not part of the statute. Perhaps the compilers did not mention the "attempt" aspect because they were not sure as to the implications of the statute in that respect. Experience teaches, however, that crimes described in various sections of the code come to be popularly known and used in accusatory instruments by the bold face used by the compilers.

In 1940 the compiler of...