State v. Cesario

PER CURIAM Defendant appeals his conviction and sentence for carrying a deadly weapon with intent to use it unlawfully. He argues, inter alia, that the trial court erred in imposing the minimum mandatory statutory sentence under ORS 161.610, because the indictment did not include the words “with a firearm” in the title.1 ORS 161.610(2) does not require inclusion of the words “with a firearm” in the title. It merely provides that the words “with a firearm” may be added to the title to indicate the aggravated nature of the crime. The legislative history submitted by the parties is consistent with this interpretation of ORS 161.610(2). The language of the charge in the indictment, that defendant did “possess a pistol * * * with intent to use it against another * * * and did attempt to use the weapon against her,” satisfies the provision of ORS 161.610(3) that, “if a defendant is convicted of a felony having as an element the defendant’s use or threatened use of a firearm during the commission of the crime, the court shall impose at least the minimum term of imprisonment * * Defendant’s other argument, that ORS 161.610 makes sense only when it is applied to a separate and distinct felony from that charged here, is specious. Affirmed. Footnotes [1] ORS 161.610(2) provides: “The use or threatened use of a firearm, whether operable or inoperable, by a defendant during the commission of a felony may be pleaded in the accusatory instrument and proved at trial as an element in aggravation of the crime as provided in this section. When a crime is so pleaded, the aggravated nature of the crime may be indicated by adding the words ‘with a firearm’ to the title of the offense. The unaggravated crime shall be considered a lesser included offense.”