State v. Giron-Cortez ( 2022 )

274
Argued and submitted April 11, affirmed October 5, 2022, petition for review
allowed March 9, 2023 (370 Or 822)
See later issue Oregon Reports
STATE OF OREGON,
Plaintiff-Respondent,
v.
DENNIS GIRON-CORTEZ,
Defendant-Appellant.
Marion County Circuit Court
19CR58813, 14C41397, 17CR58804;
A173814 (Control), A173815, A173813
519 P3d 879
Defendant appeals from a judgment of conviction for third-degree assault
with a firearm, ORS 163.165 and ORS 161.610. He argues that the state failed to
present sufficient evidence that he acted recklessly, “under circumstances man-
ifesting extreme indifference to the value of human life,” as required under ORS
163.165(1)(c). He also argues that the trial court erred when it concluded that
the “use or threatened use of a firearm” element of the gun-minimum statute,
ORS 161.610, did not require a culpable mental state, and when the court found
that the state had presented sufficient evidence that defendant had “used” a gun.
Held: The trial court did not err. Evidence in the record demonstrated that a fact-
finder could reasonably have concluded that defendant’s actions in holding and
waving a loaded gun in a crowded bar demonstrated extreme indifference to the
value of human life. As to the gun-minimum statute, ORS 161.610 does require
that the state prove a culpable mental state. That mental state will depend on
the underlying charge to which ORS 161.610 is attached. Here, the underlying
charge required a mental state of reckless, and the state introduced legally suffi-
cient evidence to prove that mental state.
Affirmed.
Lindsay R. Partridge, Judge.
David O. Ferry, Deputy Public Defender, argued the
cause for appellant. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Susan G. Howe, Assistant Attorney General, argued
the cause for respondent. Also on the brief was Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Cite as 322 Or App 274 (2022) 275
Before Powers, Presiding Judge, and Lagesen, Chief Judge,
and Hellman, Judge.
HELLMAN, J.
Affirmed.
276 State v. Giron-Cortez
HELLMAN, J.
Defendant was convicted of third-degree assault
with a firearm, ORS 163.165 and ORS 161.610, after defen-
dant fired a gun in a crowded bar and the bullet struck
defendant’s cousin after passing through defendant’s leg.
On appeal from the judgment of conviction he raises three
assignments of error. In his first assignment of error, defen-
dant argues that the state failed to present sufficient evi-
dence that he acted recklessly with “extreme indifference
to the value of human life,” as required to convict him of
third-degree assault under ORS 163.165(1)(c). In his second
assignment of error, defendant argues that the state failed
to present sufficient evidence that he “used” a firearm as
required by the gun-minimum statute, ORS 161.610. In his
third assignment of error, defendant argues that the trial
court was required to apply a “knowing” mental state under
ORS 161.610. In response to defendant’s third assignment
of error, the state argues that it was not required to satisfy
any mental state for ORS 161.610 to apply.
For the following reasons we conclude that the trial
court did not err when it denied defendant’s motions for
judgment of acquittal. Further, we conclude that the gun-
minimum statute, ORS 161.610, does require a mental state.
However, we reject defendant’s argument that the mental
state is “knowingly.” Because ORS 161.610 functions as an
element of a separately charged offense, the mental state
required is that of the underlying offense to which the gun
minimum is charged. Here, the required mental state was
reckless, and the state presented legally sufficient evidence
to satisfy that mental state. Accordingly, we affirm.
We state the facts relevant to defendant’s motions
for judgment of acquittal in the light most favorable to the
state. State v. Downing, 276 Or App 68, 70, 366 P3d 1171
(2016).
On the night of the charged assault, surveillance
footage from a bar in Woodburn showed defendant seated
with two other men at a high-top table. Another man stood
next to defendant’s angled chair, conversing with him.
Defendant sat facing most of the other 20 or so patrons in
the bar, and a handful were seated to the left of defendant.
Cite as 322 Or App 274 (2022) 277
Defendant spoke animatedly with the men around
his table, gesturing frequently with his hands. During the
conversation, defendant appeared to mime the rapid firing
of a gun with his hands. About 30 seconds later, defendant
lifted up his shirt and removed a handgun from his waist-
band, which appeared to be elastic. He held the gun in his
right hand, parallel to the floor, with his thumb on one side
of the handle and the rest of his fingers supporting the
gun. The gun’s barrel was pointing toward the victim while
defendant showed the gun to the man standing next to him.
As defendant brought the gun back toward his waist band,
he held the gun with both hands, and the gun discharged.
Defendant quickly put the gun back in his waistband.
Police later determined that the bullet had entered
defendant’s left leg, ricocheted off of his thigh bone, and
went through the victim’s foot.
Defendant was charged with one count of felon in
possession of a firearm, ORS 166.270 and ORS 161.610,
one count of third-degree assault, ORS 163.165 and ORS
161.610, and 10 counts of recklessly endangering another
person, ORS 163.195.
At the conclusion of the state’s case, which largely
consisted of the bar’s surveillance footage, defendant
moved for a judgment of acquittal on the third-degree
assault charge and the associated gun-minimum element.
Defendant conceded that there was sufficient evidence that
his conduct was reckless, but he argued that the evidence
was insufficient to demonstrate that defendant’s handling
of the gun manifested the “extreme indifference” element of
third-degree assault.
Defendant also argued that the state presented
insufficient evidence to satisfy the gun-minimum element,
which requires that defendant use or threaten to use a fire-
arm during a felony. Defendant argued that the “use” of a
firearm was an element that required the state to prove that
defendant had acted “knowingly,” and that the state had
failed to do so.
The trial court denied defendant’s motions for judg-
ment of acquittal and determined that the state did not
278 State v. Giron-Cortez
have to prove that defendant knowingly fired the gun to sat-
isfy the gun minimum. Instead, the trial court evaluated
the gun minimum in “the context of the [c]ount” with which
it was charged. The trial court concluded that defendant
discharged the gun recklessly, and, because third-degree
assault required a reckless state of mind, that that state of
mind applied to the gun minimum as well.
Ultimately, the court convicted defendant of all
charges except for two of the counts of recklessly endanger-
ing another person.
On appeal, defendant renews his arguments from
below. He challenges the trial court’s denial of his motions
for judgment of acquittal, arguing that there was insuffi-
cient evidence to satisfy the “extreme indifference” element
of third-degree assault or the “use” of a firearm requirement
of the gun-minimum element. He also argues that the trial
court erred in applying the gun minimum at all, contending
that the gun minimum always requires proof of a “knowing”
mental state.
We review the denial of a motion for judgment of
acquittal to determine whether, viewing the evidence in
the light most favorable to the state, a factfinder could have
found that the essential elements of the offense were proved
beyond a reasonable doubt. State v. Alexander, 273 Or App
659, 662, 359 P3d 516, rev den, 358 Or 449 (2015).
Defendant’s first assignment of error focuses on the
“extreme indifference” element of third-degree assault. A
defendant commits third-degree assault as alleged here if
he “[r]ecklessly causes physical injury to another by means
of a deadly or dangerous weapon under circumstances man-
ifesting extreme indifference to the value of human life.”
ORS 163.165(1)(c). “Extreme indifference” is not defined by
statute, but our “case law has made clear that it refers to
a state of mind where an individual cares little about the
risk of death of a human being.” State v. Forrester, 203 Or
App 151, 156, 125 P3d 47 (2005), rev den, 341 Or 141 (2006)
(internal quotation marks omitted). A defendant’s extreme
indifference “may be inferred from his conduct at the time
of the event.” State v. Boone, 294 Or 630, 634, 661 P2d 917(1983).
Cite as 322 Or App 274 (2022) 279
Here, defendant argues that his conduct was, at
most, reckless. At oral argument before this court, defen-
dant argued that he only held the gun in his palm before
pointing it safely toward the ground and that defendant’s
finger was only possibly near the trigger at the time the gun
discharged and was blocked from view by the table.
After review of the record in this case, including
surveillance of the incident from two different angles, we
reject defendant’s characterization of his handling of the
gun as the only possible conclusion to be drawn from the
evidence. A factfinder could reasonably conclude that defen-
dant’s fingers were near the trigger of a loaded gun as he
brought the gun above the table and moved the gun around
so that it pointed at multiple people. That is legally sufficient
to establish extreme indifference to the value of human life.
The trial court did not err in determining that defendant
committed third-degree assault.
In defendant’s combined arguments for his second
and third assignments of error, he argues that the trial court
erred when it concluded that the “use or threatened use of a
firearm” element of the gun minimum did not require a cul-
pable mental state and when it found that the state had pre-
sented sufficient evidence that defendant had used a gun.
Defendant argues that the state was required to prove that
he “knowingly” used a gun. The state argues, in response,
that the gun minimum falls outside of the Oregon Criminal
Code (OCC) and that the gun minimum as contained in
ORS 161.610 clearly indicates a legislative intent to dispose
with any culpable mental state at all. Neither position is
correct. Instead, as we explain below, ORS 161.610 does
require that the state prove a culpable mental state. The
mental state in any given case will depend on the underlying
charge to which ORS 161.610 is attached. Here, the under-
lying charge had a mental state of reckless, and the state
introduced legally sufficient evidence to prove that mental
state.
We first address defendant’s contention that the
trial court “concluded that ‘use or threatened use of a
firearm’ does not require a culpable mental state.” After
review of the record, we agree that the trial court expressly
280 State v. Giron-Cortez
declined to apply a knowing mental state to the “use * * *
of a gun” element in the gun-minimum statute, but we dis-
agree that the trial court concluded no culpable mental
state applied to that element. When explaining its ruling,
the trial court clarified that it looked at the gun minimum
“in the context of the [c]ount that it’s charged with.” In the
context of the third-degree assault charge, the trial court
recognized that the required mental state was “reckless.” In
its oral verdict, the trial court found that the gun-minimum
element was satisfied as to the third-degree assault charge
because “clearly * * * the discharge of that weapon was done
recklessly.” Therefore, we undertake our review of the trial
court’s alleged error with the understanding that the trial
court concluded both that a mental state of reckless applied
to the gun-minimum element in this case and that the state
had satisfied that mental state.
The question of which culpable mental state applies
to the “use or threatened use of a firearm” element of ORS
161.610 presents a question of statutory interpretation that
we resolve by employing the analysis as set out in PGE v.
Bureau of Labor and Industries, 317 Or 606, 859 P2d 1143(1993), and State v. Gaines, 346 Or 160, 206 P3d 1042 (2009).
State v. Carlisle, 370 Or 137, 141, 515 P3d 867 (2022). Within
that framework, we examine the text and context of the par-
ticular provision at issue and consider any useful legislative
history in an ultimate effort to construe the statute to effec-
tuate the intent of the legislature. Id.; State v. Prophet, 318
Or App 330, 344, 507 P3d 735 (2022).
As relevant to defendant’s third-degree assault con-
viction, the gun-minimum statute provides:
“The use or threatened use of a firearm, whether opera-
ble 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.”
ORS 161.610(2) (emphasis added).
Cite as 322 Or App 274 (2022) 281
The culpability statutes, ORS 161.085 to 161.115,
provide a uniform statutory scheme to determine which cul-
pable mental states apply to elements of an offense. State
v. Owen, 369 Or 288, 295-96, 505 P3d 953 (2022). Under
those statutes, the state must prove that the defendant “acts
with a culpable mental state with respect to each material
element of the offense that necessarily requires a culpable
mental state.” ORS 161.095(2). That requirement generally
applies to all criminal offenses defined by a statute in the
Oregon Criminal Code. See generally ORS 161.005 (setting
forth a series of specific statutory provisions considered a
part of the OCC).
There is an exception to the mental state require-
ment for some statutes outside of the defined parameters of
the OCC. That exception provides:
“(1) Notwithstanding ORS 161.095, a culpable mental
state is not required if:
“* * * * *
“(b) An offense defined by a statute outside the Oregon
Criminal Code clearly indicates a legislative intent to dis-
pense with any culpable mental state requirement for the
offense or for any material element thereof.”
ORS 161.105(1)(b) (emphasis added).
Both defendant and the state premise their argu-
ments on the assumption that, because the gun minimum
contained in ORS 161.610 is not expressly listed in ORS
161.005, that exception in ORS 161.105(1)(b) governs our
analysis of the gun minimum’s required mental state. A
statute’s numbering, however, is not always determinative
where the legislature has otherwise indicated whether a
statute should be considered a part of the OCC. See State
v. Ruggles, 238 Or App 86, 90, 242 P3d 643 (2010), rev den,
349 Or 601 (2011) (concluding that the numbering of a stat-
ute appearing to be a part of the OCC was “illusory” where
other statutory language indicated the statute was intended
to be outside of the OCC).
The exception in ORS 161.105(1)(b) applies to “[a]n
offense * * * outside [of] the [OCC].” The criminal code defines
“offense” as “conduct for which a sentence to a term of
282 State v. Giron-Cortez
imprisonment or to a fine is provided by any law of this state
or by any law or ordinance of a political subdivision of this
state.” ORS 161.505.
The gun minimum is not a standalone “offense.” A
defendant cannot be charged with violating ORS 161.610 on
its own. Nor is there a sentence attached to violating ORS
161.610 on its own. Instead, ORS 161.610 ensures that a
minimum sentence is served for underlying felonies where
the defendant either used or threatened to use a firearm.
State v. Harris, 174 Or App 105, 111, 25 P3d 404 (2001). We
have previously examined the nature of the gun-minimum
statute and explained that the proscribed conduct in the
statute—“use or threatened use of a firearm * * * during
commission of a felony”—“is expressly designated an ele-
ment” by the language of the gun minimum itself. State v.
Flores, 259 Or App 141, 147, 313 P3d 378 (2013), rev den,
354 Or 735 (2014). The gun minimum is therefore not an
“offense” outside of the OCC, but a statute that “in effect
creates a new crime” by adding an element to any existing
felony. State v. Wedge, 293 Or 598, 608, 652 P2d 773 (1982).
We therefore analyze the culpable mental state
applicable to the gun minimum in the only context in which
the statute operates, as an element of a charged felony
that the state must prove beyond a reasonable doubt. Here,
defendant challenges the gun minimum as an element of
his conviction for third-degree assault, which provides that
a defendant commits the offense when he:
“Recklessly causes physical injury to another by means
of a deadly or dangerous weapon under circumstances
manifesting extreme indifference to the value of human
life.”
ORS 163.165(1)(c). The gun minimum requiring that the
state prove defendant “use[d] or threatened use of a firearm”
then becomes an additional element, creating an aggravated
version of that offense. ORS 161.610(2).
When analyzing which culpable mental state
applies to an element, we use the statutory guidelines as a
useful first step. The default rules provided by the legisla-
ture “differ depending on whether a criminal statute con-
tains an explicit mental state, governed by ORS 161.115(1),
Cite as 322 Or App 274 (2022) 283
or not, governed by ORS 161.115(2).” Prophet, 318 Or App
at 335. If the statute defining an offense contains a mental
state but does not specify the element to which it applies,
that mental state “applies to each material element of the
offense.” ORS 161.115(1); State v. Simonov, 358 Or 531, 538,
368 P3d 11 (2016).
Here, the “new crime” created by aggravating third-
degree assault with the gun minimum contains the reck-
less mental state. Third-degree assault as set forth in ORS
163.165(1)(c) does not specify which elements the reckless
mental state applies to, so, applying ORS 161.115(1), we con-
clude that it applies to every material element in the offense,
including the element of the gun minimum requiring that
defendant “use” a firearm.1
That conclusion is consistent with other evidence of
legislative intent. The plain text of the gun-minimum stat-
ute provides that the use of a firearm can be used in aggra-
vation of “a felony.” ORS 161.610(2). Accordingly, the statute
applies to any felony charge where the use or threatened
use of a firearm aggravates the offense committed. State v.
Gilbert, 99 Or App 116, 119, 781 P2d 389 (1989). By tying the
mental state required for the gun-minimum element to the
mental state required for the underlying felony, the plain
text of the statute is fulfilled.
By arguing that the state must prove the gun-
minimum element was committed with a knowing mental
state, defendant would require that the state prove a higher
mental culpability for a single element in instances when
the gun minimum is applied to a felony with a lower mental
culpability requirement—such as the reckless mental cul-
pability required for third-degree assault. That would be
inconsistent with the plain language of the gun-minimum
statute, which does not restrict the minimum’s application
to felonies of a specific level of culpability. Concluding that
the gun minimum was essentially applicable only to felonies
1
Because the offense at issue contains a mental state, we do not address
defendant’s argument that the “use” of a firearm should be considered a “conduct”
element rather than a “circumstance” element. That distinction in classification
is used as an additional tool to determine the legislature’s intended culpable
mental state where the statute does not otherwise provide a mental state. ORS
161.115(2); Simonov, 358 Or at 540.
284 State v. Giron-Cortez
of a knowing mental state or greater would require us to
insert a requirement that is not present in the statutory
text. See ORS 174.010 (explaining that we cannot “insert
what has been omitted” from the text of a statute).
When previously examining the purpose of the gun
minimum, we have determined that “[t]he legislative pur-
pose is clearly to provide for a mandatory minimum prison
term whenever a firearm is used, or its use threatened,
during the commission of a felony.” State v. Warner, 52 Or
App 987, 992, 630 P2d 385, rev den, 291 Or 662 (1981). More
broadly, the purpose of the mandatory minimum is “to pro-
tect society.” Id. at 995.
“The statute recognizes that a person who uses or threat-
ens to use a firearm during the commission of a crime is
a more dangerous individual than a person who does not.
The intent of the law is to insure that society is insulated
from such persons, at least for a certain period of time.”
Id.
The statute recognizes that felonies committed
with a firearm are inherently more dangerous than felonies
committed without a firearm. A firearm is a deadly weapon
whether or not it is fired “recklessly” or “knowingly.” A per-
son who recklessly shoots someone during the commission of
a felony causes the same harm and outcome as someone who
intentionally pulls the trigger. We have not been presented
with any evidence that the legislature intended to apply the
gun minimum differently to those who are careless enough
with a deadly weapon to shoot someone accidentally.
Here, the state presented sufficient evidence for
a factfinder to conclude that defendant committed third-
degree assault and recklessly used a firearm. Accordingly,
the trial court did not err in denying defendant’s motions for
judgment of acquittal or in applying the gun minimum to
that charge. We affirm.
Affirmed.