State v. Giron-Cortez, 519 P.3d 879

Defendant fired a handgun in a crowded Woodburn bar; the bullet entered his leg, ricocheted off his femur, and struck his cousin’s foot. Surveillance video showed him remove a loaded handgun from his waistband, hold it parallel to the floor, point it toward patrons, and the gun discharged as he returned it to his waistband.
Charges included felon in possession (ORS 166.270 + ORS 161.610), third-degree assault (ORS 163.165 + ORS 161.610), and multiple counts of recklessly endangering another person.
At trial the state’s case mainly consisted of bar surveillance footage; defendant moved for judgment of acquittal after the state rested, conceding recklessness but arguing insufficient proof of “extreme indifference” and insufficient proof of “use” of a firearm for the gun-minimum enhancement.
The trial court denied the judgment of acquittal, finding a factfinder could infer extreme indifference from defendant’s conduct and that the gun-minimum element was satisfied in the context of the reckless underlying offense.
On appeal defendant argued (1) the evidence did not show “extreme indifference,” (2) the state failed to prove he “used” a firearm, and (3) ORS 161.610 requires proof of a knowing mental state for the firearm element.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether evidence supported the “extreme indifference to the value of human life” element of third-degree assault (ORS 163.165(1)(c)).	Surveillance showed defendant holding and waving a loaded gun toward patrons and the gun discharged—conduct from which a factfinder could infer extreme indifference.	Conduct was at most reckless; his finger was not clearly on the trigger and he pointed the gun toward the ground.	Affirmed: Viewing evidence in state’s favor, a reasonable factfinder could infer extreme indifference.
Whether the gun-minimum element (“use or threatened use of a firearm,” ORS 161.610) was proved—i.e., whether defendant “used” a gun.	The discharge while handling/pointing the gun during the felony constitutes use.	Insufficient evidence of use; defendant did not knowingly use the firearm.	Affirmed: The discharge and handling shown on video sufficed to prove use.
Whether ORS 161.610 requires a culpable mental state, and if so which one (e.g., knowing).	ORS 161.610 operates as an element of the underlying felony and thus corresponds to that felony’s mental state; here the underlying crime requires recklessness.	The gun-minimum requires proof of a knowing mental state (or no mental state should apply).	Held: ORS 161.610 requires a culpable mental state—the one applicable to the underlying offense (reckless here); not a freestanding knowing requirement.

PGE v. Bureau of Labor & Indus., 317 Or 606 (1993) (statutory interpretation framework used to determine legislative intent)
State v. Carlisle, 370 Or 137 (2022) (applies PGE/Gaines framework to statutory interpretation)
State v. Gaines, 346 Or 160 (2009) (statutory interpretation principles for criminal statutes)
State v. Simonov, 358 Or 531 (2016) (ORS 161.115(1) applies an explicit mental state to all material elements)
State v. Wedge, 293 Or 598 (1982) (gun-minimum functions as an element that effectively creates a new aggravated offense)
State v. Flores, 259 Or App 141 (2013) (gun-minimum’s proscribed conduct is expressly designated an element)
State v. Warner, 52 Or App 987 (1981) (legislative purpose of mandatory minimums to protect society from firearms during felonies)
State v. Boone, 294 Or 630 (1983) (extreme indifference may be inferred from defendant’s conduct)
State v. Forrester, 203 Or App 151 (2005) (extreme indifference denotes caring little about risk of death)