State v. Giron-Cortez

ORS 161.610 requires that the state show a mental state, in any given case, the mental state will depend on the underlying charge.

Defendant was convicted of third-degree assault with a firearm after he fired a gun in a crowded bar striking his cousin after the bullet passed through Defendant’s leg. Defendant argued the state failed to present evidence of extreme indifference, failed to present evidence that he “used” the firearm, and that the court was required to apply a “knowing” mental state to the gun-minimum charge. The State argued that the legislature intended to dispose of the mental state requirement with regard to the gun minimum contained in ORS 161.610. ORS 161.610 requires that the state show a mental state, in any given case, the mental state will depend on the underlying charge. The Court reasoned that the culpable mental state applicable to the gun minimum is that of the statute that it operates. The trial court correctly explained that it considered the context of the count which ORS 161.610 was attached to. The Court found the State successfully presented evidence against Defendant showing a reckless mental state. AFFIRMED.