State v. Giron-Cortez

No. 33 September 26, 2024 729

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

v.

DENNIS GIRON-CORTEZ,

Petitioner on Review.

(CC 19CR58813, 14C41397, 17CR58804)

(CA A173814 (Control), A173813, A173815) (SC S069941)

En Banc

On review from the Court of Appeals.*

Argued and submitted September 12, 2023.

David Ferry, Deputy Public Defender, Office of Public

Defense Services, Salem, argued the cause and filed the

brief for petitioner on review. Also on the brief was Ernest

G. Lannet, Chief Defender, Criminal Appellate Section.

E. Nani Apo, Assistant Attorney General, Salem, argued

the cause and filed the brief for respondent on review. Also

on the brief were Ellen F. Rosenblum, Attorney General, and

Benjamin Gutman, Solicitor General.

MASIH, J.

The decision of the Court of Appeals is reversed. The

judgment of conviction is reversed in part, and the case

is remanded to the circuit court for entry of conviction for

the lesser-included offense of fourth-degree assault under

ORS 163.160(1)(a) and for resentencing consistent with this

opinion.

James, J., dissented and filed an opinion, in which

Bushong, J., joined.

______________

*

Appeal from Marion County Circuit Court, Lindsay Partridge, Judge. 322

Or App 274, 519 P3d 879 (2022).

730 State v. Giron-Cortez

Cite as 372 Or 729 (2024) 731

MASIH, J.

A person commits the crime of assault in the third

degree under ORS 163.165(1)(c) by “[r]ecklessly caus[ing]

physical injury to another by means of a deadly or dangerous

weapon under circumstances manifesting extreme indiffer-

ence to the value of human life.” In this case, we consider the

meaning of the “extreme indifference” element of that crime.

Following a bench trial, the trial court concluded

that defendant acted recklessly with “extreme indiffer-

ence to the value of human life” based on evidence that he

brought a loaded handgun to a crowded bar, displayed the

handgun flat in the palm of his hand with no fingers on the

trigger while the barrel faced in the general direction of oth-

ers, and then unintentionally discharged the gun as he put

it back in his waistband with the barrel pointed downward.

The bullet hit defendant in the leg and ricocheted into his

cousin’s foot, causing physical injury. Defendant appealed,

arguing that the trial court should have granted his motion

for judgment of acquittal (MJOA) for third-degree assault

because his conduct—which he concedes was reckless—did

not meet the legal standard for “extreme indifference to the

value of human life.” The Court of Appeals disagreed and

affirmed. State v. Giron-Cortez, 322 Or App 274, 519 P3d 879

(2022). Defendant then sought review in this court, which

we allowed.

As we will explain, there is no dispute that this case

involves reckless conduct with a deadly weapon. However,

the text, context, and legislative history of ORS 163.165(1)(c)

indicate that the legislature did not intend for all reckless

use of a deadly or dangerous weapon to constitute “extreme

indifference to the value of human life.” Rather, the legis-

lature associated “extreme indifference” with conduct that

presents a greater risk to the lives of others than the “sub-

stantial and unjustifiable risk” posed by ordinary reckless-

ness and intended the requirement to apply to only the most

serious forms of life-endangering conduct. In the context of

firearms, the legislature associated “extreme indifference”

with conduct such as shooting a firearm in the direction and

range of other people or, at least, as relevant here, conduct

that materially increases the risk of an accidental discharge

732 State v. Giron-Cortez

in the direction and range of others beyond the risk inherent

in handling and displaying a loaded gun.

As a matter of law, the conduct in this case falls

short of the “extreme indifference” standard. Accordingly,

we reverse the decision of the Court of Appeals, reverse

in part the judgment of conviction of the trial court, and

remand for entry of conviction for the lesser-included offense

of fourth-degree assault under ORS 163.160(1)(a) and for

resentencing consistent with this opinion.1

I. FACTUAL BACKGROUND

Because the issue on review arises from the trial

court’s denial of defendant’s MJOA, we describe the facts in

the “light most favorable to the state” to determine whether

the state presented sufficient evidence from which a rational

factfinder, making reasonable inferences, could find the

elements of the crime beyond a reasonable doubt. State v.

Hedgpeth, 365 Or 724, 730, 452 P3d 948 (2019).

Surveillance footage (without audio) introduced at

defendant’s trial showed defendant at a bar with approxi-

mately 20 other patrons on the night of the charged assault.

He was seated at a high-top table with two other people.

Defendant sat facing most of the other patrons in the bar,

and several patrons were seated nearby to defendant’s left.

Another man stood to the right of defendant’s chair, con-

versing with defendant. There were two empty pitchers and

three empty glasses on the table.

Defendant began speaking animatedly, gesturing

frequently with his hands. Approximately 30 seconds later,

defendant lifted up his shirt and removed a handgun from

his elastic waistband. For approximately seven seconds,

defendant held the handgun flat in the palm of his hand

for others to see. During that period, the barrel faced in the

general direction of others, including the ultimate victim.

1

Defendant raises two other issues on review that challenge the application

of the additional “use * * * of a firearm” element under ORS 161.610(2) to the

third-degree assault conviction, and the resulting sentencing enhancement. ORS

161.610(2) applies only to felonies. Because we remand for entry of conviction for

the lesser-included offense of fourth-degree assault—a misdemeanor—the fire-

arm enhancement provision does not apply and we need not address the remain-

ing issues.

Cite as 372 Or 729 (2024) 733

Even viewing the evidence in the light most favorable to the

state, however, defendant’s fingers were never on the trig-

ger during those seven seconds. As he brought the handgun

back toward his waistband, with the barrel pointed down

toward the floor and both hands on the handgun, defen-

dant’s fingers appear to move toward the trigger, and the

handgun discharged. Defendant quickly returned the hand-

gun to his waistband before collapsing, and then one of the

other people at the table with defendant appeared to take

the handgun and leave the bar. Police determined that the

bullet had entered defendant’s left leg, ricocheted off his

thigh bone, and gone through his cousin’s foot.

II. PROCEDURAL HISTORY

Defendant was charged with one count of third-

degree assault (involving the “use” of a firearm) under ORS

163.165(1)(c) and ORS 161.610(2), and with one count of felon

in possession of a firearm under ORS 166.270 and ORS

161.610(2).2 He was also charged with 10 counts of recklessly

endangering another person under ORS 163.195 (providing

that a person commits the crime of reckless endangerment “if

the person recklessly engages in conduct which creates a sub-

stantial risk of serious physical injury to another person”).

Defendant waived his right to a jury, and the case

proceeded to a bench trial. The state’s case primarily con-

sisted of the bar surveillance footage. After the state rested,

defendant combined his closing argument with an MJOA,

challenging the sufficiency of the state’s evidence on the

third-degree assault charge.3

As part of his MJOA, defendant did not dispute that

the evidence was sufficient to infer that his conduct was

2

Defendant was previously convicted of a felony. It is unlawful for “[a]ny

person who has been convicted of a felony under the law of this state or any other

state, or who has been convicted of a felony under the laws of the Government of

the United States” to own, possess, or have in the person’s custody or control any

firearm. See ORS 166.270 (describing the criminal offense of felon in possession

of a firearm).

3

The trial court construed defendant’s arguments during closing as an

MJOA, as do we. See State v. Gonzalez-Valenzuela, 358 Or 451, 454 n 1, 365 P3d

116 (2015) (agreeing “with the long-standing case law from the Court of Appeals

that,” when a defendant opts for a bench trial, a challenge to the legal sufficiency

of the state’s evidence during closing argument can be “the equivalent of a motion

for judgment of acquittal” for preservation purposes).

734 State v. Giron-Cortez

reckless or that he caused physical injury to another using a

deadly or dangerous weapon. He argued only that evidence

of the accidental discharge was insufficient to establish

that he acted recklessly “under circumstances manifesting

extreme indifference to the value of human life.”

The trial court disagreed and denied defendant’s

motion. Although the court found that defendant had unin-

tentionally fired the handgun, it nevertheless determined

that defendant had acted recklessly with “extreme indiffer-

ence.” The court emphasized that defendant had knowingly

possessed a firearm even though he was not allowed to do

so following his prior felony conviction. And the court noted

that the handgun had been loaded, that the bar had been full

of people, and that defendant had pulled out the handgun

to show it off. The court ultimately found defendant guilty

of third-degree assault (Count 2), eight counts of recklessly

endangering another person (Counts 3 through 10), and one

count of felon in possession of a firearm (Count 1). Defendant

was sentenced to 120 months in prison for the third-degree

assault count, a concurrent 30-month sentence for the felon

in possession of a firearm count, and a sentence of condi-

tional discharge on the reckless endangerment counts.4

Defendant appealed, renewing his challenge to the

sufficiency of the evidence. The Court of Appeals affirmed,

rejecting defendant’s characterization of his handling of the

handgun as merely “reckless.” Giron-Cortez, 322 Or App at

279. The court concluded that a factfinder could reasonably

conclude that defendant’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,” which

in turn was legally sufficient to establish extreme indiffer-

ence to the value of human life. Id.

Defendant sought review in this court, which we

allowed.5

4

On review, defendant does not challenge his convictions for reckless endan-

germent or felon in possession of a firearm. Our disposition in this case does

not disturb defendant’s convictions on those other aspects of the trial court’s

judgment.

5

Three cases were consolidated on appeal. One case involved defendant’s

judgment of conviction, and the other two cases involved the revocation of defen-

dant’s probation in two other cases. Although we allowed review of all three

Cite as 372 Or 729 (2024) 735

III. THE PARTIES’ ARGUMENTS

As noted, defendant concedes that he recklessly

caused physical injury using a deadly or dangerous weapon.

The only question is whether that conduct occurred under

circumstances demonstrating defendant’s extreme indiffer-

ence to the value of human life, as required for third-degree

assault under ORS 163.165(1)(c).

On review, defendant argues that “extreme indif-

ference to the value of human life” requires evidence that

his conduct created a “substantial likelihood” of causing

death and an “extreme lack of concern” about that likeli-

hood. Defendant maintains that the state must prove that

defendant disregarded a specific and genuine risk of killing

someone, and that that standard is established only when a

person “kill[s] or nearly kill[s] anyone.”

Defendant also urges us to focus on his conduct at

the precise time that the injury occurred—the discharge.

He contends that an accidental discharge of a handgun into

his own leg, while the barrel was beneath the table and

pointing down, cannot give rise to a finding of “extreme

indifference”—especially absent evidence demonstrating his

willingness to commit an “extremely dangerous act” such as

playing with the trigger, spinning the handgun, or inten-

tionally shooting into the crowd. And he argues that, even if

we consider his conduct immediately prior to the discharge,

including momentarily holding a loaded handgun so that it

recklessly pointed at others, that evidence is insufficient to

establish “extreme indifference.”

In the state’s view, it is not required to establish

that defendant’s conduct created a “substantial likelihood”

of death, because the “extreme indifference” analysis focuses

on the defendant’s disregard or lack of concern for the risk

that death might occur, rather than the actual likelihood

that a loss of human life will, in fact, occur. According to

the state, the inherent increased risk of serious injury or

death posed by firearms means that most cases involving

the reckless discharge of a firearm will at least present a

consolidated cases, defendant’s arguments on review challenge only his judg-

ment of conviction for third-degree assault. Our disposition in this case does not

disturb the trial court’s probation revocation judgments in the other two cases.

736 State v. Giron-Cortez

question of fact for the factfinder as to whether a defendant’s

conduct manifests “extreme indifference.” And the state dis-

agrees with defendant that the discharge is the only rel-

evant temporal moment for assessing defendant’s mental

state, instead arguing that defendant’s conduct is evaluated

in light of the surrounding circumstances.

IV. ANALYSIS

The parties dispute whether the trial court erred

when it denied defendant’s MJOA, having determined that

the evidence was sufficient to permit defendant’s conviction

for third-degree assault under ORS 163.165(1)(c). When we

consider whether a trial court erred in denying an MJOA,

our task is to determine whether the evidence, viewed in the

light most favorable to the state, was sufficient to find that

all the elements of the offense were satisfied. That task—

answering whether the state presented sufficient evidence

from which a rational trier of fact, making reasonable infer-

ences, could find the essential elements of the crime beyond

a reasonable doubt—is a legal one, for which we review the

trial court’s denial of the motion for errors of law. See State

v. Haley, 371 Or 108, 112, 531 P3d 142 (2023).

In this case, the parties’ dispute centers on the

meaning of one element of the offense—namely, whether

defendant acted with “extreme indifference to the value of

human life.” To resolve that dispute, we must determine the

meaning of the term “extreme indifference” as used in ORS

163.165(1)(c). That is a matter of statutory interpretation, for

which we employ the analytical framework described in PGE

v. Bureau of Labor and Industries, 317 Or 606, 859 P2d 1143

(1993), and modified in State v. Gaines, 346 Or 160, 206 P3d

1042 (2009). As with all questions of statutory interpreta-

tion, our “paramount goal” is to give effect to the intent of

the legislature as demonstrated by the text, context, and any

helpful legislative history. Gaines, 346 Or at 171-72; see also

ORS 174.020(1)(a) (“In the construction of a statute, a court

shall pursue the intention of the legislature if possible.”).

A. Text and Context

We begin by analyzing the statute’s text in context,

giving “primary weight to the text and context of the disputed

Cite as 372 Or 729 (2024) 737

statutory terms.” City of Portland v. Bartlett, 369 Or 606,

610, 509 P3d 99 (2022) (internal quotation marks omitted);

Gaines, 346 Or at 171-72. A statute’s context includes other

provisions of the same or related statutes. Ogle v. Nooth, 355

Or 570, 584, 330 P3d 572 (2014) (so stating).

As we will first explain, the statute’s text and context

indicate that the legislature did not intend for all reckless

use of a deadly weapon to constitute “extreme indifference to

the value of human life.” Instead, the text and context show

that the legislature created different provisions for a range

of conduct involving reckless use of firearms—each serving

its own purpose and designed to be considered together.

ORS 163.165 defines the crime of third-degree

assault and, as pertinent here, specifies three ways to com-

mit that offense with a “reckless” mental state:

“A person commits the crime of assault in the third

degree if the person:

“(a) Recklessly causes serious physical injury to

another by means of a deadly or dangerous weapon;

“(b) Recklessly causes serious physical injury to

another under circumstances manifesting extreme indiffer-

ence to the value of human life;

“(c) Recklessly causes physical injury to another by

means of a deadly or dangerous weapon under circum-

stances manifesting extreme indifference to the value of

human life[.]”

(Emphases added.)

We note that the plain text of ORS 163.165(1)(c) shows

that the “circumstances manifesting extreme indifference”

must exist in addition to the fact that a person recklessly

caused physical injury with a deadly or dangerous weapon.

In other words, the legislature added an element—“extreme

indifference”—to differentiate between types of reckless

conduct involving firearms. Thus, the legislature did not

intend that all reckless conduct causing physical injury even

with a deadly weapon would suffice to show such “extreme

indifference.” That distinction—between reckless use of a

deadly weapon that constitutes “extreme indifference to the

738 State v. Giron-Cortez

value of human life” and reckless use of a deadly weapon

that does not—finds support in the statutory context.

Such support is found in the other forms of third-

degree assault that are committed “recklessly.” If all reck-

less use of a deadly weapon constituted “circumstances man-

ifesting extreme indifference to the value of human life,”

ORS 163.165(1)(a) would be subsumed by ORS 163.165(1)(b).

That is, if, when a person recklessly causes serious phys-

ical injury with a deadly weapon under paragraph (1)(a),

the person is also recklessly causing serious physical injury

under circumstances manifesting “extreme indifference,”

then there would be no need for paragraph (1)(a) because

the conduct would be covered by paragraph (1)(b). That con-

struction would render paragraph (1)(a) superfluous. We

have explained that, “if possible, we should avoid interpret-

ing statutory enactments in a way that makes parts of them

superfluous or redundant.” See DISH Network Corp. v. Dept.

of Rev., 364 Or 254, 278, 434 P3d 379 (2019).

Related statutes also provide contextual support for

our understanding that the legislature did not intend for

all reckless use of a deadly weapon to manifest “extreme

indifference.” If a person “recklessly causes physical injury

to another,” absent evidence that the person acted reck-

lessly “under circumstances manifesting extreme indiffer-

ence,” that person commits the crime of assault in the fourth

degree. ORS 163.160(1)(a).6 And if a person “recklessly

engages in conduct which creates a substantial risk of seri-

ous physical injury to another person,” but which does not

cause physical injury, the person commits the crime of reck-

lessly endangering another person. ORS 163.195. Reckless

endangerment is, as we explain later, a crime intended by

the legislature to cover the reckless pointing of firearms. As

noted, defendant was found guilty of eight counts of reck-

less endangerment, and defendant does not challenge those

convictions nor dispute that he handled the handgun “reck-

lessly.” He disputes only that his reckless conduct mani-

fested “extreme indifference.”

6

Fourth-degree assault under ORS 163.160(1)(a) is a lesser-included offense

of third-degree assault under ORS 163.165(1)(c).

Cite as 372 Or 729 (2024) 739

The question, then, is how the legislature intended

to distinguish the reckless use of a deadly weapon with

“extreme indifference to the value of human life” from the

reckless use of a deadly weapon that does not meet that

standard. As we will next explain, the legislature intended

for recklessness with “extreme indifference” to encompass

only the “highest or the greatest possible degree” of lack of

concern for the risk that a defendant’s conduct might cause

the death of another person.

In State v. Boone, 294 Or 630, 635, 661 P2d 917

(1983), this court explained that recklessness with “extreme

indifference” is a standard that “contemplates circum-

stances which make defendant more blameworthy than

recklessness alone.”7 This court has also described reckless-

ness with “extreme indifference to the value of human life”

as another “level[ ]” of recklessness. State v. Hill, 298 Or 270,

280, 692 P2d 100 (1984). Thus, the statutory reference in

ORS 163.165(1)(c) to “extreme indifference” essentially con-

templates greater and lesser degrees of recklessness.

ORS 161.085(9)—which defines the mental state

of “recklessly”—is one of the general culpability provisions

adopted by the legislature. As such, that statute can be used

to help differentiate typical reckless use of a deadly weapon

from reckless use of a deadly weapon with “extreme indiffer-

ence to the value of human life.” See State v. Haltom, 366 Or

791, 797, 472 P3d 246 (2020) (stating as a “core principle[ ]”

that statutes defining offenses are read in the context of the

Oregon Criminal Code’s general culpability provisions to

determine applicable mental states). “Recklessly” relates to

a result or circumstance described by a statute defining an

offense, and is defined, in relevant part, to mean

7

Although Boone was decided before PGE and Gaines and therefore did not

follow the methodology for construing statutes that we adopted in those cases,

our examination of the statutory term’s text, context, and legislative history per-

suades us that our interpretation of the term in Boone remains sound. See gen-

erally Mastriano v. Board of Parole, 342 Or 684, 692, 159 P3d 1151 (2007) (stat-

ing that the “absence of a PGE-style examination of legislative intent does not

deprive a prior statutory interpretation of its ordinary effect as a precedent,” and

therefore a decision from this court interpreting a statute cannot be discounted

merely because it predates PGE); see also State v. Riley, 365 Or 44, 55, 443 P3d

610 (2019) (reaffirming that principle post-Gaines). And neither party has asked

us to revisit our analysis or holding in Boone.

740 State v. Giron-Cortez

“that a person is aware of and consciously disregards a

substantial and unjustifiable risk that the result will occur

or that the circumstance exists. The risk must be of such

nature and degree that disregard thereof constitutes a

gross deviation from the standard of care that a reasonable

person would observe in the situation.”

ORS 161.085(9). When determining what the mental state

element requires of the state’s proof for a particular charge,

“the starting point is to identify the result, conduct, or cir-

cumstance ‘described’ by the statute setting out the elements

of the offense.” State v. Turnidge (S059155), 359 Or 364, 460-

61, 374 P3d 853 (2016), cert den, 580 US 1070 (2017). Here,

for third-degree assault under ORS 163.165(1)(c), defendant

must have been “aware of and consciously disregard[ed] a sub-

stantial and unjustifiable risk” of causing a result—“physi-

cal injury by means of a deadly or dangerous weapon.”

The “recklessly” element in ORS 163.165(1)(c), when

read together with the definition of recklessly in ORS

161.085(9), thus requires the state to establish that defen-

dant was reckless as to the “substantial and unjustifiable”

risk of causing physical injury with a deadly or dangerous

weapon. But, in addition, the state must prove that defen-

dant acted recklessly “under circumstances manifest-

ing extreme indifference to the value of human life.” ORS

163.165(1)(c) thus requires the state to establish the “addi-

tional element” of “extreme indifference.” See Boone, 294

Or at 632 (so stating for second-degree assault under ORS

163.175(1)(c)). That additional element necessarily involves

defendant’s “extreme” lack of concern for the substantial

risk that his conduct might result in another person’s death,

a standard that the legislature intended to go well beyond

ordinary reckless assault.8

Neither “extreme indifference to the value of human

life” nor the circumstances that may manifest the requisite

8

We disagree with defendant, however, that the requisite “extreme” lack of

concern for the substantial risk that a person’s conduct might result in another

person’s death is satisfied only when there is evidence that a person’s conduct

actually results in “kill[ing] or nearly kill[ing] anyone.” That argument is not

supported by the text. The text of ORS 163.165(1)(c) requires only the result that

the victim suffer from a “physical injury.” But, the type of injury that could have

resulted is relevant to whether the defendant was acting with extreme indiffer-

ence to the value of human life.

Cite as 372 Or 729 (2024) 741

indifference are defined in statute. When the legislature has

not defined a particular term, we assume that the legisla-

ture intended to give words of common usage their “plain,

natural, and ordinary meaning.” State v. Clemente-Perez, 357

Or 745, 756, 359 P3d 232 (2015) (citing PGE, 317 Or at 611).

The definition of “extreme” is “existing in the

highest or the greatest possible degree : very great : very

intense” or “exceeding the ordinary.” Webster’s Third New

Int’l Dictionary 807 (unabridged ed 2002). “[I]ndifferent”

means “marked by a total or nearly total lack of interest in

or concern about something.” Id. at 1151. “[V]alue,” in terms

of “the value of a thing” or “the precise value of men,” means

“relative worth, utility, or importance : degree of excellence

: status in a scale of preferences.” Id. at 2530. And “life”

is “compare[d] [with] death” and is defined in part as “the

quality that distinguishes a vital and functional being from

a dead body.” Id. at 1306.

The legislature’s choice of words indicates that it

intended to set a high bar for proving “extreme indifference

to the value of human life.” The plain, natural, and ordinary

meaning of the disputed term can generally be understood

to describe circumstances that demonstrate the “highest”

or “greatest” lack of concern that a person’s conduct could

result in the death of a human being.

Importantly, as we explained in Boone, “[i]t is not

the ‘circumstances’ that manifest extreme indifference but

rather it is the conduct of a defendant [under those circum-

stances] that manifests [that person’s] extreme indiffer-

ence.”9 294 Or at 634 n 8. Thus, to determine whether a

9

The dissent characterizes the “extreme indifference” element as a “circum-

stance” element, and states that, under the general culpability provision set out

in ORS 161.085(9), the state need only prove that defendant was “reckless as to

the existence of the circumstance” for ORS 163.165(1)(c). 372 Or at 753 (James, J.,

dissenting). There are at least two problems with the dissent’s approach. First,

this court has already held that “extreme indifference” is essentially another

“level[ ] of recklessness.” Hill, 298 Or at 280. The dissent’s reliance on the gen-

eral culpability provisions thus disregards the fact that this court has already

observed that statutes using the “extreme indifference” concept operate differ-

ently than statutes that use the recklessness mental state alone.

Second, as a practical matter, the dissent’s approach does not make sense.

Under the dissent’s view, because the statute uses the term “extreme indiffer-

ence” in conjunction with the word “circumstances,” extreme indifference must be

treated as a circumstance element. And, under the general culpability provisions

742 State v. Giron-Cortez

defendant’s conduct manifests recklessness with “extreme

indifference,” this court considers “circumstances surround-

ing the conduct” that inform the nature of the risk to human

life involved and the extent to which a defendant consciously

disregarded that risk. Id. Contrary to defendant’s argu-

ment, this court considers circumstances beyond the precise

moment that defendant creates a risk of harm, including the

circumstances before, during, and after the resulting injury

or death. See id. at 634.

With that understanding of the statutory term in

mind, we reiterate our comment in Boone that attempting

to further “defin[e] extreme indifference to human life by

analysis rather than anecdote is difficult.” 294 Or at 637. We

next look to examples from this court for additional guidance

as to the type of conduct and surrounding circumstances

that the legislature intended to capture within the mean-

ing of recklessness with “extreme indifference.” See State v.

Mullins, 352 Or 343, 349, 284 P3d 1139 (2012) (explaining

that case law construing statute at issue is considered at

first level of PGE analysis) (citing State v. Toevs, 327 Or 525,

532, 964 P2d 1007 (1998)).

In Boone, the defendant was convicted of second-

degree assault with “extreme indifference” for injuries that

he caused when driving while intoxicated and with a sus-

pended license.10 Id. at 632-33. This court held that the state

must first establish that the defendant was reckless—for

second-degree assault under ORS 163.175(1)(c), the “commis-

sion of an extremely dangerous act” would constitute reck-

lessness “because it entails ‘substantial and unjustifiable

on which the dissent relies, the state must prove only that a defendant was reck-

less as to the existence of a circumstance. It follows that, under the dissent’s

interpretation, the state would have to prove that a defendant was “reckless”

as to the existence of the defendant’s own extreme indifference to the value of

human life. Rather than adopt such an approach, we adhere to our interpreta-

tion in Boone that, although recklessness with “extreme indifference” is not an

additional culpable mental state, the standard is best understood in terms of

requiring indifference to a substantial risk to human life that is “more than reck-

lessness.” 294 Or at 634. And that requires us to focus on the conduct at issue

under the surrounding circumstances.

10

ORS 163.175(1)(c) provides that a person commits the crime of second-

degree assault if the person “[r]ecklessly causes serious physical injury to another

by means of a deadly or dangerous weapon under circumstances manifesting

extreme indifference to the value of human life.”

Cite as 372 Or 729 (2024) 743

risk’ of serious injury or death.” Id. at 638. And that the evi-

dence must go beyond that level of recklessness by establish-

ing “evidence of circumstances from which the jury could

have inferred defendant’s extreme indifference to the value

of human life.” Id. at 638-39. In concluding that the defen-

dant’s conduct under the surrounding circumstances mani-

fested the additional element, this court highlighted that he

• was swerving across the road prior to the accident;

• tailgated so closely that he almost hit a car in front of

him;

• sideswiped an oncoming vehicle because he went across

the center line;

• swerved back over the line into another oncoming vehi-

cle, causing serious injury;

• had a .24 percent blood alcohol content two hours after

the accident; and

• was so belligerent and intoxicated at the scene that he

threatened to hit a passenger of a car that he sideswiped

and interfered with ambulance assistance.

Id. at 639. We affirmed the defendant’s conviction for second-

degree assault, concluding that a reasonable factfinder could

find that the defendant’s conduct was distinguishable from

a typical reckless assault case due to the “[t]he degree of

intoxication, defendant’s erratic driving and his conduct at

the scene.” Id.

Similarly, in State v. Cunningham, 320 Or 47, 880

P2d 431 (1994), this court considered the defendant’s con-

duct under the surrounding circumstances in concluding

that, if he acted recklessly, he did so under circumstances

manifesting an extreme indifference to the value of human

life. In Cunningham, the defendant was charged with mur-

der. At the close of all the evidence, the trial court instructed

the jury on the lesser-included crime of manslaughter in the

first degree, which requires acting recklessly with “extreme

indifference.” Id. at 58. The defendant requested a jury

instruction for the lesser-included offense of manslaughter

in the second degree, which does not include the “extreme

indifference” element. The trial court rejected the request.

744 State v. Giron-Cortez

As we explained in Cunningham, a requested jury instruc-

tion on a lesser-included offense should be given if there

is “evidence, or an inference which can be drawn from the

evidence, which supports the requested instruction so that

the jury could rationally and consistently find the defen-

dant guilty of the lesser offense and innocent of the greater.”

Id. (quoting State v. Washington, 273 Or 829, 835-36, 543

P2d 1058 (1975)). We affirmed the trial court’s denial of the

defendant’s requested instruction, explaining that the evi-

dence could not rationally support a finding that the defen-

dant was reckless without inferring from all the evidence

that his conduct also manifested an extreme indifference to

human life, given that

• the autopsy showed that the victim had been stabbed

approximately 37 times;

• the defendant admitted to police that he stabbed the

victim, that she had a lot of blood on her, and that she

had difficulty breathing; and

• the defendant dragged the victim into a ditch after

observing her difficulty breathing and left her there.

Id. at 60-61.

Although those prior cases do not involve firearms,

they do reflect our understanding that reckless assault

under “circumstances manifesting extreme indifference to

the value of human life” must go well beyond ordinary reck-

less assault and take into account circumstances before,

during, and after the act that causes the harm.

B. Legislative History

We next turn to the legislative history. Our review

of that history reveals that in the particular context of

firearms, the legislature associated “extreme indifference”

with a blending of two factors—first, the conduct of actually

shooting a firearm in the direction and range of others; and

second, an awareness and conscious disregard of the risk of

resulting injury or death.

The third-degree assault statute was created as

part of the 1971 revision of Oregon’s Criminal Code. Or Laws

1971, ch 743, § 92. However, the provision at issue here, ORS

Cite as 372 Or 729 (2024) 745

163.165(1)(c), was added in 1977. Or Laws 1977, ch 297, § 3.

Although the provision at issue was adopted later, the dis-

puted term—“circumstances manifesting extreme indiffer-

ence to the value of human life”—was first introduced into

the Criminal Code in 1971. See Or Laws 1971, ch 743, § 94.

The history and context of the 1971 legislature’s adoption of

the phrase are helpful in understanding what the legisla-

ture intended six years later when it enacted third-degree

reckless assault with “extreme indifference.”11 See Boone,

294 Or at 635 (considering meaning of “extreme indiffer-

ence” intended by the 1971 legislature while interpreting

the second-degree assault provision enacted in 1977).

The term “recklessly under circumstances man-

ifesting extreme indifference to the value of human life”

appeared in the 1971 versions of the criminal homicide and

assault statutes. See Or Laws 1971, ch 743, §§ 88, 94. The

Oregon Criminal Law Revision Commission, which drafted

the statutes, intended the term to have a consistent meaning.

See Minutes, Criminal Law Revision Commission, Jan 23,

1970, 6 (describing consistency in the meaning of the term).

This court considers the commentaries produced by the

commission and its subcommittees as part of the Criminal

Code’s legislative history. Gaines, 346 Or at 178.

The meaning of “extreme indifference to the value

of human life” is informed by the legislature’s previous use

of the term “depraved mind,” which appeared in Oregon

and a wide range of jurisdictions as a forerunner to the

term “extreme indifference.” Boone, 294 Or at 636. When

the legislature created the crime of “reckless” murder with

“extreme indifference,” that crime was intended to replace

former ORS 163.020, which defined second-degree murder

to include killing by an act “imminently dangerous to oth-

ers, and evincing a depraved mind, regardless of human

11

We could find nothing in the legislative history of ORS 163.165(1)(c) to sug-

gest that, in enacting the third-degree assault provision in 1977, the legislature

intended to change the meaning of “extreme indifference to the value of human

life” from how it was used in 1971. And the parties do not argue that the leg-

islature changed the meaning of “extreme indifference” when it enacted ORS

163.165(1)(c) or at any point after the term was introduced into the Criminal

Code. “[I]n the absence of evidence to the contrary, we ordinarily assume that the

legislature uses terms in related statutes consistently.” State v. Cloutier, 351 Or

68, 99, 261 P3d 1234 (2011).

746 State v. Giron-Cortez

life, although without any design to effect the death of any

particular individual.” (Emphasis added.); see Commentary

to Criminal Law Revision Commission Proposed Oregon

Criminal Code, Final Draft and Report § 88, 86 (July 1970)

(similar); see also General Laws of Oregon, Crim Code,

ch XLIII, § 504, p 527 (Deady 1845-1864) (similar). The

crime of reckless murder with “extreme indifference” was

intended to correspond “fairly closely in policy” to that for-

mer second-degree murder statute that used the depraved-

mind standard. Commentary § 88 at 87. Reckless murder

with “extreme indifference” was also derived from Model

Penal Code section 210.2(1). Id. at 86 (so stating). The Model

Penal Code drew the “extreme indifference” term from many

explicit statutory treatments and common-law decisions

characterizing “extreme recklessness” as conduct without

an intent to kill or injure, but nevertheless evidencing a

“depraved heart regardless of human life.” Commentary to

Model Penal Code, Tentative Draft #9, 29, May 8, 1959.

“Depraved mind” was not defined in statute, but

previous applications of the term give some insight into

its meaning. Prior to 1971, courts applied iterations of the

“depraved mind” standard to conduct involving the inten-

tional shooting of firearms in the direction and range of oth-

ers. In Oregon, a defendant showed a “depraved mind” suf-

ficient to sustain a second-degree murder conviction based

on evidence that he intentionally fired two rifle shots into a

house that he knew was occupied at the time. State v. Gill,

3 Or App 488, 491, 474 P2d 23 (1970). Commentary to Model

Penal Code section 210.2(1) includes comparable examples

of shooting a firearm with recklessness as to the risk of

injury or death, wherein the defendants’ conduct presents a

greater risk to human life than merely holding or display-

ing a firearm. See, e.g., Commonwealth v. Malone, 354 Pa

180, 183, 188, 47 A2d 445, 447, 449 (1946) (the defendant

had a “wicked, depraved, malignant heart” when he pulled

the trigger of a loaded revolver at the victim during a game

of Russian Roulette); Myrick v. State, 199 Ga 244, 249, 34

SE2d 36, 40 (1945) (whether the defendant displayed reck-

less disregard for human life by intending to shoot over the

victim’s head to scare him and hitting him by mistake was

jury question); People v. Jernatowski, 238 NY 188, 192, 144

Cite as 372 Or 729 (2024) 747

NE 497, 498 (1924) (conduct showed a “wicked and depraved

mind regardless of human life” when the defendant fired

several shots into an occupied house).

The commission gave similar examples for the

term “extreme indifference.” Professor Platt, in discussing

the meaning of “extreme indifference” with members of the

commission, stated that “extreme indifference” is “broad.”

Tape Recording, Criminal Law Revision Commission,

Subcommittee 2, Nov 14, 1969, Tape 87, Side 1. He provided

several hypothetical situations to help “illustrate the dif-

ference between homicide committed intentionally, know-

ingly, or recklessly with extreme indifference to the value of

human life.” Id.

Professor Platt gave one set of hypotheticals in

which a person intentionally sets off a bomb that results in

the death of other people. He explained that that situation

could describe murder that is committed “intentionally” or

“knowingly”:

“The defendant intentionally wants to kill A and to do this

places a bomb in A’s home and plans to wait until A is in

the home to detonate the bomb. A walks into his home with

B and the defendant sees B walk in with A. If he blows up

the house and kills both A and B, he has intentionally mur-

dered A and knowingly murdered B.”

Id. He next changed the hypothetical to describe how the

“intentionally” and “knowingly” examples would differ from

an example of “reckless” murder under circumstances that

would manifest “extreme indifference to the value of human

life”:

“The defendant plans to kill A in the same fashion as out-

lined above. B has gone into the house previously and has

not been seen by the defendant, yet the defendant is con-

sciously aware that someone will be in the house (perhaps

it is a motel room). If he blows up the house and kills A and

B, not knowing for a certainty that he is going to kill B, the

defendant has intentionally murdered A and in killing B

has committed a reckless homicide with the indifference

standard.”

Id.

748 State v. Giron-Cortez

He also described another set of hypotheticals

in which a person shoots a firearm across a highway. He

explained that, if “someone shoots across a highway in a

commercially developed area, it would be more like reckless

murder with extreme indifference to the value of human

life than where someone shoots across a seldom-used road.”

Id. In the latter instance, Platt stated that “it might not be

homicide at all, even though someone is killed.” Id.

The commission also gave other examples of “reck-

less” murder and assault with the use of a deadly weapon

constituting “extreme indifference,” all of which contemplate

a defendant consciously placing the lives of others at risk by

shooting a firearm, but without an intent to hit any partic-

ular person. The commission’s commentary to the murder

with “extreme indifference” provision states that the section

“is meant to cover situations such as one shooting into a

crowd or an occupied house or automobile.” See Commentary

§ 88 at 87. The examples involve a person intentionally dis-

charging a weapon and accidentally killing the victim. And

the commentary to the first-degree assault with “extreme

indifference” provision states that the section is “designed

to cover the most serious forms of life endangering conduct,”

including “reckless conduct evincing extreme depravity, e.g.,

shooting into a crowd without any specific homicidal intent.”

See Commentary § 94 at 94.

The subcommittee that drafted the homicide and

assault statutes also created the statutory provision for the

crime of recklessly endangering another person. That stat-

ute, which has remained unchanged since it was enacted

in 1971, provides that a person commits the crime “if the

person recklessly engages in conduct which creates a sub-

stantial risk of serious physical injury to another person.”

Or Laws 1971, ch 743, § 96; ORS 163.195.

The commentary for reckless endangerment pro-

vides two helpful notes: (1) the section “is intended to cover

the reckless pointing of firearms,” and (2) unlike the corre-

sponding Model Penal Code section 211.2, Oregon’s provi-

sion does not include the words “danger of death” because

the commission felt such words were “redundant” in light of

the definition of “serious physical injury.” See Commentary

Cite as 372 Or 729 (2024) 749

§ 96 at 97. The legislature appeared to recognize that the

reckless act of pointing a firearm at another person is one

that likely involves the risk of death, even without addi-

tional details about the likelihood that the firearm would

discharge. The commentary indicates that, even recogniz-

ing the risk of death, the legislature intended for the point-

ing of firearms to constitute ordinary “reckless” conduct.

From the text, context, and legislative history, we

reach the following conclusions. Most obviously, the legis-

lature did not intend that all reckless use of firearms con-

stitutes “extreme indifference to the value of human life.”

The reckless pointing of a firearm at another person was

intended to be addressed by the reckless endangerment

statute, which is inconsistent with a conclusion that reck-

less pointing of a firearm, without more, also qualifies as

“extreme indifference.” As to what would meet that stan-

dard, the legislative history suggests that the legislature

had in mind only the most serious forms of life-endangering

conduct, such as shooting a firearm, combined with reck-

lessness as to the likelihood of resulting injury or death—as

in the examples of firing into an occupied house or across a

busy road. The context and history also suggest that acts

that materially increase the risk of an unintentional dis-

charge combined with recklessness as to the risk of injury

or death—as in the Russian Roulette example—would meet

the standard.

As noted, the state takes the position that, given

the inherent dangers presented by loaded firearms, once the

prosecution establishes that a defendant acted recklessly,

whether the conduct rose to the level of “extreme indiffer-

ence” will generally be a jury question. We understand the

dissent to take essentially the same view. However, in this

context, we conclude that the dissent’s approach gives insuf-

ficient regard to the legislature’s choices in structuring the

third-degree assault statute and the reckless endangerment

statute. Given the evident care with which the legislature

considered how to address the use of “deadly weapons,” we

are persuaded that the legislature did not intend to allow a

factfinder to find the additional element of “extreme indif-

ference” to be present whenever the state proved that a

750 State v. Giron-Cortez

defendant had behaved recklessly with a deadly weapon.

Rather, we conclude that, as a general matter, a finding of

extreme indifference will require, at a minimum, conduct

such as shooting a firearm in the direction and range of

other people or, at least, as relevant here, conduct or circum-

stances that materially increase the risk of an accidental

discharge in the direction and range of others, beyond the

risk of discharge inherent whenever a person holds and dis-

plays a loaded weapon in public.

V. APPLICATION

Viewing the video evidence in the light most favor-

able to the state, a factfinder could reasonably infer that

defendant brought a loaded handgun into a crowded bar.

There was evidence of alcohol consumption, but the state

on review does not argue that defendant was intoxicated or

that his judgment was impaired by alcohol. He pulled the

handgun out to show his friends. In so doing, defendant held

it flat in the palm of his hand for approximately seven sec-

onds, without his fingers on the trigger. While returning the

handgun to his waistband with the barrel pointed down,

defendant accidentally discharged it and recklessly caused

physical injury to his cousin when the bullet ricocheted off

his leg bone. As noted, the trial court found that defendant

did not intentionally discharge the handgun.12

Without the conduct of shooting the handgun in the

direction and range of others, the question becomes whether

the evidence supports a finding that defendant created a

materially increased risk of accidental discharge in a way

that posed a risk of injury or death to others beyond the risk

inherent in handling and displaying a loaded gun in public.

We conclude that it does not.

Defendant pulled the handgun out for a few seconds

to show his friends. He simply held it in the palm of his hand.

He did not, for example, spin the handgun, wave it around

12

The dissent relies, in part, on the prosecutor’s descriptions of defendant’s

gestures prior to taking out the handgun to conclude that defendant manifested

an extreme indifference to the value of human life. 372 Or at 759-60, (James, J.,

dissenting). We note, however, that the trial court explicitly stated that it could

not make the findings that the prosecutor argued for regarding defendant’s non-

verbal actions prior to pulling out the handgun.

Cite as 372 Or 729 (2024) 751

in a drunken fashion, engage in a game of Russian Roulette,

or otherwise play with it in a way that materially increased

the risk of discharge and resulting injury or death. Nor did

anything in the environment in which defendant displayed

the gun create an enhanced risk of accidental discharge; for

example, people in the immediate vicinity of defendant were

not doing anything out of the ordinary physically that would

elevate the risk of an accidental discharge. Moreover, at the

time that defendant committed the assault—when he acci-

dentally discharged the handgun—the barrel was pointed

down and toward his own leg while he was returning it to

his waistband. To be sure, holding the loaded handgun in a

crowded place was inherently dangerous, but the inherent

dangers associated with firearms are already accounted for

in the structure of the statutory scheme. More is required to

establish “extreme indifference to the value of human life.”

Without physical injury, defendant’s conduct would consti-

tute only reckless endangerment under ORS 163.195, and

with physical injury, an assault in the fourth degree under

ORS 163.160(1).

The state also argues that defendant’s status as a

felon is an indication of an “extreme indifference to the value

of human life.” See Boone, 294 Or at 639 n 15 (noting the

defendant’s suspended license when considering whether

the defendant’s impaired driving demonstrated extreme

indifference). But even considering that that fact may be “an

indication of an indifferent state of mind,” id., it is not suffi-

cient to demonstrate an extreme indifference here in light of

the other circumstances discussed above. Defendant’s sta-

tus as a felon did not materially increase the risk of acciden-

tal discharge that occurred. As noted, defendant was found

guilty of the crime of felon in possession under ORS 166.270

for his conduct in this case. The legislature has not sought

fit to connect the two statutes, and so we do not give that

fact the same weight as the dissent.

Based on the foregoing reasons, we conclude that the

trial court erred in denying defendant’s motion for judgment

of acquittal, because the evidence does not fall within the

category of reckless use of a deadly weapon that constitutes

752 State v. Giron-Cortez

“extreme indifference,” as required for third-degree assault

under ORS 163.165(1)(c).

The decision of the Court of Appeals is reversed.

The judgment of conviction is reversed in part, and the case

is remanded to the circuit court for entry of conviction for

the lesser-included offense of fourth-degree assault under

ORS 163.160(1)(a) and for resentencing consistent with this

opinion.

JAMES, J., dissenting.

Defendant, a convicted felon, acquired an illegal

handgun and, with a round in the chamber and the safety

off or inoperable, tucked the weapon into his waistband and

entered a small bar filled with patrons. After consuming

alcohol, defendant withdrew that weapon in the crowded

bar, displayed it to the people at his table with his finger on

or near the trigger, necessarily aiming it at multiple patrons

while doings so. While attempting to put the weapon back

into his waistband, defendant accidentally discharged the

handgun, wounding himself as well as another person at his

table, and risking the lives of many more.

The question presented by this case is whether the

trial court erred in denying defendant’s motion for judgment

of acquittal (MJOA) as to ORS 163.165(1)(c), assault in the

third degree. That is, viewing the evidence in the light most

favorable to the state, did the law prohibit a factfinder from

even considering the allegation that defendant’s reckless

conduct was committed “under circumstances manifesting

extreme indifference to the value of human life”? In my

view, as a matter of law and commonsense, the answer to

that question is no. The majority concludes otherwise, and

for that reason, I dissent.

ORS 163.165(1)(c) provides that one, of the many,

ways to commit assault in the third degree is when a defen-

dant “[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.”

Understanding the function of the phrase “under circum-

stances manifesting extreme indifference to the value of

Cite as 372 Or 729 (2024) 753

human life” in the statute requires an examination of how

Oregon criminal statutes consider mental states.

The Oregon Criminal Code, ORS 161.085 (7) - (10),

lists four possible mental states—intentional, knowing,

reckless, and criminally negligent—for crimes in this state

and specifies that each mental state applies “only to partic-

ular types of elements.” State v. Simonov, 358 Or 531, 539,

368 P3d 11 (2016). Criminal liability generally requires an

accompanying mental state for each element. State v. Rutley,

343 Or 368, 373, 171 P3d 361 (2007). Elements are divided

into types—conduct, result, or circumstance. Circumstance

elements, as we explained in Simonov, require only reck-

lessness or criminal negligence. Simonov, 358 Or at 539-40.

For ORS 163.165(1)(c), “physical injury” is a result

element. Causing, “by means of a deadly of dangerous

weapon” is a conduct element in the statute—the conduct

is the use of the weapon. “Under circumstances manifest-

ing extreme indifference” is a circumstance element of the

statute. We know that “under circumstances manifesting

extreme indifference” is a circumstance element because

that is what the statute says. Surely, we cannot expect the

legislature to speak any clearer than explicitly using the

terms “under circumstances” in the text of a criminal statute

to denote a circumstance element. Accordingly, recklessness

is the mental state applicable to all three elements of ORS

163.165(1)(c). As such, the state need only plead and prove

that the defendant was reckless in causing injury, reckless

in the use of the weapon, and reckless as to the existence of

the circumstance. The state does not need to prove that a

defendant was extra reckless. Acting in a generally reckless

manner, while recklessly disregarding that circumstances

exist such that reckless conduct committed under those cir-

cumstances could endanger lives, is sufficient.

However, the majority interprets “under circum-

stances” in ORS 163.165(1)(c) as a form of heightened reck-

lessness, and thus, not as a circumstance element, but as

a conduct element. See, e.g., 372 Or at 731 (stating that

the legislature understood “ ‘extreme indifference’ * * * to

apply to only the most serious forms of life-endangering

conduct” (emphasis added)). In short, the majority rewrites

754 State v. Giron-Cortez

the statute—rather than conduct occurring under circum-

stances manifesting extreme indifference, the majority

says that the conduct itself must manifest extreme indiffer-

ence. Under that reasoning, the “circumstance” cannot be

external to the reckless act, defendant must be the cause,

through his conduct, of the circumstance that manifests

extreme indifference. Through that rewriting of the statute,

the majority comes to its ultimate conclusion that,

“[i]n the context of firearms, the legislature associated

‘extreme indifference’ with conduct such as shooting a fire-

arm in the direction and range of other people or, at least,

as relevant here, conduct that materially increases the risk

of an accidental discharge in the direction and range of oth-

ers beyond the risk inherent in handling and displaying a

loaded gun.”

Id. at 731-32.

Treating extreme indifference as conduct, as opposed

to a circumstance, carries consequences. A few examples

illustrate the problem. Shooting a firearm into the air is

inherently reckless conduct; because of gravity, the bullet

will eventually return to earth, where it could strike another

person. Shooting a firearm into the air in a secluded location

is still reckless conduct, but those circumstances would not

manifest “extreme indifference to the value of human life”

even if, upon returning to earth, the bullet struck a person

who, unbeknownst to the shooter, happened to be hiking in

the nearby woods. But engaging in the exact same reckless

conduct—shooting a firearm into the air—in the middle of a

densely packed urban area might well be considered conduct

under “circumstances manifesting extreme indifference to

the value of human life.”

Or consider an example closer to the facts of this

case. Holding a loaded weapon out for display, and show-

ing it to friends, and having it discharge, may be reckless,

but when done in a private setting in one’s home may not

be done under circumstances manifesting extreme indiffer-

ence to the value of human life. However, doing those exact

same actions on a crowded dance floor surrounded by dozens

of closely packed people, could be reckless conduct engaged

in under circumstances manifesting extreme indifference.

Cite as 372 Or 729 (2024) 755

Each of those examples illustrates a circumstance

that is external to defendant’s conduct. Defendant’s con-

duct does not cause the circumstance—the urban setting, or

the dance floor. In each, defendant’s conduct is the same—

firing the weapon, intentionally or recklessly. But, when

defendant’s conduct is committed under those external

circumstances, the moral blameworthiness changes. The

majority’s conflation of conduct and circumstance limits the

potential universe of increased moral fault only to those cir-

cumstances that defendant had a hand in bringing about.

To reach that result, the majority relies heavily on

State v. Boone, 294 Or 630, 661 P2d 917 (1983). There, the

defendant had been convicted of several crimes, including

second-degree assault, after he drove his automobile across

the center line while he was intoxicated, crashing into

another vehicle and seriously injuring its occupants. Under

the governing statute, a person could commit second-degree

assault by “recklessly caus[ing] serious physical injury to

another by means of a deadly or dangerous weapon under

circumstances manifesting extreme indifference to the

value of human life.” Id. at 632 (quoting ORS 163.175(1)(c)

(1977), amended by Or Laws 2005, ch 22, § 110).

In that case, we noted, in a footnote, that “[i]t is

not the ‘circumstances’ that manifest extreme indifference

but rather it is the conduct of a defendant that manifests

his or her extreme indifference.” Id. at 634 n 8. However,

that statement cannot be read in isolation. Critically, the

sentence immediately following states that “[w]hether a

defendant’s conduct manifests extreme indifference must

be determined from all the circumstances surrounding the

conduct.” Id. at 634 n 8. And we returned to the text of the

statute in articulating the holding in Boone: “We hold that

the circumstances which exist in this case suffice to establish

defendant’s extreme indifference to the value of human life.”

Id. at 639-40 (emphasis added). Thus, unlike the majority,

Boone itself appears to accept that the circumstances that

manifest extreme indifference can be entirely independent

from defendant, and while they may contextualize defen-

dant’s conduct, they need not be caused by defendant’s

conduct.

756 State v. Giron-Cortez

But, to whatever extent Boone must be read to

compel the majority’s transformation of extreme indiffer-

ence from a circumstance element to a conduct element, the

footnote in Boone is clearly wrong and we should disavow

it.1 Although I readily agree that statutory interpretation

involves more than mere textualism, plain text must be

meaningfully grappled with because “there is no more per-

suasive evidence” of the legislature’s intent than the words

used in the statute, because “[o]nly the text of the statute

receives the consideration and approval of a majority of the

members of the legislature[.]” State v. Gaines, 346 Or 160,

171, 206 P3d 1042 (2009). We are not free to ignore the text

of a statute if we think that the text “does not accurately

state” what the legislature intended. Boone, 294 Or at 634

n 8. If we did that, “we would be rewriting a clear statute

based solely on our conjecture that the legislature could not

have intended a particular result.” State v. Vasquez-Rubio,

323 Or 275, 283, 917 P2d 494 (1996).

I cannot reconcile the majority’s interpretation with

the clear and unambiguous language chosen by the legisla-

ture. Nor do I view the legislative history here as compel-

ling the majority’s interpretation. It is true that the legis-

lature discussed examples of a person planting a bomb or

intentionally firing across a highway in a commercial area

or shooting into a crowd. But the mere fact that the legis-

lature only used the most extreme hypotheticals does not

foreclose that they intended to capture less extreme sce-

narios as evidenced by the language they actually enacted

into law. There is no legislative history on this record that

shows that the legislature intended to foreclose uninten-

tional firearm discharge from coming under the ambit of

the statute. As Justice Bushong recently noted, the legisla-

ture can, and often does, enact language broader that the

scenarios brought before it to urge enactment of a law. State

v. Azar, 372 Or 163, 187-88, 547 P3d 788 (2024) (Bushong, J.,

dissenting) (“That commonly occurs during the legislative

1

Because we would be disavowing the footnote in Boone, not the holding of

that case, the doctrine of stare decisis presents no obstacle. See State v. Owen, 369

Or 288, 302, 505 P3d 953 (2022) (stating that, under the doctrine of stare decisis,

a party seeking to persuade us to abandon precedent must identify, in addition to

a deficit in the analytical process employed in the prior case, that “that holding in

[the prior case] is incorrect” and that abandoning that holding “is now prudent”).

Cite as 372 Or 729 (2024) 757

process. See, e.g., State v. Nascimento, 360 Or 28, 44, 379

P3d 484 (2016) (recognizing that the legislature ‘ “may and

often does choose broader language that applies to a wider

range of circumstances than the precise problem that trig-

gered legislative attention” ’ (quoting South Beach Marina,

Inc. v. Dept. of Rev., 301 Or 524, 531, 724 P2d 788 (1986)));

Hamilton v. Paynter, 342 Or 48, 55, 149 P3d 131 (2006) (‘[T]he

statutory text shows that, even if the legislature had a par-

ticular problem in mind, it chose to use a broader solution.’).”

(Brackets in Azar.)).

Turning now from statutory interpretation to record

sufficiency, for the majority, there must be some evidence of

“conduct that materially increases the risk of an acciden-

tal discharge in the direction and range of others beyond

the risk inherent in handling and displaying a loaded gun.”

372 Or at 731-32. Even if I were to accept the majority’s

reading of the statute—that extreme indifference is not a

circumstance, but rather a form of conduct akin to a height-

ened level of recklessness—viewed in the light most favor-

able to the state, there would still be ample evidence to cre-

ate a question of fact as to extreme indifference.

Defendant is a convicted felon who cannot lawfully

possess a firearm. That circumstance was particularly

important to the trial court, and permissibly so. As we have

said, part of the “extreme indifference” element “contem-

plates circumstances which make defendant more blame-

worthy than recklessness.” Boone, 294 Or at 635. Those

circumstances include the subjective characteristics of the

defendant. In the context of vehicular homicide, we consid-

ered the level of defendant’s intoxication. Id. For example, in

Boone, we noted that the defendant “was also found guilty

of driving while suspended. Were he driving with knowl-

edge of suspension, that fact would be another indication of

an indifferent state of mind, for it reflects a lack of concern

for social and legal responsibility.” Id. at 640 n 15. Perhaps

felon status, on its own, is not sufficient to send the issue of

extreme indifference to the jury—a point I need not decide.

But defendant’s felon status is, at least in part, properly con-

sidered as one component of the factual circumstances that

can, collectively, establish extreme indifference.

758 State v. Giron-Cortez

Defendant’s status as a felon is important because

Oregon law provides that those who have broken our most

serious laws—felonies—are presumptively a greater risk

to the public than law abiding citizens. Accordingly, ORS

166.270(1) provides:

“Any person who has been convicted of a felony under

the law of this state or any other state, or who has been

convicted of a felony under the laws of the Government of

the United States, who owns or has in the person’s posses-

sion or under the person’s custody or control any firearm

commits the crime of felon in possession of a firearm.”

For a felon to restore their firearm rights, that individual

must affirmatively persuade a court, “by clear and convinc-

ing evidence,” that the presumption that “the petitioner does

not pose a threat to the safety of the public.” ORS 166.274(7).

The reason for defendant’s firearm prohibition is

also relevant. Oregon classifies felon in possession differ-

ently depending on the severity of the underlying offense.

For a single felony, felon in possession is a misdemeanor.

See ORS 166.270(4)(a). However, if that underlying felony

itself involves the use of a deadly or dangerous weapon,

then felon in possession of a firearm is classified by the leg-

islature as a more serious public safety concern and is a

Class C felony.

Here, defendant’s possession of the handgun was

the most serious—a Class C felony because of defendant’s

criminal record. The court admitted state’s exhibit 3, which

showed that defendant was a felon because defendant had

pleaded guilty to assault in the second degree, ORS 163.175,

in Marion County Case Number 07C48829, in return for the

dismissal of an attempted murder charge. ORS 163.175 pro-

vides, in relevant part:

“A person commits the crime of assault in the second

degree if the person:

“* * * * *

“(b) Intentionally or knowingly causes physical injury

to another by means of a deadly or dangerous weapon; or

“(c) Recklessly causes serious physical injury to

another by means of a deadly or dangerous weapon under

Cite as 372 Or 729 (2024) 759

circumstances manifesting extreme indifference to the

value of human life.”

Accordingly, this record shows that defendant was not unfa-

miliar with the dangers posed by weapons, because he had

injured someone with a weapon in the past sufficient to

justify a conviction for assault in the second degree, and a

mandatory minimum sentence of 70 months in prison. As a

result, the legislature determined that defendant fell within

a category of individuals who posed the most extreme public

safety risk, sufficient to warrant felony charges simply for

possession of a firearm.

Despite that background, and in intentional viola-

tion of the law that prohibited him from possessing a weapon,

defendant nevertheless acquired a handgun. Defendant did

not have just a loaded firearm. He had a live round racked in

the chamber. Defendant tucked that handgun into his waist-

band, not a holster, and went into a crowded bar. The bar

in question was small. It was filled with over thirty patrons

crowded into a small space. As defendant sat in the bar that

night, defendant was committing a Class C felony simply

by virtue of his possession of the firearm in his waistband,

because the Oregon legislature has deemed him, by virtue of

his felony status, as a greater risk to public safety with fire-

arms than others.

Defendant sat at a table with two other men, and

from the two empty pitchers and three empty cups visible

on their table in the surveillance video, a factfinder could

reasonably infer that the group had consumed alcohol by the

time of the incident. Shortly before defendant removed the

firearm from his waistband, he can be seen in surveillance

video pantomiming the racking and firing a handgun. As

the prosecutor described:

“When Your Honor watches * * * [d]efendant’s hands as

he’s talking, Your Honor should notice a couple of things. * * *

Defendant is gesturing. When he’s gesturing, he’s pointing

with a single finger, he’s pointing certain ways. But then

at some point during the conversation that happened about

a couple of seconds there, he points his hands, two fingers

together, extended just like a gun at the gentleman in the

760 State v. Giron-Cortez

black hoodie. He then puts his hand up in the air, racks the

slide.

“* * * * *

“But Your Honor, should watch what’s on the screen.

This is not a [d]efendant who is sitting there having a

casual conversation about flowers in the field or two people

at the bar. This is a [d]efendant who’s describing a shoot-

ing. Immediately after describing the shooting, instead of

moving on safely, he pulls a firearm out of his waistband in

a crowded bar.”

After that pantomime, defendant took his illegal

firearm from his waistband and showed it to the people

sitting at his table, holding it by the handle, his finger on,

or near, the trigger (the video is not clear). Defendant did

not clear the chamber, remove the clip, open the action, or

ensure that the weapon safety was engaged or operational.

Given the crowd present in such a confined space, in the act

of showing the illegal firearm defendant inevitably pointed

it in the direction of as many as eight to nine patrons. There

are established rules of safety universally agreed upon by

responsible Oregon gun owners: Treat all firearms as if they

were loaded, keep firearms pointed in a safe direction, keep

your finger away from the trigger area unless you intend to

fire the weapon, be situationally aware of your potential tar-

get and what is behind. Defendant did not just forget some of

those rules—he disregarded all of them. Placing the weapon

back into his waistband, not a holster, defendant pulled the

trigger. Both defendant and another person at his table were

shot and injured. But for the smallest of changes—a centi-

meter of angle difference, a slight shift in the placement of a

table or chair—the shot could have been fatal to any number

of people in the bar.

To be clear, I agree that an injury caused by the

reckless discharge of a firearm, without more, would be

insufficient to establish circumstances manifesting extreme

indifference to the value of human life. But there is much

more on this record—defendant’s status as a felon and his

unlawful possession of the firearm to begin with, his ges-

tures prior to the incident, the small space, the number of

people, the presence of alcohol, the chambered round, the

Cite as 372 Or 729 (2024) 761

failure to engage the safety, and the pointing of the hand-

gun in the direction of not just one, but multiple people. This

goes “beyond the risk inherent in handling and displaying a

loaded gun,” which the majority itself requires.

Like the grant of summary judgment in civil pro-

ceedings, the grant of a motion for judgment of acquittal on

record sufficiency is a drastic measure. Removing a mat-

ter from the factfinder because of the court’s perception of

the strength of the record should be approached with cau-

tion, for it is the factfinder, not the court, who is the pre-

ferred entity to render “[t]he community’s judgment [as to]

whether the defendant’s conduct met that threshold in the

factual circumstances of any particular case.” Chapman

v. Mayfield, 358 Or 196, 206, 361 P3d 566 (2015); see also

Piazza v. Kellim, 360 Or 58, 74, 377 P3d 492 (2016) (hold-

ing the same). It accordingly requires an exceedingly high

standard, that the court view “the evidence in the light most

favorable to the state” and then determine that no “rational

trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” State v. Walton, 311 Or

223, 241, 809 P2d 81 (1991). That principle is especially

applicable when a statute requires an assessment of a defen-

dant’s conduct under the circumstances presented. See State

v. Cunningham, 320 Or 47, 61, 880 P2d 431 (1994) (acknowl-

edging that “the assessment of circumstances surrounding

a defendant’s conduct usually should be left to the jury”).

In this case, could a rational factfinder conclude

that the evidence here was insufficient to prove beyond a

reasonable doubt that the circumstances manifested an

extreme indifference to human life? Most certainly. But, in

the light most favorable to the prosecution, I am unable to

conclude the reverse: that any factfinder who viewed these

facts and then concluded that defendant did act in a manner

that manifested extreme indifference to the value of human

life, would be irrational as a matter of law.2 What ultimate

2

In refusing to let these facts go to a jury, the majority sets up a conundrum.

Defendant’s mere possession of the handgun was a Class C felony. And yet, on the

facts of this case, defendant’s act of drawing the handgun, not merely possessing

it, then recklessly discharging the handgun in a crowded bar, injuring both him-

self and another person, and risking the potential death of multiple people, as a

matter of law, failed to create a jury question on the issue of extreme indifference,

and accordingly, as a matter of law, constituted no more than possibly a violation

762 State v. Giron-Cortez

verdict we might render is not the issue. The question here

is whether this record is so lacking that the law required the

court to deprive the factfinder of its role to render the “com-

munity’s judgment.” Chapman, 358 Or at 206. It was not.

I respectfully dissent.

Bushong, J., joins in this dissenting opinion.

of ORS 163.160, assault in the fourth degree, a misdemeanor. Further, under

the majority’s reasoning, that paradoxical disparity between the misdemeanor

discharge of the firearm and resulting injury, in contrast to the felonious mere

possession, was intended by the legislature.