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. 

, 

 (2022).
730   State v. Giron-Cortez
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 (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, 

, 

(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, 

, 

 (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.
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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, 

, 454 n 1, 

 (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, 

. 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. 

        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 

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            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, 

, 

 (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, 

, 

(1993), and modified in State v. Gaines, 

, 

 (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, 

; 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 

 (2024)                                   737

statutory terms.” City of Portland v. Bartlett, 

, 

 (2022) (internal quotation marks omitted);
Gaines, 

. A statute’s context includes other
provisions of the same or related statutes. Ogle v. Nooth, 

, 

 (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., 

, 

 (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).
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         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, 

, 

(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, 

, 

 (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, 

, 

 (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, 

, 

 (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, 

, 

 (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), 

, 460-
61, 

 (2016), cert den, 

 (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, 

 (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.
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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, 

, 

 (2015) (citing PGE, 

).
         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 

 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, 

. 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. 

 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.” 

. 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, 

, 

 (2012) (explaining
that case law construing statute at issue is considered at
first level of PGE analysis) (citing State v. Toevs, 

, 

 (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 

. 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.” 

. 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.”
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 (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, 

, 

 (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.” 

. 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.”

 (quoting State v. Washington, 

, 

 (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 

 (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,

 (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, 

.
         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, 

. 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, 

, 

 (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 (

-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,

, 

 (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, 

 (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, 

 (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, 

, 144
Cite as 

 (2024)                                          

, 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.” 

        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.”

 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.”

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.”

 In the latter instance, Platt stated that “it might not be
homicide at all, even though someone is killed.” 

         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 

 (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 

 (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, 

 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,” 

 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 

 (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, 

,

 (2016). Criminal liability generally requires an
accompanying mental state for each element. State v. Rutley,

, 

 (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, 

.
         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 

 (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, 

, 

 (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.” 

 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, 

, 

 (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, 

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,

, 

 (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, 

, 187-88, 

 (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, 

, 

 (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 

 (2024)                                  757

process. See, e.g., State v. Nascimento, 

, 

 (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., 

, 

 (1986)));
Hamilton v. Paynter, 

, 

 (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, 

. Those
circumstances include the subjective characteristics of the
defendant. In the context of vehicular homicide, we consid-
ered the level of defendant’s intoxication. 

 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.” 

 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 

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   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 

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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, 

, 

 (2015); see also
Piazza v. Kellim, 

, 

 (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, 

, 

 (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, 

, 

 (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, 

. 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.