Updated: The previous posts on this topic have operated under the assumption that the gun minimum is a sentence enhancer under Oregon law; thus, the prosecutor could make the argument below, that a sentence enhancer cannot be converted into an element for the purpose of determining if a crime is a lesser-included offense. As it turns out, I was in error, but my error only makes the argument stronger. What the gun minimum statute actually says is:
161.610 Enhanced penalty for use of firearm during commission of felony; pleading; minimum penalties; suspension or reduction of penalty. (1) As used in this section, "firearm" has the meaning given that term in ORS 166.210.
(2) The use or threatened use of a firearm, whether operable or inoperable, by a defendant during the commission of a felony may be pleaded in the accusatory instrument and proved at trial as an element in aggravation of the crime as provided in this section. When a crime is so pleaded, the aggravated nature of the crime may be indicated by adding the words "with a firearm" to the title of the offense. The unaggravated crime shall be considered a lesser included offense.
Thus, it is an element, and the state's response - which was never strong to begin with - is even more frivolous.
FYI: I have updated my previous post on this topic.
Just remember that the state's argument will be that the aggravating factor of "use or threatened use of a firearm" cannot be magically converted into an element for the purpose of determining if one crime is a lesser-included of the other.
However, the COA did exactly that - not only was it the same aggravating factor, but it was at the urging of the state - in State v. Riehl.
Also note this same argument applies to CDO/SQ drug cases.