What is the mental state for the gun minimum?
by: Ryan • April 21, 2014 • no comments
Enhancement facts don't have mental states. But the gun minimum is an element, based on statute and case law, most recently State v. Flores. I believe a person could reasonably apply the analysis of State v. Wier and determine that a mental state to that element of the aggravated offense is required. Further, because "use or threatened use of a firearm" constitutes conduct, the lowest possible mental state that would apply would be "knowingly."
When will this matter? (1) Failure to give an instruction on this issue might merit reversal on the gun minimum. (2) If the gun minimum is somehow attached to a reckless act (accidental discharge of a firearm, for example, you might get an outright acquittal. I personally don't recall ever seeing the gun minimum attached to an accidental discharge, but I can't remember the last time I had an accidental discharge case, so my experience is, self-evidently, limited.
Please let me know if you've seen a case where the gun minimum was attached to, say, an Assault III, based on recklessly causing injury with a deadly or dangerous weapon.
