IF YOU DON’T USE A FIREARM AS IT IS INTENDED TO BE USED, DOES IT STILL QUALIFY AS “USE OF A FIREARM” TO MAKE A SENTENCE MORE HARSH?

Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.

State v. George, 891 P.2d 1118 (Kan. Ct. App. 1995).

This case answers the following question:

Is hitting a victim with an unloaded gun an aggravating factor that will require the court to impose a harsher sentence?

The issue in this case is whether hitting a victim with an unloaded gun constitutes use of a firearm in in the commission of an aggravated battery. When a firearm is used to commit aggravated assault or aggravated battery, the offender’s sentence shall be presumed imprisonment.

In this case, George hit his ex-wife three or four times, hit her on the head with a handgun, and stabbed her in the leg with a serrated knife. As part of a plea deal, George pled guilty to aggravated battery, and the State dismissed a charge of aggravated assault. A sentencing guidelines report stated that George was not eligible for retroactive application of the guidelines because he used a firearm in the commission of the crime. George filed an objection to the report and requested a hearing where he argued that he did not use a firearm in the commission of aggravated battery. The court agreed that a firearm was not used in the commission of the offense but denied George’s request for sentence conversion for other reasons.

When a firearm is used to commit aggravated assault or aggravated battery, the offender’s sentence shall be presumed imprisonment. The fact that George struck his ex-wife on the head with a gun is stipulated. These stipulated facts support a finding that a firearm was present in the commission of the aggravated battery. In determining whether the firearm was used in the commission of the aggravated battery, the court looked to the legislature and other states for guidelines. The court first found that the intent of the legislature in imposing a mandatory minimum sentence where a firearm is used in the commission of specified crimes was to deter the use of a firearm. In a Kansas Supreme Court case, the court found that the use of a gun in an aggravated battery is not limited to firing it for purposes of the term use under the statute. In that case, the court found that the term use of a firearm covered using a gun to push someone over a railing. Since that is considered use of a firearm, then hitting someone with a gun must also be considered use of a firearm, since it is a more direct use of the gun. In looking at other states, the court found that a California case looked to the dictionary definition of the word use, finding that use means to carry out a purpose or action by means to, to make instrumental to an end or process, and to apply to advantage.

The Court of Appeals of Kansas held that the concept of “use” within K.S.A 1993 Supp. 21-4704(h) should be broadly construed. The court held that the presumption of imprisonment for use of a firearm in the commission of a crime must apply to George’s guidelines sentence. For these reasons, the court reversed and remanded the case.