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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?

Yes, hitting a victim with an unloaded firearm can still qualify as the "use of a firearm" to make a sentence more harsh. The case of State v. George, 891 P.2d 1118 (Kan. Ct. App. 1995) addresses this specific question and provides a detailed explanation of how the court interprets the use of a firearm in a criminal act.

Key Legal Question:

  • Does hitting a victim with an unloaded gun constitute "use of a firearm" under the law, and can it be an aggravating factor that results in a harsher sentence?

Case Summary:

In this case, George physically assaulted his ex-wife, hitting her on the head with a handgun and stabbing her with a knife. He eventually pled guilty to aggravated battery as part of a plea deal, and the State dropped a related charge of aggravated assault. When it came to sentencing, the court had to decide whether the act of striking the victim with a gun, even though it was not fired, qualified as "use of a firearm" under Kansas law, which would require a presumption of imprisonment.

George argued that he did not "use" a firearm in the way the law intended because he never fired the gun. However, the prosecution maintained that simply hitting someone with the gun should still be considered "use of a firearm" and should lead to a harsher sentence.

Court's Reasoning and Ruling:

The Court of Appeals of Kansas ultimately ruled that using a firearm does not need to be limited to firing it. According to the court:

  • The intent behind laws requiring harsher sentences for crimes involving firearms is to deter the use of firearms in violent crimes.

  • The term "use" should be interpreted broadly. In a previous Kansas Supreme Court case, even using a gun to push someone over a railing was considered "use" of a firearm under the statute.

  • The court consulted definitions from other states, such as a California case, which found that "use" means to carry out a purpose or action with an object—applying it to accomplish some goal. In this case, the gun was used to hit the victim, and thus it was instrumental in the crime, even though it wasn't fired.

Conclusion:

The court concluded that hitting someone with a firearm, even an unloaded one, still constitutes "use of a firearm" under Kansas law. Therefore, George's sentence was subject to enhancement due to the involvement of a firearm in the crime, even though the firearm was not fired. The presumption of imprisonment for crimes involving firearms applied to his sentencing.

Implication of the Ruling:

This case highlights that in Kansas, using a firearm does not strictly mean firing it. Even when a firearm is used as a blunt object or in another manner during the commission of a crime, it can still trigger the legal consequences associated with "use of a firearm," including harsher sentences.