Unlawful Discharge of Firearm Charged for Each Separate Shot
Multiple Gun Shots Means Multiple Felony Unlawful Discharge Charges
The Utah Supreme Court recently decided State v. Rasabout, 2015 UT 72.
Andy Rasabout was a member of the street gang called the Tiny Oriental Posse. On November 1, 2007, he was riding shotgun in a car when he fired twelve shots from a Glock 9 mm semiautomatic pistol at a house and at Lee Tran’s parked car. Mr. Tran was a rival in the Original Laotian Gangsters gang. He was inside the house at the time of the gunshots, along with two young girls and their mother asleep upstairs, several other people in the basement, and one man in the carport smoking a cigarette. A jury convicted him of twelve felony counts of unlawful discharge of a firearm, in violation of Utah Code section 76-10-508. At Mr. Rasabout’s request, the trial court merged the twelve counts and sentenced Mr. Rasabout on the basis of one conviction, but the court of appeals reversed.
The main question of this case is what the allowable unit of prosecution is for the crime of unlawful discharge of a firearm. The court of appeals concluded that the unit of prosecution under the firearm discharge statute is each discrete shot. However, Mr. Rasabout reasons that he only violated the statute once because a single continuous intent motivated him to fire all twelve shots. On appeal, the Supreme Court of Utah agreed with the State, which argued that the legislature criminalized each discrete shot.
Although not all statutes explicitly define the allowable unit of prosecution, the unit of prosecution determines whether a perpetrator’s conduct constitutes one or more violations of that offense. Identifying this allowable unit of prosecution for an offense is a question of statutory construction. Thus, the Court looked at the plain language of the provision at issue to determine the intent of the legislature. In doing so, the Court determined it was reasonable for the legislature to criminalize each shot fired because each shot carries an independent harm. If this wasn’t the case, an individual shooting would not have a deterrent from shooting more than once. The Court says that if each shot fired is not criminalized, then essentially the individual has “a buy one, harm as much as you like discount.” State v. Rasabout, 2015 UT 72, ¶ 14, 356 P.3d 1258, 1264 (Sup.Ct.).