Argued and Submitted March 14, 2013.
CC CR0800419, CA A140675 (Control), A144356. On review from the Court of Appeals.[*] .
George W. Kelly, Eugene, argued the cause and filed the brief for petitioner on review.
Douglas F. Zier, Senior Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
[355 Or. 671] LANDAU, J.
In this criminal case, defendant was charged with soliciting another person to commit aggravated murder. ORS 161.435(1). The evidence at trial showed that defendant asked the other person to deliver certain information to a third person, which defendant thought would cause that person to commit aggravated murder. The issue in this case is whether that evidence is sufficient to establish that defendant solicited the other person to commit aggravated murder. The trial court held that the evidence was sufficient. The Court of Appeals affirmed. State v. Everett, 249 Or.App. 139, 274 P.3d 297 (2012). That court reasoned that, because the evidence showed that defendant had solicited another person to engage in conduct that would have constituted
aiding and abetting murder, that amounted to soliciting to engage in conduct constituting murder itself. Id. at 144-45. For the reasons that follow, we agree and affirm.
The relevant facts are not in dispute. Defendant attempted to run over Clackamas County Deputy Sheriff Moss with his car in an effort to abscond from a traffic stop. While in jail awaiting trial on charges that arose out of that incident, defendant met Piatt, a former member of the " Outsiders Motorcycle Club," a group involved in illicit activities. Defendant knew Piatt to be a club " enforcer" --one who dealt with members who offended club rules.
Defendant asked Piatt to murder Moss, once Piatt was released from jail, to prevent Moss from testifying at defendant's upcoming trial. Unbeknownst to defendant, Piatt knew Moss from previous encounters and had worked with her as an informant. Piatt reported to authorities that defendant had asked him to kill Moss and submitted to an interview. Police recorded Piatt's interview on a DVD.
Defendant was tried and ultimately convicted of attempted second-degree assault and other charges arising [355 Or. 672] from the initial Moss incident. At trial, the state played Piatt's DVD interview, and defendant realized that Piatt had reported to the authorities that defendant had asked him to kill Moss. At about the same time, defendant, while still housed in jail, met another inmate, Van Alstine. Van Alstine was about to be released from jail. Over the course of several days, defendant had a number of conversations with Van Alstine about the fact that Piatt was a member of the Outsiders who had " ratt[ed] on him" to the police and that Piatt's interview with police had been recorded on a DVD. Defendant asked Van Alstine, once he was released from jail, to deliver to the Outsiders a copy of the Piatt interview DVD and a copy of an indictment containing Piatt's name. Defendant told Van Alstine to find the Outsiders' " clubhouse," on 82nd Avenue in Portland, and give the information to a person with an Outsiders vest patch, indicating that the person is a member of the club. Defendant explained that the Outsiders, upon receiving the information, would " take care of" and " get rid of" Piatt, that they would " handle it," so that " Piatt would not testify" against him. In exchange for the anticipated delivery, defendant told Van Alstine that he would give Van Alstine his car.
Van Alstine never obtained a copy of the DVD, and he never delivered anything to the Outsiders on defendant's behalf. Instead, he reported his conversations with defendant to the authorities. Defendant ultimately was charged with crimes arising out of his conversations with both Piatt and Van Alstine. As to the former, he was charged with soliciting Piatt to commit the aggravated murder of Moss. As to the latter, he was charged with soliciting Van Alstine to commit the aggravated murder and second-degree assault of Piatt.
[355 Or. 673] At trial, the state introduced evidence of the foregoing facts. In addition, the state elicited from ...