June 26, 2014
STATE OF OREGON, Respondent on Review,
RONALD ALAN EVERETT, Petitioner on Review
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 Piatt testimony about the Outsiders
and the fact that, if a member were found to have cooperated with the police, the Outsiders would " handle" the matter; that is, " anything from making the person understand to killing them." At the close of the state's case-in-chief, defendant moved for a judgment of acquittal on the two counts of soliciting Van Alstine to commit aggravated murder and second-degree assault, arguing that the state had failed to present evidence that defendant had solicited Van Alstine to engage in specific conduct constituting a crime. The state responded that it had introduced evidence that defendant had solicited Van Alstine to aid and abet the murder of Piatt and that such evidence established solicitation to engage in specific conduct constituting a crime. The trial court agreed with the state and denied defendant's motion. The jury returned guilty verdicts on both counts of soliciting Van Alstine and also returned a guilty verdict on the charge of soliciting Piatt. The trial court then entered a single judgment that convicted defendant of solicitation to commit murder on two counts (Piatt and Van Alstine) and that merged the count of solicitation for second-degree assault with the count for solicitation to commit murder (Van Alstine).
Defendant appealed, challenging the trial court's denial of his motion for a judgment of acquittal on the charges of soliciting Van Alstine to commit aggravated murder and second-degree assault. As we have noted, the [355 Or. 674] Court of Appeals affirmed, Everett, 249 Or.App. 139, 274 P.3d 297, and we allowed defendant's petition for review.
On review, defendant focuses on the trial court's denial of his motion for judgment of acquittal on the charge of soliciting Van Alstine to commit the aggravated murder of Piatt. According to defendant, the Court of Appeals erred in concluding that the state had produced sufficient evidence to prove that he had solicited Van Alstine to aid and abet the commission of aggravated murder. In his brief to this court, defendant accepts the Court of Appeals' premise that proof of solicitation to aid and abet aggravated murder would suffice; his argument is that there was no evidence that he solicited Van Alstine to aid and abet that crime. In defendant's view,
"[d] elivery of the DVD would not have promoted or facilitated a murder; at most, it is a thing that would have created animosity towards Piatt. Whether that animosity would have caused anyone to murder him would have been a decision made by the murderer, and the resulting crime would have been solely the crime of the murderer."
At best, defendant argues, the evidence showed that defendant solicited Van Alstine to solicit someone in the Outsiders to murder Piatt, which is not what the state charged.
The state responds that the trial court correctly denied defendant's motion for judgment of acquittal. According to the state, if Van Alstine had delivered the materials to the Outsiders and the Outsiders had murdered or assaulted Piatt, then Van Alstine would have been criminally liable for that crime as an accomplice because the delivery would have constituted aiding and abetting the murder. See ORS 161.155(2)(b) (one who aids or abets another person who commits a crime is criminally liable for that person's criminal conduct). By asking Van Alstine to engage in conduct that--in the state's view--would establish accomplice liability, defendant's conduct satisfied the statutory elements of solicitation.
As defendant frames it in his brief to this court, the issue before us is the sufficiency of the evidence to prove that defendant solicited Van Alstine to aid and abet the [355 Or. 675] aggravated murder of Piatt. To " aid and abet" means to advise, counsel, procure, or encourage another to commit a crime. State v. Rosser, 162 Or. 335, 344, 91 P.2d 295 (1939). To " abet" means " to countenance, assist, [or] give aid." State v. Start, 65 Or. 178, 182, 132 P. 512 (1913). Accordingly, evidence showing that defendant solicited Van Alstine to advise, counsel, procure, encourage, or countenance, assist, or give aid to someone else--in this case, the Outsiders--to
commit aggravated murder is sufficient to establish that defendant solicited Van Alstine to commit aggravated murder.
The record shows that defendant urged and entreated Van Alstine to deliver a DVD and a copy of an indictment to the Outsiders. Defendant even promised his car as payment for Van Alstine's delivery of the information. Defendant had explained to Van Alstine that the DVD and the indictment contained information showing that Piatt, one of the club's members, had cooperated with the police and that the Outsiders, upon receipt of that information, would " handle," " take care of," and " get rid of" Piatt, so that " Piatt would not testify" against him. The evidence shows that, within the Outsiders' milieu, such references meant assaulting or killing Piatt. In short, defendant solicited Van Alstine to assist or aid him in delivering information to the Outsiders that would cause the Outsiders to kill Piatt. If Van Alstine had delivered the information to the Outsiders, and if the Outsiders had responded to that information by killing Piatt, Van Alstine would have aided and abetted the killing. See State v. Lewis, 352 Or. 626, 641-42, 290 P.3d 288 (2012) (in determining whether state presented sufficient evidence to withstand motion for judgment of acquittal, court views evidence in light most favorable to state, resolves all conflicts in state's favor, and grants state benefit of all reasonable inferences that evidence supports).
[355 Or. 676] That Van Alstine never delivered the information to the Outsiders is irrelevant. The crime of solicitation is complete upon the act of soliciting, regardless of what else does or does not transpire. As Professor LaFave explains, " [f]or the crime of solicitation to be completed, it is only necessary that the actor, with the intent that another person commit a crime, have enticed, advised, incited, ordered, or otherwise encouraged that person to commit a crime. The crime solicited need not be committed." Wayne R. LaFave, 2 Substantive Criminal Law § 11.1, 189 (2d ed 2003). That is because the underlying rationale for the offense is that the solicitation itself is considered sufficiently dangerous to justify punishment, regardless of whether the solicitation is successful. Pertinent in that regard is the commentary to the Model Penal Code,
on which the wording of ORS 161.435(1) was based:
" Purposeful solicitation presents dangers calling for preventive intervention and is sufficiently indicative of a disposition towards criminal activity to call for liability. Moreover, the fortuity that the person solicited does not agree to commit or attempt to commit the incited crime [355 Or. 677] plainly should not relieve the solicitor of liability, when otherwise he would be a conspirator or an accomplice."
American Law Institute, Model Penal Code § 5.02(1), 82 (Tentative Draft No. 10 1960); see also Kimberly Kessler Ferzan, Inchoate Crimes at the Prevention/Punishment Divide, 48 San Diego L Rev 1273, 1275 (2011) (" inchoate crimes * * * are primarily aimed at preventing a harm" ).
The Oregon Criminal Law Revision Commission--which drafted what is now ORS 161.435(1)--confirmed its intention to reflect that policy in Oregon's statutory definition of the crime of solicitation. Commentary to Criminal Law Revision Commission Proposed Oregon Criminal Code, Final Draft and Report § 57 (July 1970). Quoting from the commentary to the 1960 Model Penal Code, the Commission stated that " [p]urposeful solicitation presents dangers calling for preventive intervention and is sufficiently indicative of a disposition toward criminal activity to call for liability." Commentary § 57 at 56. The Commission added that " the fortuity that the person solicited does not agree to commit or attempt to commit the incited crime plainly should not relieve the solicitor of liability." Id. To make the point, the Commission then explained by means of hypothetical that,
" where A solicits B to commit a crime specified by A (or where A solicits B to solicit C to commit such crime), A's act constitutes the act of solicitation whether or not B (or C, as the case may be) actually commits the crime or attempts to commit the crime."
Id. (quoting Commentary to the Model Penal Code). In other words, the crime of solicitation is complete when the defendant engages in the act of soliciting, regardless of whether anything actually happens as a result of the solicitation.
For the same reason, the fact that there is no evidence that the Outsiders, upon receipt of the DVD and the indictment, actually would have killed Piatt is also beside [355 Or. 678] the point. Whether or not the Outsiders would have killed Piatt, the fact remains that the solicitation was complete at the moment that defendant asked Van Alstine to deliver the information for the purpose of causing the murder to occur.
We conclude that the trial court did not err in denying defendant's motion for judgment of acquittal.
The decision of the Court of Appeals and judgment of the circuit court are affirmed.