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State v. Kimbrough

Court of Appeals of Oregon

April 26, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
DUSTIN KIMBROUGH, Defendant-Appellant.

          Submitted February 9, 2016.

         Wasco County Circuit Court 1200238CR; George W. Neilson, Senior Judge.

          Ernest G. Lannett, Chief Defender, Criminal Appellate Section, and Meredith Allen, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Paul L. Smith, Deputy Solicitor General, and Peenesh H. Shah, Assistant Attorney General, fled the brief for respondent.

          Before Sercombe, Presiding Judge, and Tookey, Judge, and DeHoog, Judge.

         Case Summary: Defendant appeals a judgment convicting him of nine crimes, arguing that the trial court erred in denying his motion for judgment of acquittal and entering convictions on four counts of attempted aggravated murder, three counts of attempted murder, and two counts of tampering with a witness. Defendant contends that the trial court erred in denying his motion for judgment of acquittal on those counts, because defendant did not take a substantial step toward the commission of each of those crimes, and thus cannot be guilty of attempt. Held: Viewing the evidence in the light most favorable to the state, a reasonable factfinder could conclude that defendant's conduct constituted a substantial step toward the commission of aggravated murder, murder, and tampering with a witness. As a result, the trial court did not err in denying defendant's motion for judgment of acquittal.

          TOOKEY, J.

         Defendant appeals a judgment convicting him of nine crimes, contending that the trial court erred in denying his motion for judgment of acquittal and entering convictions on four counts of attempted aggravated murder (Counts 1 through 4), three counts of attempted murder (Counts 5 through 7), and two counts of tampering with a witness (Counts 15 and 16).[1] Defendant argues that the trial court erred in denying his motion for judgment of acquittal on those counts, because defendant did not take a substantial step toward the commission of each of those crimes, and thus cannot be guilty of attempt. For the reasons that follow, we affirm.

         In reviewing a trial court's denial of a defendant's motion for judgment of acquittal, "[w]e view the evidence in the light most favorable to the state to determine whether a rational trier of fact, making reasonable inferences, could have found the essential elements of the crime proved beyond a reasonable doubt." State v. Hall. 327 Or 568, 570, 966 P.2d 208 (1998).

         Defendant was incarcerated pending prosecution on a burglary charge. Defendant became cellmates with another inmate, Crowley. Defendant told Crowley that defendant "wanted his witnesses [to his burglary case] to not show up to trial, " and that "he wanted people dead." Specifically, defendant mentioned his father-in-law, brother-in-law, and the Wasco County District Attorney. Defendant asked Crowley whether Crowley knew of anyone who had killed a person before. Crowley responded, "Yeah, I have. I mean, I've been to prison. I mean, I know people that have killed people." Defendant asked whether Crowley "could have somebody killed" and Crowley responded affirmatively. In fact, Crowley did not know of such a person. After hearing that Crowley "might know somebody that could do something, " defendant began "writing stuff, " including writing people's names. Within hours, Crowley sent several inmate request forms to jail staff, asking to speak to detectives because "someone could get hurt." Sergeant Birchfield visited Crowley, and Crowley told Birchfield what defendant had said.

         When Crowley returned to his cell, defendant was writing a letter. According to Crowley, defendant "wrote out a couple letters, and he wanted to get it perfect. His detail about it had to be perfect." When defendant finished writing the letter, he gave it to Crowley to read, then put the letter in an envelope, placed it underneath his mattress, and asked Crowley if he was a cop. The next morning, defendant gave Crowley the envelope. Defendant believed that Crowley would "put [the envelope in Crowley's personal] property" and release it to someone outside the prison "so that a hit man could get it for [defendant] and take care of what he wanted [taken] care of."[2] The envelope contained a map of defendant's father-in-law's house and a letter stating:

"Dear stranger,
"I have a job for you. I need your help. There are three people I need taken care of. First one is my father-in-law. *** Second is my brother-in-law. *** The third is the D.A. (District Attorney). He is a piece of shit, and tears families apart. He is just as crooked as the cops in this town. *** [My father-in-law] is leaving town October 15 for two [and a] half weeks. [Father-in-law] - Age 64 - address * * * -health - bad - has had a [triple] bypass 15 years ago - takes handful of pills a day. (Dead) Net worth 150, 000 to 200, 000 dollars life insurance policy. Not sure [of the] value.
"[Brother-in-law] - Age 36 - address - halfway house in Oregon or Washington/Life insurance 100, 000 to 150, 000. He is a recovering meth addict. Liked doing his meth through a [syringe]. (Dead) "D.A. (District Attorney) - [first and ...

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