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State v. Kimbrough

Supreme Court of Oregon, En Banc

December 6, 2018

STATE OF OREGON, Respondent on Review,
v.
DUSTIN KIMBROUGH, Petitioner on Review.

          Argued and Submitted May 10, 2018

          On review from the Court of Appeals. (CC 1200238CR) (CA A157030) [*]

          Meredith Allen, Deputy Public Defender, Offce of Public Defense Services, Salem, argued the cause and fled the briefs for the petitioner on review. Also on the briefs was Ernest G. Lannet, Chief Deputy Defender.

          Peenesh H. Shaw, Assistant Attorney General, Salem, argued the cause and fled the brief for the respondent on review. Also on the brief were Ellen Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

         [364 Or. 67] Case Summary: Defendant moved for a judgment of acquittal on four counts of attempted aggravated murder, three counts of attempted murder, and two counts of tampering with a witness. Defendant argued that the evidence showed that he intended to have a hitman (who, unknown to defendant, did not exist) commit the crimes and that this was insufficient to prove attempt. The trial court denied the motion and found the defendant guilty of those crimes. The Court of Appeals affirmed. Held: (1) The state was not required to prove that defendant's actions made the attempted crimes more likely to occur; (2) to be guilty of attempt, defendant must have engaged in conduct that constituted a substantial step toward a crime that defendant intended to commit personally; and (3) the trial court erred in denying defendant's motion for a judgment of acquittal on the challenged counts.

         The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed and the case is remanded to the circuit court for further proceedings.

          [364 Or. 68] BALMER, J.

         Criminal law has long encompassed what are sometimes known as "inchoate" crimes-"A step toward the commission of another crime, the step in itself being serious enough to merit punishment." Black's Law Dictionary 1250 (10th ed 2014). This case concerns the intersection of two of those crimes, solicitation and attempt. "Solicitation" occurs when a person "commands or solicits" another to commit or attempt to commit a crime, ORS 161.435, and "attempt" occurs when a person "intentionally engages in conduct which constitutes a substantial step toward the commission of [a] crime," ORS 161.405.[1]

         Defendant wished to have people killed and witnesses scared, so he sought to engage a hitman. For that, he was charged with and found guilty of several counts of attempted solicitation of aggravated murder and attempted solicitation of murder, which he has not challenged on appeal. But could he also be convicted of attempting to commit the substantive crimes that he wanted the hitman to commit? After reviewing the text and history of Oregon's attempt statute, we conclude that he could not.

         I. FACTS

         In August 2012, defendant was arrested on a charge of burglary in Wasco County. He was held in jail pretrial. Defendant told his cellmate, Crowley, that he wanted two witnesses in his burglary case "not to show up to trial." Defendant also told Crowley that he wanted three people killed: defendant's brother-in-law; defendant's father-in-law; and the Wasco County District Attorney, who was personally prosecuting the burglary case against defendant. Defendant asked Crowley if he knew anyone who had "killed someone before." Crowley responded that he did and suggested that he had an acquaintance who could carry out defendant's killings.

         Defendant wrote a letter, addressed to the unknown hitman. The letter read:

[364 Or. 69] "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. Like for example; I'm in here on a Burg I charge. I was trying to get cans for money. To feed my family. My wife and I are homeless living out of the back of a 1992 Suburban, know they are trying to charge her with Burg I also. All she did is drive the vehicle, and had no part of grabbing the cans. He has also a hand in the court-appointed attorneys. [Father-in-law] is leaving town October 15 for two [and a] half weeks.
"[Father-in-law]-Age 64-address [father-in-law's 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 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 meth through a syringe. (Dead)
"D.A. (District Attorney)-[D.A.'s full name]-Age 40s-(Dead)-[D.A.'s Oregon State Bar number].
"Witnesses in my and my wife's Burg I case. I just want them threatened.
"1) [Witness's name, address, telephone number, and date of birth]
"2) [Second witness's name, address, telephone number, and date of birth]
"There are three other safes in the house. I want you to get the stuff out of the safe. You can hang on to the stuff in the safe until you are paid. There are also my three dogs at the house.
“*****
"Stuff in safes
"1) Guns
"2) Car titles/1968 Dodge Charger RT/Value 150, 000 easy
[364 Or. 70] "3) Jewelry
"4) Life Insurance Info
"5) Money
"Final bill = 80, 000 I will be paying you.
"[Father-in-law]-Natural death-Heart attack
"[Brother-in-law]-Drug od
"D.A.-your choice."

         Defendant included a map of his father-in-law's house with the letter. The map contained some errors but one witness described it as a "very, very close" match to the layout of the house, and defendant's father-in-law testified that it was a "pretty accurate" representation of his house. Rooms were labeled, and the locations of the safes were marked. Defendant hesitated to give these materials to Crowley. After asking Crowley whether he was a cop- Crowley responded that he was not-defendant gave the letter and the map to Crowley, with the understanding that Crowley would pass them on to the hitman.

         As the days went by, defendant repeatedly asked Crowley when the hitman would be coming and when the murders would be carried out. Defendant and Crowley were placed in separate isolation cells but communicated by passing notes. Defendant continued to ask when the hitman was coming, expressed interest in meeting him, and reaffirmed his commitment to having the district attorney killed.

         The reason for the delay was that Crowley did not know a hitman and had not contacted one. Instead, Crowley had reached out to jail staff soon after defendant told Crowley that he wanted to have people killed. Crowley had expressed concern that defendant was dangerous. Crowley had given the letter and map that defendant had produced, as well as the notes that defendant had passed to Crowley, to law enforcement. Defendant was charged with four counts of attempted aggravated murder, four counts of solicitation of aggravated murder, three counts of attempted murder, three counts of solicitation of murder, and two counts of tampering with a witness.

          [364 Or. 71] The case was tried to the court. At trial, defendant moved for a judgment of acquittal on the attempted aggravated murder, attempted murder, and tampering with a witness charges.[2] Defendant argued that the state had failed to present evidence that defendant's conduct was a "substantial step" toward the substantive crimes, which is required for his conduct to constitute an attempt. The state argued that the evidence that had been presented was sufficient. The court denied the motion. Defendant also moved for a judgment of acquittal on the seven solicitation charges. The court granted that motion, but allowed the state to proceed against defendant on the lesser included counts of attempted solicitation of aggravated murder and attempted solicitation of murder. The trial court found defendant guilty on all remaining counts: Four counts of attempted aggravated murder, three counts of attempted murder, two counts of tampering with a witness, four counts of attempted solicitation of aggravated murder, and three counts of attempted solicitation of murder.[3]

         Defendant appealed, assigning error only to the trial court's denial of his motion for a judgment of acquittal on the attempted aggravated murder, attempted murder, and witness tampering counts. In the Court of Appeals, defendant renewed the arguments he had made at the trial court, and the state responded as it had before. The Court of Appeals determined that defendant's actions did rise to the level of a substantial step and affirmed defendant's convictions. To reach that conclusion, the Court of Appeals relied [364 Or. 72] on State v. Taylor, 47 Or. 455, 84 P 82 (1906), noting that "defendant's actions exceeded mere preparation because defendant had done all that he could have done under the circumstances to cause the murders of his intended victims." State v. Kimbrough, 285 Or.App. 84, 90, 395 P.3d 950, rev allowed, 362 Or. 38, 403 P.3d 781 (2017).

         II. INCHOATE CRIMES

         Before this court, defendant makes two different arguments. First, he argues that, because the hitman that defendant attempted to hire did not exist, his efforts to solicit a hitman to commit various crimes did not make the commission of any of those crimes more likely and thus could not constitute a substantial step required for an attempt. Second, defendant argues that, as a general rule, mere solicitation cannot constitute an attempt. In support of this argument, he relies on commentary from the 1970 Commission that redrafted Oregon's Criminal Code and was the source of Oregon's current attempt and solicitation statutes. This case thus presents a question of statutory interpretation and requires us to consider the statutes defining the crimes of solicitation and attempt, as well as the relationship between those crimes and several related statutory provisions. We do so by examining the text, context, and legislative history of those statutes. State v. Gaines, 346 Or. 160, 171-72, 206 P.3d 1042 (2009). We begin with the texts of the attempt and solicitation statutes and then delve more deeply into the development of those statutes as we discuss defendant's arguments on review.

         The crime of attempt is set out in ORS 161.405, which provides in part:

"(1) A person is guilty of an attempt to commit a crime when the person intentionally engages in conduct which constitutes a substantial step toward ...

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