and Submitted May 10, 2018
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.
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.
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.
Or. 68] BALMER, J.
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.
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
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.
wrote a letter, addressed to the unknown hitman. The letter
[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]
"[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.
"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
"2) Car titles/1968 Dodge Charger RT/Value 150, 000 easy
[364 Or. 70] "3) Jewelry
"4) Life Insurance Info
"Final bill = 80, 000 I will be paying you.
"[Father-in-law]-Natural death-Heart attack
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.
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.
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
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. 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.
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).
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.
crime of attempt is set out in ORS 161.405, which provides in
"(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 ...