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State v. Allen

Court of Appeals of Oregon

February 27, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
MARCELLUS RAMON ALLEN, Defendant-Appellant.

          Argued and submitted May 17, 2016

          Multnomah County Circuit Court 121034555; Cheryl A. Albrecht, Judge.

          Ryan Scott argued the cause and fled the briefs for appellant.

          Doug M. Petrina, Assistant Attorney General, argued the cause for respondent. Also on the answering brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General. Also on the supplemental brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Armstrong, Presiding Judge, and Egan, Chief Judge, and Shorr, Judge.

         Case Summary:

         Defendant appeals convictions for attempted aggravated murder and conspiracy to commit aggravated murder, contending that the trial court erred in denying his motion for judgment of acquittal and motion to suppress evidence. Held: The trial court erred in denying defendant's motion for judgment of acquittal on the two attempted aggravated murder charges. Under the Supreme Court's recent opinion in State v. Kimbrough, 364 Or. 66, 431 P.3d 76 (2018), an "attempt" occurs when a person intentionally engages in conduct that constitutes a substantial step toward the commission of a crime that the defendant intends to take part in personally. Soliciting another person to commit a crime does not constitute an attempt. Because there is no evidence that defendant intended to personally engage in conduct that would constitute any element of the crime of aggravated murder, the trial court erred in denying defendant's motion for judgment of acquittal. The trial court also erred in denying [296 Or.App. 227] defendant's motion to suppress evidence as to the remaining charge of conspiracy to commit aggravated murder. Under the Supreme Court's opinion in State v. Prieto-Rubio, 359 Or. 16, 36-37, 376 P.3d 255 (2016), the body-wire evidence was obtained in violation of defendant's right to counsel under Article I, section 11.

         Convictions for attempted aggravated murder reversed; conviction for conspiracy to commit aggravated murder reversed and remanded.

         [296 Or.App. 228] ARMSTRONG, P. J.

         While in custody on a pending murder charge and represented by counsel, defendant solicited a fellow inmate to murder a witness in the pending murder case.[1] As a result of that conduct, defendant was charged with and convicted of two counts of attempted aggravated murder and one count of conspiracy to commit aggravated murder. On appeal, defendant contends that the trial court erred in denying his motion for judgment of acquittal on the attempted aggravated murder and conspiracy charges and also erred in denying his motion to suppress evidence that he asserts had been gathered in violation of his right to counsel under Article I, section 11, of the Oregon Constitution. We agree with defendant that the trial court erred in denying the motion for judgment of acquittal on the attempted aggravated murder charges, and we therefore reverse the attempted aggravated murder convictions. We also agree that the trial court erred in denying defendant's suppression motion, and we therefore reverse and remand the conspiracy to commit aggravated murder charge.

         Defendant was arrested and indicted for a murder committed in May 2012. He was held in jail pending trial and received appointed counsel. While in jail, defendant offered Ali, a fellow inmate, money to kill a key witness to the murder. Ali reported defendant's offer to detectives who were investigating the May 2012 murder and, at their request, Ali agreed to wear a body wire to record conversations with defendant about the alleged murder for hire. Based on what defendant told Ali, both before and after he began wearing the wire, defendant was charged with, among other offenses, two counts of attempted aggravated murder and one count of conspiracy to commit aggravated murder, and the charges were joined with the pending murder charge.

         On defendant's motion, the trial court ruled that evidence gathered from the body wire should be excluded under Article I, section 11, from the trial on the murder charge [296 Or.App. 229] but was admissible on the charges of attempted aggravated murder and conspiracy to commit murder. Defendant was therefore tried separately, and convicted, on the murder charge. Allen, 288 Or.App. at 245.

         Defendant filed a motion for judgment of acquittal on the attempted aggravated murder and conspiracy charges, contending that the evidence would support the conviction of, at best, a solicitation, but not an attempt or a conspiracy to commit murder. The trial court denied defendant's motion and, after a jury trial, defendant was convicted of two counts of attempted aggravated murder and one count of conspiracy to commit aggravated murder.

         While this case was under advisement, the Supreme Court decided State v. Kimbrough,364 Or. 66, 431 P.3d 76 (2018), and we allowed supplemental briefing to address the effect of that opinion. Now, based on Kimbrough, defendant assigns error to the court's denial of his motion for judgment of acquittal, and the state concedes the error. We ...


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