State v. Kyger

                                      548

         Argued and submitted April 25, 2019, affirmed July 22, 2020


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                    SCOTT WILLIAM KYGER,
                       Defendant-Appellant.
                  Clackamas County Circuit Court
                       17CR08793; A165404
                                  

    For attacking two men with a razor blade, the state charged defendant with,
among other things, two counts of attempted aggravated murder. At defendant’s
bench trial, the state’s theory on the attempted aggravated murder counts was
that, in each instance, defendant had taken a substantial step toward killing
the victim under circumstances in which (had defendant succeeded) there would
have been more than one homicide victim. After the court found defendant guilty,
he moved in arrest of judgment on the ground that the state’s theory was not
legally viable. He argued that, in the context of aggravated murder, the number
of victims involved in a criminal episode is a circumstance element that cannot, as a matter of law, be attempted. The court denied the motion. Defendant
appeals, assigning error to the court’s denial of his motion in arrest of judgment
and renewing his arguments on appeal. Held: The trial court did not err. Under
ORS 161.405, proof of an attempt offense simply requires proof that a person
intentionally engaged in conduct that constituted a substantial step toward the
completed offense, such that proof that a person intentionally engaged in conduct
constituting a substantial step toward the killing of more than one person in the
same criminal episode establishes attempted aggravated murder.
    Affirmed.



    Michael C. Wetzel, Judge.
   Anne Fujita Munsey, Deputy Public Defender, argued
the cause for appellant. Also on the opening brief and a
reply brief was Ernest G. Lannet, Chief Defender, Criminal
Appellate Section, Office of Public Defense Services. Scott
W. Kyger filed the supplemental brief and a reply brief
pro se.
   Timothy A. Sylwester, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Cite as 

 (2020)                        549

  Before Lagesen, Presiding Judge, and DeVore, Judge, and
James, Judge.
  LAGESEN, P. J.
  Affirmed.
550                                            State v. Kyger

        LAGESEN, P. J.
         This case presents the question whether an attempted
aggravated murder charge based on the theory that the
defendant had the objective of killing two or more persons in
the same criminal episode is legally tenable. Defendant was
a backseat passenger in a car when he punched another passenger and then drew a razor blade and attacked two other
men in the car. The state charged him with two counts of
attempted aggravated murder for the razor-blade attacks, as
well as several other offenses for his conduct during the episode. Defendant waived his right to a jury trial and the case
was tried to the court. The state’s theory on the attempted
aggravated murder counts was that, in each instance, defendant had taken a substantial step toward killing the victim
under circumstances in which (had defendant succeeded)
there would have been more than one homicide victim.
After the court found defendant guilty, he moved in arrest
of judgment on the ground that the state’s theory was not
legally viable. He argued that, in the context of aggravated
murder, the number of victims involved in a criminal episode is a circumstance element that cannot, as a matter of
law, be attempted. The court denied the motion. We conclude
that, under State v. Quintero, 

, 

(1991), modified on other grounds on recons, 

,

, rev den, 

 (1992), the court correctly
denied defendant’s motion in arrest of judgment. Defendant
raises two pro se supplemental assignments of error that we
also reject. We therefore affirm.
         The question raised by defendant’s motion in arrest
of judgment is one of law. We therefore review for legal error.
State v. Stout, 

, 

 (2016), aff’d,

, 

 (2018).
         The victims on the counts of attempted aggravated
murder, Z and G, along with a third man, B, were “work
colleagues” (as the prosecutor described them below) in a
scheme buying and selling mobile phones. G was the boss. B
and Z worked for G. Their job was to recruit people willing
to take a hit to their credit score in exchange for compensation, typically homeless people, to obtain mobile phones
from mobile phone stores. They would instruct the recruits
on what phones to obtain, and how to obtain them, and
Cite as 

 (2020)                                 551

front any funds needed for the acquisitions. A recruit who
obtained the right phones would be paid $100. A recruit who
obtained no phones or the wrong phones would be paid nothing. G would then resell the phones at higher prices.
         Defendant and his girlfriend were among the
recruits. G, Z, and B picked them up in Clackamas. After
failed attempts to purchase phones at Portland-area stores
(stores that were starting to catch on to the scheme), the
group drove to Salem so that defendant and his girlfriend
could attempt to purchase phones from Salem stores. They
obtained phones at one store, but they were the wrong
phones. Although the store accepted the return of those
phones, it grew suspicious and would not give defendant
any more phones. Although defendant went to several other
stores, none of those stores would sell phones to him.
         The group returned to Portland. During the drive,
G told defendant and his girlfriend that they would not be
paid because they did not get any phones. Angered, defendant punched B in the head two or more times, sliced G’s face
and neck so it looked like “hamburger,” and slit Z’s throat.
He then jumped out of the still-moving car and ran from the
scene. Defendant was apprehended about two weeks later.
         For his razor-blade attacks on G and Z, the state
charged defendant with two counts of attempted aggravated
murder. As to those counts, the indictment alleged:
       “The defendant, on or about April 25, 2016, in Clackamas
   County, Oregon, did unlawfully and intentionally attempt
   to cause the death of [Z], another human being, defendant
   having unlawfully and intentionally attempted to cause
   the death of [G], an additional human being, in the course
   of the same criminal episode.
      “…
       “The defendant, on or about April 25, 2016, in Clackamas
   County, Oregon, did unlawfully and intentionally attempt
   to cause the death of [G], another human being, defendant
   having unlawfully and intentionally attempted to cause
   the death of [Z], an additional human being, in the course
   of the same criminal episode.”
        Defendant waived his right to a jury, and the case
was tried to the court. The court found defendant guilty of
those two charges, and a number of others.
552                                                            State v. Kyger

         Defendant then filed a motion in arrest of judgment
on the attempted aggravated murder counts. He argued
that, for purposes of aggravated murder, the presence of
another victim is a circumstance element and that, further,
a person cannot attempt to commit a circumstance. Thus,
defendant asserted, he was guilty only of attempted murder,
and the court should reduce the charges—and convictions—
to attempted murder. The state responded that Quintero
rejected a comparable argument, thereby foreclosing defendant’s argument. The court denied the motion, relying on
Quintero. Defendant appealed.
         On appeal, defendant assigns error to the trial
court’s denial of his motion in arrest of judgment. He argues,
much as he did below, that a person cannot attempt a circumstance element of a crime. Thus, defendant reasons, a
person who takes a substantial step toward killing two or
more people in a single criminal episode, but succeeds at
killing none of them, has committed only attempted murder
with respect to each potential victim. Defendant urges us
to conclude either that Quintero does not control or, alternatively, that we should overrule it, in view of the Supreme
Court’s subsequent decision in State v. Turnidge (S059155),

, 

 (2016), cert den, ___ US ___, 

 (2017), and our subsequent decision in State v.
Snyder, 

, 

 (2017), which, in defendant’s view, undercut Quintero’s conclusion. The state
responds that Quintero is dispositive and that neither
Turnidge nor Snyder demonstrate that it should be overruled. For the reasons that follow, we agree with the state.
         Under ORS 163.095(1)(d) (2015), amended by Oregon
Laws 2019, chapter 635, section 1, a person committed the
offense of aggravated murder when the person committed
the offense of murder and “[t]here was more than one murder victim in the same criminal episode as defined in ORS
131.505.”1 Under ORS 161.405, a person commits the inchoate crime of “attempt to commit a crime when the person

    1
      The 2019 legislature made substantial amendments to the homicide statutes, including to ORS 163.095. Or Laws 2019, ch 635, § 1. All references to ORS
163.095 in this opinion are to ORS 163.095 (2015), the version in effect at the time
defendant committed his crimes.
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 (2020)                                 553

intentionally engages in conduct which constitutes a substantial step toward commission of the crime.” ORS 161.405. The
core question in this case is whether a person who takes a
substantial step toward murdering two or more people in the
same criminal episode, but does not end up killing anyone at
all, commits the crime of attempted aggravated murder.
         Under our en banc decision in Quintero, the answer
to that question is yes. In that case, two of the defendants
were charged with, and convicted of, attempted aggravated
murder under the theory that they each had attempted to
kill more than one person in the same criminal episode. 

. Although the defendants had attempted
to kill more than one person, they did not succeed in killing anyone. 

. Much like defendant here, the defendants argued that the charges should be dismissed, or that
acquittal was required, because, in their view, absent a
murder victim, “it is a physical, legal and logical impossibility to have the crime of Attempted Aggravated Murder.”

 (internal quotation marks omitted). Relying on the definition of the crime of attempt in ORS 161.405, we rejected
that argument, explaining that proof of an attempt offense
simply required proof that a person intentionally engaged in
conduct that constituted a substantial step toward the completed offense, such that proof that a person intentionally
engaged in conduct constituting a substantial step toward
the killing of more than one person in the same criminal
episode establishes attempted aggravated murder:
      “An attempt, by definition, does not require that all elements of the offense be completed. The state presented evidence to show that defendants had intentionally engaged in
   conduct constituting a substantial step toward the murder
   of more than one person. That crime is attempted aggravated murder.”

 Thus, as the trial court correctly recognized, Quintero
foreclosed it from granting defendant’s motion in arrest of
judgment.
         Defendant argues that two cases—the Supreme
Court’s decision in Turnidge and our own decision in
Snyder—undercut Quintero, requiring us to overrule it and
hold, to the contrary, that an attempt to kill more than one
554                                           State v. Kyger

person in the same criminal episode does not constitute
attempted aggravated murder under ORS 161.405 and ORS
163.095(1)(d) unless there is at least one murder victim. We
disagree that Turnidge and Snyder require us to overrule
Quintero.
         First, our decision in Quintero tracks the text
of ORS 161.405, as that text has been interpreted by the
Supreme Court. Under the plain terms of ORS 161.405, “[a]
person is guilty of an attempt to commit a crime when the
person intentionally engages in conduct which constitutes
a substantial step toward commission of the crime.” As
the Supreme Court has explained, this means that a person commits the inchoate crime of attempting to commit a
particular crime when the person (1) intentionally—that is,
with the “conscious objective” of engaging in the particular
crime, (2) engages in conduct that constitutes a substantial
step toward the particular crime. State v. Walters, 

, 

, cert den, 

 (1991). To
qualify as “a substantial step toward commission of the
crime, the ‘defendant’s conduct must (1) advance the criminal purpose charged and (2) provide some verification of the
existence of that purpose.’ ” State v. Kimbrough, 

, 

 (2018) (quoting Walters, 

). When
that definition of attempt is considered in connection with
the particular crime of aggravated murder as defined by
ORS 163.095(1)(d), those provisions easily capture a person
who, with the conscious objective of killing multiple persons
in the same criminal episode, takes steps in furtherance
of that objective, even if the person ultimately succeeds in
killing no one, which is what we ultimately concluded in
Quintero.
         Second, our decision in Quintero is consistent with
the legislature’s purpose in criminalizing the inchoate crime
of attempt. See generally Or Laws 1971, ch 743, §§ 54-56;
Commentary to Criminal Law Revision Commission
Proposed Oregon Criminal Code, Final Draft and Report,
§§ 54-56, 51-55 (July 1970). Those provisions were intended
to get at the danger presented by people who have conscious criminal objectives and act in furtherance of those
objectives, even when those criminal objectives are not
achieved:
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 (2020)                                555

      “The law of attempt is now recognized as being more
   properly directed at the dangerousness of the actor—the
   threat of the actor’s personality to society at large.
      “…
      “The Model Penal Code comment on situations of this
   kind is well expressed as follows:
      “ ‘In all of these cases (1) criminal purpose has been
   clearly demonstrated, (2) the actor has gone as far as he
   could in implementing that purpose, and (3) as a result, the
   actor’s “dangerousness” is plainly manifested.’ ”
Commentary at § 55 at 52-53. Holding a person responsible for attempted aggravated murder when the person has
the criminal purpose of killing more than one person in the
same criminal episode, and takes substantial steps toward
that criminal objective, is consistent with that legislative
intent to target the dangerousness of an actor who has the
purpose of killing more than one person—an intent that
would be frustrated were we to conclude that a person with
the conscious objective of killing more than one person in
the same criminal episode could be liable only for attempted
murder if the person does not, in the end, kill anyone.
         Third, neither Turnidge nor Snyder addressed the
issue presented here and in Quintero: whether intentionally engaging in conduct that constitutes a substantial step
toward killing two or more people in the same criminal episode amounts to the crime of attempted aggravated murder where, as here, that intentional conduct does not ultimately cause the death of any person. Turnidge addressed
the completed offense of aggravated murder under ORS
163.095(1)(d) and, in particular, whether proof of the completed offense required proof of the attendant circumstance
that the defendant intended to cause the death of more than
one victim in the same criminal episode. Turnidge, 

. After reviewing the text, context, and legislative
history of ORS 163.095, the court concluded that proof of
the completed offense did not require proof that a defendant
intended to kill more than one victim in the same criminal
episode. 

 The court did not address the inchoate crime of
attempt at all. 

 For that reason, Turnidge does not supply
insight into whether a person who engages in conduct with
556                                             State v. Kyger

the conscious purpose of killing more than one person in the
same criminal episode, but succeeds in killing no one, commits the crime of attempted aggravated murder.

         Snyder, on the other hand, did address the inchoate offense of attempt, but with respect to driving under
the influence of intoxicants (DUII) and not with respect to
aggravated murder. 288 Or App at 60. In Snyder, the defendant was charged with DUII. Id. He requested that the jury
be instructed on attempt, under the theory that the evidence would allow for the jury to find that he “was at most
attempting to be sufficiently intoxicated” to commit DUII,
but was not yet intoxicated enough to have committed DUII.
Id. at 61. We rejected that argument, reasoning that, under
the case law, “[a] DUII defendant’s level of intoxication …
is a question of status that exists regardless of conduct or
purpose.” Id. at 62. Consequently, “a nonintoxicated driver
who has recently consumed alcohol is not attempting, in any
legal sense of the word, to commit DUII simply because he
might become intoxicated while still driving.” Id. (emphasis
in original). That is, “simply driving after having consumed
alcohol” is not behavior that is “proscribed by law,” regardless of whether the person may have intended to consume
enough alcohol to result in legal intoxication. Id.

          We recognize that some aspects of our analysis
in Snyder support defendant’s view as to how the attempt
statute should work with the underlying offense of aggravated murder based on the killing of more than one victim.
In defendant’s view, the presence of an additional victim
for purposes of aggravated murder is analogous to the status of being intoxicated for purposes of DUII, in that both
are attendant circumstances that do not require proof of a
mental state for proof of the completed crime. He argues
that Snyder stands for the proposition that a person cannot
“attempt” an attendant circumstance of that nature because
it is a binary status that either exists or does not. Therefore,
in defendant’s view, a person who does not succeed in killing
at least one person had not attempted, for purposes of the
law, to commit the crime of attempted aggravated murder.
Although that comparison between this case and Snyder is
not without some force, it ultimately does not persuade us
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 (2020)                              557

that our straightforward reading of the attempt statute in
Quintero is wrong and should be overruled.
         For one, as explained above, that reading is consistent with the text of the attempt statute and with the legislative intentions in defining the inchoate crime of attempt.
The court in Snyder did not address Quintero or purport to
be displacing its holding. Further, the analysis in Snyder
was specific to the “status” of being intoxicated under DUII
statutes, and there is no reason to believe that the court
was creating a rule to apply more broadly to a context like
attempted aggravated murder, or that the Snyder court
viewed the status of being intoxicated under the DUII statutes as equivalent to the circumstance of a criminal episode involving more than one murder victim that defines the
offense of aggravated murder under ORS 163.095(1)(d). See
Snyder, 288 Or App at 62 (explaining that “simply driving
after having consumed alcohol” is “perhaps inadvisable” but
“not proscribed by law, and does not constitute an attempt
to commit a criminal act”). Finally, Quintero is not the only
one of our published cases to recognize that a person commits the offense of attempted aggravated murder by intentionally engaging in conduct that constitutes a substantial
step toward the killing of more than one person in the same
criminal episode, even if that conduct does not result in the
death of anyone. See State v. Goltz, 

, 

 (2000), rev den, 

 (2001) (holding that verdicts
on two counts of attempted aggravated murder based on the
defendant’s unsuccessful attempt to kill two people in the
same criminal episode did not merge; concluding that there
are as many counts of attempted aggravated murder as
there are potential victims). Defendant has not persuaded
us that Turnidge and Snyder, neither of which dealt with the
issue at hand, call that entire line of authority into question.
         In sum, under Quintero, the trial court correctly
denied defendant’s motion in arrest of judgment. In addition
to the assignment of error that defendant raises in his brief
submitted through counsel, defendant has raised two pro se
supplemental assignments of error. Having considered
them, we reject them without further written discussion.
        Affirmed.