363
Argued and submitted September 23, 2021, resubmitted January 25; decision
of Court of Appeals and judgment of circuit court affirmed March 22; petitioner
on review’s petition for reconsideration filed March 23, considered and under
advisement April 12, allowed by opinion April 21 2022
See 369 Or 604,
509 P3d 112 (2022)
STATE OF OREGON,
Respondent on Review,
v.
SCOTT WILLIAM KYGER,
Petitioner on Review.
(CC 17CR08793) (CA A165404) (SC S068337)
506 P3d 376
Defendant was charged with and convicted of two counts of attempted aggravated murder for cutting the necks of two people with a razor blade. Defendant
challenged the indictment, arguing that a circumstance element of an offense
must exist as a predicate for attempt liability, and that, because neither victim
died, the indictment did not properly allege the aggravating circumstance that
there was “more than one murder victim in the same criminal episode” under
ORS 163.095(1)(d). The trial court rejected that argument. The Court of Appeals
affirmed. Held: Attempted aggravated murder under ORS 163.095(1)(d) requires
intentional conduct constituting a substantial step toward causing the deaths
of more than one victim in the same criminal episode. The existence of multiple deaths is an attendant circumstance that must be present for the completed
crime of aggravated murder, but it is not required for the inchoate offense of
attempted aggravated murder.
The decision of the Court of Appeals and the judgment of the circuit court
are affirmed.
On review from the Court of Appeals.*
Anne Fujita Munsey, Deputy Public Defender, Office of
Public Defense Services, Salem, argued the cause and filed
the briefs for petitioner on review. Also on the briefs was
Ernest G. Lannet, Chief Defender.
Susan G. Howe, Assistant Attorney General, Salem, argued
the cause and filed the brief for respondent on review. Also
on the brief were Ellen F. Rosenblum, Attorney General, and
Benjamin Gutman, Solicitor General.
______________
* On appeal from Clackamas County Circuit Court, Michael C. Wetzel,
Judge. 305 Or App 548,
471 P3d 764 (2020).
364 State v. Kyger
Before Walters, Chief Justice, and Balmer, Flynn, Duncan,
Nelson, Garrett, and DeHoog, Justices.…
GARRETT, J.
The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.
______________
… Nakamoto, J., retired December 31, 2021, and did not participate in the
decision of this case.
Cite as 369 Or 363 (2022) 365
GARRETT, J.
During a single criminal episode, defendant cut the
necks of two people with a razor blade. For that conduct,
the state charged him with two counts of attempted aggravated murder under ORS 163.095 (2015)1 and ORS 161.405
(2015).2 ORS 163.095(1)(d) provides that one of the circumstances elevating murder to aggravated murder is the existence of “more than one murder victim in the same criminal
episode.” Defendant was convicted of both counts.
The question before this court is whether the state
charged a viable theory of attempted aggravated murder.
Defendant contends that the existence of “more than one
murder victim” is a circumstance that must exist for a
person to be guilty of aggravated murder; that it did not
exist here because neither victim died; and that defendant’s
intentional conduct did not amount to attempted aggravated murder because a person cannot “attempt” to commit
a circumstance element of an offense. In defendant’s view,
the allegations supported, at most, charges for attempted
murder. The trial court and the Court of Appeals disagreed
with defendant. We affirm.
I. BACKGROUND
Defendant and his girlfriend were recruited by
three people to participate in a scheme to make money by
purchasing and reselling cellular phones. Defendant did not
successfully purchase any phones, and he made no money in
the scheme. At the conclusion of their efforts, all five people
were in a vehicle, with defendant and his girlfriend seated
next to each other in the rear seat. Defendant grew angry
1
The legislature amended ORS chapter 163 in 2019. Or Laws 2019, ch 635,
§ 1. In the amended 2019 statute, the “more than one murder victim” circumstance element was moved from the category of “aggravated murder” to that of
“first-degree murder.” Id. § 3. The text of that element otherwise remained the
same. Id. Amendments to other sections of chapter 163 also do not affect our
analysis. Because the underlying events in this case occurred in 2016, all citations in this opinion are to the 2015 version of the statutes in ORS chapter 163,
unless stated otherwise.
2
The legislature also amended ORS 161.405 in 2019. Or Laws 2019, ch 635,
§ 15a. The amendments added “aggravated murder” to the Class A felony category of attempt. Those amendments did not change the definition of attempt.
Because the underlying events in this case occurred in 2016, all citations in this
opinion to ORS 161.405 are to the 2015 version, unless stated otherwise.
366 State v. Kyger
when he was informed that he would not be paid. When the
vehicle came to a stop, he reached across the seat, grabbed
the head of the victim seated behind the driver, and cut the
victim’s neck with a razor blade. He did the same thing to
the driver, and he struck the third victim with his fists. The
two victims of the razor-blade attack were injured but survived. Defendant later told police that he “wanted to kill” all
three victims.
The state charged defendant with, among other
counts, two counts of attempted aggravated murder, as
follows:
“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.”
After a bench trial, defendant was convicted of both attempted
aggravated murder counts and other crimes.
At sentencing, defendant renewed a pretrial demurrer by making a motion in arrest of judgment. Defendant
argued that the aggravating factor set out in ORS 163.095
(1)(d) is a circumstance element of the offense, not a conduct
element, and that a circumstance either exists or not—it
cannot be “attempted.” Thus, defendant insisted, the indictment failed to allege a valid theory of attempted aggravated
murder. The trial court disagreed and denied the motion.
On appeal, defendant renewed his argument. The
Court of Appeals affirmed, relying on its own precedent in
State v. Quintero, 110 Or App 247, 257,
823 P2d 981 (1991),
modified on other grounds on recons,
114 Or App 142,
834
P2d 496, rev den,
314 Or 392 (1992) (“The state presented
evidence to show that defendants had intentionally engaged
Cite as
369 Or 363 (2022) 367
in conduct constituting a substantial step toward the murder of more than one person. That crime is attempted aggravated murder.”). State v. Kyger,
305 Or App 548,
471 P3d 764
(2020).
We allowed review to consider defendant’s argument that, under ORS 163.095(1)(d), the death of “more than
one murder victim in the same criminal episode” is a circumstance that must exist for the state to properly charge
the inchoate crime of attempted aggravated murder.3
II. ANALYSIS
The parties’ arguments implicate two statutes: ORS
163.095, which defines the crime of aggravated murder,
and ORS 161.405, which defines the crime of attempt. We
resolve the interpretative dispute by discerning the intent
of the legislature as demonstrated by the text, context, and
any helpful legislative history. State v. Gaines, 346 Or 160,
171-72,
206 P3d 1042 (2009).
A. The Aggravated Murder Statute
Aggravated murder is a heightened form of criminal
homicide. ORS 163.095; ORS 163.115(1)(a). Criminal homicide is committed when a person intentionally, knowingly,
recklessly, or with criminal negligence causes the death
of another human being without justification or excuse.
ORS 163.005. Criminal homicide, if committed intentionally, is murder. ORS 163.115(1)(a). Murder becomes aggravated murder under specified circumstances. ORS 163.095.
This case concerns one of those circumstances, the murder
of more than one victim, as set out in ORS 163.095(1)(d).
Because other circumstances set out in ORS 163.095 provide relevant context, we include the full text of the statute
here:
“As used in ORS 163.105 and this section, ‘aggravated
murder’ means murder as defined in ORS 163.115 which is
committed under, or accompanied by, any of the following
circumstances:
3
Although defendant raised other issues in his petition for review, he failed
to present any briefing or argument on those issues. Accordingly, we do not reach
them.
368 State v. Kyger
“(1)(a) The defendant committed the murder pursuant
to an agreement that the defendant receive money or other
thing of value for committing the murder.
“(b) The defendant solicited another to commit the
murder and paid or agreed to pay the person money or
other thing of value for committing the murder.
“(c) The defendant committed murder after having
been convicted previously in any jurisdiction of any homicide, the elements of which constitute the crime of murder
as defined in ORS 163.115 or manslaughter in the first
degree as defined in ORS 163.118.
“(d) There was more than one murder victim in the
same criminal episode as defined in ORS 131.505.
“(e) The homicide occurred in the course of or as a
result of intentional maiming or torture of the victim.
“(f) The victim of the intentional homicide was a person under the age of 14 years.
“(2)(a) The victim was one of the following and the
murder was related to the performance of the victim’s official duties in the justice system:
“(A) A police officer as defined in ORS 181A.355;
“(B) A correctional, parole and probation officer or
other person charged with the duty of custody, control or
supervision of convicted persons;
“(C) A member of the Oregon State Police;
“(D) A judicial officer as defined in ORS 1.210;
“(E) A juror or witness in a criminal proceeding;
“(F) An employee or officer of a court of justice;
“(G) A member of the State Board of Parole and PostPrison Supervision; or
“(H) A regulatory specialist.
“(b) The defendant was confined in a state, county or
municipal penal or correctional facility or was otherwise in
custody when the murder occurred.
“(c) The defendant committed murder by means of an
explosive as defined in ORS 164.055.
Cite as 369 Or 363 (2022) 369
“(d) Notwithstanding ORS 163.115(1)(b), the defendant personally and intentionally committed the homicide
under the circumstances set forth in ORS 163.115(1)(b).
“(e) The murder was committed in an effort to conceal
the commission of a crime, or to conceal the identity of the
perpetrator of a crime.
“(f) The murder was committed after the defendant
had escaped from a state, county or municipal penal or
correctional facility and before the defendant had been
returned to the custody of the facility.”
ORS 163.095.
The legislature enacted the aggravated murder
statute as part of a sentencing bill in 1977. Or Laws 1977,
ch 370, § 1. The purpose of that bill was to enhance penalties for aggravated murder and impose harsher sentences
for dangerous offenders. Minutes, House Committee on
Judiciary, HB 2011, Mar 23, 1977. The 1977 bill provided for
different minimum sentences for “the most heinous” crimes,
which carried a sentence of life without the possibility of
parole, and what the legislature considered less heinous
crimes, which carried a mandatory minimum of 20 years.
Or Laws 1977, ch 370, § 2; Minutes, House Committee on
Judiciary, HB 2011, Apr 22, 1977. In 1981, the legislature
amended the statute to move the “multiple victims” provision at issue in this case to the “more heinous” category of
aggravated murder. Or Laws 1981, ch 873, § 1. Thus, we
understand from the statute’s text, context, and legislative
history that the legislature viewed murder as an especially
serious offense in cases with multiple victims.
Aggravated murder involving the circumstance
set out in ORS 163.095(1)(d) requires that the defendant
(1) intentionally; (2) caused the death of another human being;
(3) when there was more than one murder victim in the same
criminal episode.4 If the victims in this case had died and
the state had charged defendant with aggravated murder,
4
In ORS 163.095(1)(d), “criminal episode” refers to “continuous and uninterrupted conduct that establishes at least one offense and is so joined in time,
place and circumstances that such conduct is directed to the accomplishment of
a single criminal objective.” ORS 131.505(4). There is no dispute in this case that
the charged conduct occurred within a single criminal episode.
370 State v. Kyger
the state would not have been required to show that defendant acted with the intent to kill multiple victims. In State
v. Turnidge (S059155), 359 Or 364, 502, 504,
374 P3d 853
(2016), we held that the existence of “more than one murder
victim” in ORS 163.095(1)(d) is an attendant circumstance
rather than an aspect of the prohibited conduct, and that it
does not require proof of a mental state. Thus, so long as a
defendant acts with the intent to cause the death of at least
one person, the state does not have to prove whether he or
she specifically intended to kill more than one person.
Id. at
504. That conclusion in Turnidge is an important feature of
defendant’s argument here, as explained later in this opinion.
B. The Attempt Statute
The crime of “attempt” is set out in ORS 161.405(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 commission of the crime.”
The attempt statute was enacted as part of the Oregon
Criminal Code revision in 1971. Or Laws 1971, ch 743, § 54.
As we have explained, attempt is an “inchoate offense,”
along with solicitation and conspiracy, because it “may
result in a conviction even when no substantive crime has
been completed.” State v. Kimbrough, 364 Or 66, 73,
431 P3d
76 (2018).
This court has construed the attempt statute on two
occasions. In State v. Walters, 311 Or 80, 85,
804 P2d 1164,
cert den,
501 US 1209 (1991), we held that the statute codifies the Model Penal Code’s “substantial step” test, which
draws a line between conduct that is “mere preparation” for
criminal activity (and is insufficient to create liability), and
conduct that goes further:
“ORS 161.405 codifies the Model Penal Code’s ‘substantial step’ test for distinguishing acts of preparation from an
attempt. ‘In § 5.01(2), the Model Penal Code states that to
be a substantial step the act must be “strongly corroborative of the actor’s criminal purpose[,]” ’ i.e., defendant’s conduct must (1) advance the criminal purpose charged and
(2) provide some verification of the existence of that
purpose.”
Cite as 369 Or 363 (2022) 371
Id. at 85 (internal citations and footnotes omitted). In
Walters, we upheld the defendant’s convictions for attempted
first-degree kidnapping, attempted first-degree rape, and
attempted first-degree sodomy, reasoning that the evidence
was sufficient to permit a finding that he took a substantial
step toward the commission of each crime. Id. at 86 (“[The]
defendant’s persistent efforts to entice the intended victim
into his truck, his following the girl, and his statements to
the police officer and to the girl’s mother strongly corroborate his criminal purpose to kidnap, rape, and sodomize the
13-year-old girl.”).
Thus, Walters held that, to be a substantial step,
the defendant’s conduct must (1) advance the criminal purpose charged and (2) provide some verification of the existence of that purpose. Id. at 85. Our second case construing
the attempt statute, Kimbrough, addressed the first prong
of that requirement. In that case, the defendant was convicted of (among other things) attempted aggravated murder for soliciting a hitman, through his cellmate, to kill
several people. Kimbrough, 364 Or at 68. In fact, there was
no hitman, and the defendant’s cellmate was cooperating
with law enforcement.
Id. at 70. On appeal, the defendant
argued that he had not taken a substantial step because,
given the nonexistence of the hitman, the conduct failed
to actually “advance the criminal purpose charged.”
Id. at
73-74. This court disagreed, based on the statute that specifically addresses the concept of impossibility as a defense
to attempt crimes:
“In a prosecution for an attempt, it is no defense that it
was impossible to commit the crime which was the object
of the attempt where the conduct engaged in by the actor
would be a crime if the circumstances were as the actor
believed them to be.”
ORS 161.425. We explained that that statute, like the attempt
statute, was drawn from the Model Penal Code, the commentary to which reasoned that “ ‘the liability of the actor turns
on his purpose, considered in the light of his beliefs, and not
on what is actually possible under existing circumstances.’ ”
Kimbrough, 364 Or at 75 (quoting Model Penal Code, § 5.01
(Tentative Draft No 10, 1960)). Despite some differences
372 State v. Kyger
between the Model Penal Code and the statutes that the
1971 legislature enacted, we concluded that the legislature
retained the “basic policy” and that “Oregon attempt law
treats impossibility the same way as [the] Model Penal Code
did.” Id. In light of that, the defendant’s focus on whether the
hitman actually existed was misplaced:
“The question posed by the first prong of the Walters
formulation is not, therefore, whether the act actually
advanced the defendant’s criminal purpose. What matters
is whether the act would have advanced the defendant’s
criminal purpose were the facts as the defendant believed
them to be. Here, then, what matters to the state’s theory
is not whether the hitman did exist, but whether defendant
so believed.”
Id. at 75 (emphases in original).
C. The Parties’ Arguments
The state takes the position that defendant is guilty
of two counts of attempted aggravated murder under a
straightforward application of the statutory definitions. In
the state’s view, that conclusion follows from the fact that
defendant “intentionally engage[d] in conduct,” the cutting
of the victims’ necks, which constituted a “substantial step
toward the commission of the crime” of causing two deaths
in the same criminal episode—i.e., aggravated murder. The
Court of Appeals agreed. Kyger, 305 Or App at 557. That
court first noted that it had already decided, in Quintero,
that the crime of attempted aggravated murder may consist
of “ ‘intentionally engag[ing] in conduct constituting a substantial step toward the murder of more than one person.’ ”
Id. at 553 (quoting Quintero,
110 Or App at 257). The court
went on to explain that Quintero was consistent with the
statutory text:
“When [the] 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[.]”
Kyger,
305 Or App at 554.
Cite as
369 Or 363 (2022) 373
In challenging that conclusion, defendant reprises
his argument that the crime of attempted aggravated murder requires the aggravating circumstance to “exist,” and
that an indictment fails to allege the crime if it charges only
that a defendant intended to bring the aggravating circumstance about.
At the outset, we note the way in which defendant
has framed the issue for our review. Defendant agrees that
the crime of attempt has two elements: (1) intentional conduct that (2) constitutes a substantial step toward the commission of the crime. Defendant then states: “Only the first
requirement is at issue in this case. The question is how
the intentional conduct in the attempt statute relates to the
various elements of the substantive crime.”
Although defendant asserts that only the “intentional conduct” element is at issue, defendant does not dispute that all of the charged conduct was intentional. That is,
defendant has not argued that his separate acts of attacking both victims with a razor blade were committed without
an intent to kill. Rather, we understand defendant’s argument to be that the state’s allegation that he intentionally
tried to kill both victims is insufficient, because the crime
of attempted aggravated murder under ORS 163.095(1)(d)
requires an element that was not alleged here (i.e., that multiple victims died).
At its core, defendant’s argument depends on the
proposition that a “circumstance” element, which must exist
(like any other element) for a substantive crime to be completed, must also exist for an attempt crime to be completed.
Defendant derives that proposition from several sources.
First, he points out that the mental-state definitions in
ORS 161.085(7) associate “intent” with conduct or result
elements; in contrast, circumstance elements are associated
with the mental states of knowledge, recklessness, and criminal negligence in ORS 161.085(8), (9), and (10). Defendant
further points out that those provisions refer to a circumstance as either existing or not. Thus, defendant reasons, a
person can act with knowledge that a circumstance exists or
be reckless or criminally negligent as to whether it exists,
but the concept of “intending” a circumstance is unknown
374 State v. Kyger
to Oregon criminal law. Accordingly, defendant asserts, the
“intentional conduct of the attempt statute does not apply to
the circumstance elements of a crime.”
Defendant further supports his argument with
citations to legislative history. He relies, as this court
has done, on the commentary that accompanied the 1971
Criminal Code revision. See Kimbrough, 364 Or at 77. From
the commentary, defendant draws two observations. First,
the commentary to the attempt statute specifies that the
intent requirement is satisfied where “the defendant intends
to engage in the conduct which will constitute the crime,”
and that the defendant “need not necessarily contemplate
all of the surrounding circumstances included in the definition of the crime.” Commentary to Criminal Law Revision
Commission Proposed Oregon Criminal Code, Final Draft
and Report § 54, 51 (July 1970). Thus, in defendant’s words,
“attempt crimes address the conduct elements of a substantive crime—that is what the defendant must intend.”
Second, the commentary explains that the defendant must “intend to perform acts and attain a result which,
if accomplished, would constitute the crime.” See id. (internal quotation marks omitted; emphasis added). Defendant
takes the italicized phrase to mean that a person is guilty
of attempt only if, had his intended course of conduct been
completed, the crime would have been accomplished, which
“can only occur if the circumstance element of the crime
exists.”
Finally, defendant relies on Turnidge, which, as
noted above, held that the death of multiple victims in ORS
163.095(1)(d) is a “circumstance” that requires no separate
proof of mental state. 359 Or at 504. In defendant’s view,
that supports the understanding that a person’s intent as
to that circumstance is “irrelevant” for purposes of attempt
liability, from which it follows that, just as the circumstance
must exist for a person to be guilty of the completed crime
of aggravated murder, it must also exist for the crime of
attempt.
The two building blocks of defendant’s argument—
first, that the mental state of “intent” is not ordinarily
Cite as 369 Or 363 (2022) 375
associated with “circumstance” elements of offenses; second, that a circumstance element must “exist” in order for
a substantive crime to be completed—are correct statements of the law as far as they go. They fail, however, to
support defendant’s ultimate claim that the inchoate crime
of attempt cannot occur unless a circumstance element of
the underlying offense actually exists.
Defendant’s contention is contrary to both the text
and the history surrounding the attempt statute, which
show that the focus of attempt liability is entirely on an
actor’s criminal purpose as manifested by his or her conduct, and not on whether any element of the crime has been
completed or whether the crime is impossible or unlikely to
occur.
Textually, the attempt statute is not worded in a
manner that requires the completion or existence of any
element of an offense. It requires only that an actor have
“intentionally” engaged in “conduct” that constitutes a “substantial step” toward the commission of the crime. ORS
161.405. “Conduct” is defined in the Criminal Code as “an
act or omission and its accompanying mental state.” ORS
161.085(4). An “act” is defined as “a bodily movement.” ORS
161.085(1). Thus, an act or series of acts, when accompanied
by the mental state of “intentionally,” is sufficient to create
attempt liability if it amounts to a substantial step toward
completing a criminal offense, which is different from saying that one or more elements of the offense must exist.
Moreover, the attempt statute is silent as to the existence
or nonexistence of “circumstances.” See ORS 161.405. If an
actor takes sufficient intentional steps toward achieving a
defined criminal objective, the text of the attempt statute is
unconcerned with whether circumstances or other elements
necessary to the completion of the crime exist.
That understanding is reinforced by the statute’s context and legislative history. Context includes the
impossibility statute, ORS 161.425, which we construed in
Kimbrough. There, we explained that “[t]he plain text of
ORS 161.425 provides that attempt liability does not rest
on the actual likelihood of the crime occurring.” Kimbrough,
364 Or at 74. Rather, attempt liability rests on charging and
376 State v. Kyger
proving that a defendant “ ‘purposely d[id] … anything
which, under the circumstances as he believes them to be, is
a substantial step in a course of conduct planned to culminate in his commission of the crime.’ ”
Id. at 74-75 (quoting
Model Penal Code, § 5.01(1)(c) (Tentative Draft No 10, 1960)
(emphasis in Kimbrough)). That understanding of how the
attempt statute and the impossibility statute work together
is difficult to square with the idea that a circumstance must
actually exist.
Defendant argues that the term “circumstances”
in ORS 161.425, and our discussion of it in Kimbrough, is
meant to refer to “surrounding facts” or “circumstances in
the world” rather than to circumstance “elements” of crimes.
That is, as we understand defendant’s argument, he contends that a person can be liable for attempt if he or she
has a misunderstanding about “facts” (such as whether the
intended victim of a shooting was in a certain location, or
whether a wallet that was the target of theft was in a particular pocket). But, in defendant’s view, a person cannot be liable for attempt if a circumstance element—i.e., one included
in the statutory definition of the crime that is necessary for
the completion of that crime—does not exist.
Defendant further illustrates that distinction through
the use of hypotheticals, such as the crime of unlawful delivery of a controlled substance within 1,000 feet of a school,
ORS 475.904. He argues that, because the delivery of drugs
is the prohibited conduct and the proximity to a school is an
attendant circumstance, a person can be guilty of attempt
if (1) he attempts to deliver drugs, and (2) a school actually
exists within 1,000 feet of where the attempt occurred, but
the person cannot be guilty of attempt if he (1) actually delivers drugs, and (2) mistakenly believes he is doing so within
1,000 feet of a school. That is because, as defendant puts it,
“the circumstance element [of the offense] does not exist.”
For several reasons, we reject defendant’s proposed
distinction between mistakes about “facts” and missing “circumstances.” First, analytically, no such distinction is easily
drawn. The status of a victim as a police officer, for example,
is both a “surrounding fact” and an attendant circumstance
that elevates murder to aggravated murder under ORS
Cite as 369 Or 363 (2022) 377
163.095(2)(a)(A). A circumstance element is simply a fact
that the legislature has imbued with legal significance.
Second, defendant’s argument is inconsistent with
the discussion of “impossibility” that surrounded the enactment of the attempt statute in 1971. Defendant begins with
the correct proposition that the absence of a circumstance
element makes it legally impossible to complete a substantive crime. From there, defendant reasons that it should
not be possible to “attempt” the crime, because, without the
existence of the necessary circumstance, the criminal objective could not have been achieved even if the actor had completed his intended course of conduct.
Attempt liability, however, is not concerned with
whether the criminal objective could have been achieved. It
is concerned with the demonstrated dangerousness of the
actor.
We return, as we have before, to the commentary that accompanied the 1971 Criminal Code revision.
Kimbrough, 364 Or at 77 (“[W]e look principally to the
draft commentary provided by the Criminal Law Revision
Commission to illuminate [the legislature’s intended] meaning.”). In the commentary to the “impossibility” section (now
codified at ORS 161.425), the drafters stated unequivocally
that neither factual nor legal impossibility is a defense to
attempt liability:
“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
emphasis in the older view was that the nature of the act
should be determinative of the guilt of the actor. Pursuant
to this view it has been held, for instance, that if an actor
tried to receive property he believed stolen when the property was in fact not stolen, his act was not legally criminal
because it was impossible to commit the crime of attempt
to conceal that which was not stolen. His act was viewed
objectively as no threat to society because it was a ‘legal
impossibility.’ Yet viewed from the subjective standpoint of
the actor, the intent and purpose were criminal and but for
the actor’s mistaken understanding of the circumstances
the crime would have been committed.
378 State v. Kyger
“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.’
“This section would make the actor liable in all ‘impossibility’ situations. This includes in addition to the ‘legal’
impossibility cases the so-called ‘factual’ impossibility situations. The case where an actor attempts to steal from the
pocket of another when the pocket is empty or where the
actor shoots into an empty bed believing it occupied by the
intended victim are common examples of ‘factual’ impossibility. Also encompassed within this section is a prohibition
on a defense of ‘inherent’ impossibility. Thus it would be no
defense if black magic is the means chosen for the attempt,
e.g., the actor makes a doll and repeatedly stabs it with pins
believing that the intended victim thereby will be killed.
Although the means chosen is clearly ineffective the personality of the actor is potentially dangerous. In such cases
it may very well occur to the black magic practitioner, after
repeated failures of legerdemain, that other more effective
means to kill are available.
“…
“Though the Oregon law that factual impossibility is no
defense seems settled …, no Oregon decision was found
dealing with legal impossibility. The two are not really
different as a policy matter. The draft section, like all the
other modern codes, treats legal impossibility the same as
factual impossibility and allows neither as a defense.”
Commentary § 55 at 52-53 (internal citations omitted).
Thus, it is clear that the impossibility of committing
a substantive crime, whether because of a mistaken belief, a
failed circumstance, or an “ineffective” means, has little or no
bearing on whether a person who tries to commit that crime
is someone whom the legislature intended to punish under
the attempt statute.5 If that person intentionally engages in
5
The drafters noted one caveat to the rule that impossibility is not a defense.
To be guilty of attempt, the actor must have an objective that is, in fact, criminal.
Thus, a person who believes he is breaking the law by engaging in conduct that is
entirely legal has committed no crime, not even attempt. Commentary § 55 at 53 (“If,
Cite as 369 Or 363 (2022) 379
conduct manifesting a criminal objective, then the legislature intended for that person to be guilty of attempt, and it
is no defense that the criminal objective was impossible or
unlikely to be realized.
Defendant’s distinction between a mistake about
facts and a missing circumstance is, therefore, untenable.
No such distinction is supported by the commentary, which
links attempt liability to whether the actor manifested a
dangerous intent, not to the particular reason why the actor
failed in the criminal objective. Commentary § 55 at 52.
Indeed, the commentary strongly indicates that the reason
is irrelevant. Id. at 53.
Defendant’s argument relies on additional propositions that are not supportable. It presumes, as discussed
earlier, that circumstance elements cannot be intended or
attempted. Practically speaking, that is not true. Defendant
is correct that the definitions in ORS 161.085 contemplate
that a circumstance will exist or not, and that they do not
contemplate a person acting “intentionally” as to a circumstance. See ORS 161.085(7) (defining “intentionally” as
applying to conduct or result elements, not to circumstance
elements). Those definitions, however, are generally written
with a view toward substantive crimes, and they make clear
that a person need not have intended that a circumstance
exist in order to complete a crime. The other authorities on
which defendant relies similarly show that a person need
not intend or contemplate an attendant circumstance to be
criminally liable. That does not mean that a person cannot
intend to bring about a circumstance. Common sense tells
us otherwise. A person who intends to sell drugs to children
can certainly locate what he believes to be a school building
and then, for that reason, conduct his operations across the
street. In that case, it would be difficult to deny that he has
intended for the circumstance element of the offense to exist,
even if the building turns out not to be a school. As another
example, a review of the various attendant circumstances in
the aggravated murder statute shows that, although some
according to his beliefs as to facts and legal relationships, the result desired or
intended is not a crime, the actor will not be guilty of an attempt even though he
firmly believes that his goal is criminal.”).
380 State v. Kyger
of them relate to matters like the status or age of the victim, others concern matters that plainly would be within
a defendant’s control, such as whether the murder was
committed in exchange for money, ORS 163.095(1)(a), (b);
whether it was connected to the “intentional maiming or
torture of the victim,” ORS 163.095(1)(e); and whether it was
committed “by means of an explosive,” ORS 163.095(2)(c). As
those examples illustrate, the designation of an element as
a circumstance does not mean that it is beyond a person’s
ability to influence, create, or intend.6
Finally, although a person need not intend a circumstance to be criminally liable, it hardly follows that the
legislature did not want attempt liability to attach to someone who did intend that circumstance. The attempt statute
is concerned with what a person tried to do. If the legislature defines a crime and then identifies circumstances that
make the crime particularly heinous, a person who takes
deliberate steps to bring those circumstances about has
demonstrated the heightened dangerousness that the legislature sought to deter and punish by creating the aggravated version of the crime. The failure to produce those circumstances means that the person cannot be guilty of the
completed crime, but it would frustrate the purpose of the
attempt statute to ignore the effort and conclude that the
person is not guilty even of the inchoate crime. Defendant
has not explained how the legislature’s intent would be
served by such a result.
In this case, defendant undisputedly had the objective of killing multiple victims in the same criminal episode and engaged in intentional conduct toward that end.
Accordingly, he attempted to commit the crime that the
legislature has defined in ORS 163.095(1)(d). The crime of
attempt was not rendered impossible, in retrospect, because
of the happenstance that neither victim died.
6
Turnidge, on which defendant relies, is not to the contrary. What Turnidge
established is that the state may prove the aggravating circumstance of
“more than one murder victim” without showing that the defendant intended
to bring it about. 359 Or at 504. That aspect of our discussion in Turnidge
was unrelated to attempt crimes, and the notion that defendant draws from
it—that it is not possible to “intend” or “attempt” a circumstance—does not
follow.
Cite as
369 Or 363 (2022) 381
In short, the state’s theory of attempted aggravated
murder is a viable one, and it was properly charged. We
repeat the wording of the charges here:
“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.”
Each count states the required elements of attempted aggravated murder under ORS 161.405 and ORS 163.095(1)(d):
(1) intentional conduct (2) that constituted a substantial
step toward causing the deaths of more than one victim in
the same criminal episode. The state did not need to use any
specific phrases or terms to adequately convey the charge in
the indictment. ORS 132.540(4)7 (“Words used in a statute
to define a crime need not be strictly pursued in the indictment, but other words conveying the same meaning may be
used.”). The occurrence of multiple deaths is required for the
completed crime of aggravated murder, but it is not required
for the inchoate crime of attempted aggravated murder.
Defendant’s argument that the indictment lacked a necessary element is incorrect.
The decision of the Court of Appeals and the judgment of the circuit court are affirmed.
7
ORS 132.540 has been amended since defendant committed the crime.
Those amendments did not change the text of subsection (4), nor do they affect
our analysis.
