382
Argued and submitted September 23, 2021, resubmitted January 25; decision of
the Court of Appeals and judgment of circuit court affirmed March 22, 2022
STATE OF OREGON,
Respondent on Review,
v.
KEVIN CLIFFORD FORD, JR.,
Petitioner on Review.
(CC 17CR51634) (CA A170826) (SC S068434)
506 P3d 400
Defendant was charged with two counts of attempted aggravated murder
for shooting at a vehicle with multiple occupants, none of whom died. Defendant
demurred to the indictment, arguing that it did not properly charge the aggravating circumstance that there was “more than one murder victim in the same
criminal episode” under ORS 163.095(1)(d) (2015). The trial court denied the
demurrer, and the jury acquitted defendant on the attempted aggravated murder counts while convicting defendant of other offenses. On appeal, defendant
argued that the denial of the demurrer was in error and caused him prejudice
at trial. The Court of Appeals summarily affirmed. Held: For the reasons stated
in State v. Kyger, 369 Or 363,
506 P3d 376 (2022), also decided today, defendant’s
argument is without merit.
The decision of the Court of Appeals and the judgment of the circuit court
are affirmed.
On review from the Court of Appeals.*
Jedediah Peterson, O’Connor Weber LLC, Portland,
argued the cause and filed the brief for petitioner on review.
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.
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.
______________
* On appeal from Multnomah County Circuit Court, Leslie M. Roberts,
Judge.
… Nakamoto, J., retired December 31, 2021, and did not participate in the
decision of this case.
Cite as 369 Or 382 (2022) 383
GARRETT, J.
Defendant fired a gun at a vehicle with two occupants, neither of whom died. He was charged with, among
other crimes, two counts of attempted aggravated murder under ORS 163.095(1)(d) (2015).1 He unsuccessfully
demurred to those counts of the indictment, arguing that the
state had not charged a viable theory of attempted aggravated murder because the death of “more than one murder
victim” in the same criminal episode is a circumstance element of the crime defined in ORS 163.095(1)(d), and because
a circumstance element, unlike a conduct element, cannot
be “attempted.” At trial, defendant was acquitted of both
counts of attempted aggravated murder but was convicted
of other crimes.
On appeal, despite the acquittal, defendant nonetheless challenged the denial of his demurrer, arguing that
that denial prejudiced him because it allowed for the admission of evidence relevant to the counts of attempted aggravated murder that may not have been admissible if trial
had been limited to the other counts in the indictment. The
Court of Appeals summarily affirmed based on its decision
in State v. Kyger, 305 Or App 548,
471 P3d 764 (2020). This
court allowed review of both cases.
On review, defendant’s argument that the state
failed to allege a viable theory of attempted aggravated
murder presents the same issue decided this day in State v.
Kyger, 369 Or 363,
506 P3d 376 (2022). For the reasons stated
in Kyger, defendant’s argument is without merit. Because
the circuit court did not err in denying the demurrer, it is
unnecessary to address defendant’s remaining arguments
concerning prejudice.
The decision of the Court of Appeals and the judgment of the circuit court are affirmed.
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. Because the underlying events in this case occurred in 2017, all citations in this opinion are to the 2015 version of the statutes in ORS chapter 163.
