State v. Kimbrough, 431 P.3d 76

Defendant, jailed on burglary charges, solicited a hitman via a letter and map to kill three people and threaten trial witnesses; he gave materials to a cellmate (who was cooperating with jail staff).
The hitman did not exist; the cellmate reported the solicitation to authorities before any killings occurred.
Defendant was tried and convicted of multiple counts including attempted aggravated murder, attempted murder, attempted solicitation counts, and witness tampering; he appealed challenging only the attempted murder/attempted aggravated murder and tampering convictions.
Trial court denied defendant's motion for judgment of acquittal on the attempt-related counts; the Court of Appeals affirmed, relying on State v. Taylor.
The Oregon Supreme Court reviewed statutory text, the Criminal Law Revision Commission commentary, the Model Penal Code, and treatises to determine whether solicitation of another (a nonexistent hitman) can constitute an attempt to commit the substantive crimes.
The court reversed the attempted murder/aggravated murder and tampering convictions, holding that Oregon attempt law requires that the defendant intend personally to engage in the conduct constituting the crime (or induce an innocent agent), and that mere solicitation of a willing, guilty agent ordinarily is not an attempt.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Kimbrough)	Held
Whether impossibility (no actual hitman) bars attempt liability	Attempt is proven if defendant believed a hitman existed; impossibility is no defense under ORS 161.425	Because no hitman existed, defendant did not make commission of the crimes more likely, so no substantial step	Rejected: impossibility is not a defense; the actor’s belief about circumstances matters for substantial-step analysis
Whether a mere solicitation can constitute an attempt	The same substantial-step test applies; solicitation may suffice depending on circumstances	A bare solicitation ordinarily cannot be an attempt; solicitation and attempt were meant to be distinct	Agreed with defendant in general: solicitation rarely overlaps with attempt; solicitation is an attempt only when the defendant intends to personally engage in the criminal conduct (or induces an innocent agent)
Whether defendant’s conduct here constituted a substantial step toward the substantive crimes	Defendant’s letters, map, and repeated efforts were all that he could do and thus a substantial step	Defendant intended the crimes to be committed by someone else and did not intend to personally engage in elements of the crimes	Held for defendant: no evidence he intended to personally commit elements or take a substantial step toward personally committing them; convictions for attempt and tampering reversed

State v. Walters, 311 Or. 80 (interpreting "substantial step" requirement for attempt)
State v. Taylor, 47 Or. 455 (historical case treating solicitation-like facts as attempt)
State v. Gaines, 346 Or. 160 (statutory interpretation principles; use of legislative history)
State v. Blake, 348 Or. 95 (distinguishing accomplice liability from independent offenses)
State v. Phillips, 354 Or. 598 (discussing direct vs. vicarious liability and related doctrinal distinctions)