State v. Kyger
471 P.3d 764
Or. Ct. App.2020Background:
- Defendant attacked two men (and assaulted a third) with a razor blade in a car; charged with two counts of attempted aggravated murder (one count as to each victim), among other offenses.
- Indictments alleged defendant intentionally attempted to cause each victim’s death "having attempted to cause the death of" an additional person in the same criminal episode (i.e., the aggravated-murder attendant circumstance of more than one victim).
- Case was tried to the court; defendant convicted on the attempted aggravated murder counts and others.
- Defendant filed a motion in arrest of judgment arguing that the "more than one victim" attendant circumstance is a circumstance/status that cannot be the object of an attempt, so at most convictions should be for attempted murder.
- Trial court denied the motion relying on State v. Quintero; defendant appealed, arguing Quintero should be overruled in light of State v. Turnidge and State v. Snyder.
- The Court of Appeals affirmed: Quintero controls and, under the attempt statute, intentionally taking substantial steps to kill multiple persons in the same criminal episode supports attempted aggravated murder even if no homicide is completed.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether attempting to kill multiple persons in one episode can constitute attempted aggravated murder (i.e., can the attendant circumstance "more than one murder victim" be attempted?) | The State: attempt requires an intentional substantial step toward the completed offense; Quintero holds attempting to kill multiple people supports attempted aggravated murder. | Kyger: "More than one victim" is an attendant circumstance/status that cannot be attempted; without any completed murder, only attempted murder applies. | Affirmed: following Quintero, an intentional substantial step toward killing multiple persons in the same episode can support attempted aggravated murder; Turnidge and Snyder do not require overruling Quintero. |
Key Cases Cited
- State v. Quintero, 110 Or App 247 (en banc decision holding that intentionally taking substantial steps to kill more than one person supports attempted aggravated murder)
- State v. Turnidge, 359 Or 364 (Supreme Court decision addressing completed aggravated murder and attendant circumstances; did not address attempt)
- State v. Snyder, 288 Or App 58 (held attempt in DUII context inapplicable where intoxication is a status; distinguished from aggravated-murder attendant circumstance)
- State v. Walters, 311 Or 80 (explains attempt requires conscious objective plus substantial step)
- State v. Kimbrough, 364 Or 66 (clarifies substantial-step must advance purpose and verify its existence)
- State v. Goltz, 169 Or App 619 (recognized multiple attempted aggravated-murder counts may stand for unsuccessful attempts on multiple victims)