506 P.3d 376
Or.2022Background
- In April 2016 defendant cut the necks of two victims with a razor during a single criminal episode; both victims survived. Defendant told police he wanted to kill them.
- State charged two counts of attempted aggravated murder under ORS 163.095(1)(d) ("more than one murder victim in the same criminal episode") and the attempt statute ORS 161.405.
- Defendant moved in arrest of judgment, arguing the "more than one murder victim" circumstance must actually exist and therefore cannot be the object of an attempt; the indictment therefore failed to state attempted aggravated murder.
- Trial court denied the motion; Court of Appeals affirmed; Oregon Supreme Court granted review.
- The Supreme Court held that attempted aggravated murder requires intentional conduct constituting a substantial step toward causing the deaths of more than one victim in the same criminal episode; the actual occurrence of multiple deaths is required for completed aggravated murder but not for the inchoate crime of attempt.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ORS 163.095(1)(d)'s circumstance "more than one murder victim" must actually exist for attempted aggravated murder | Attempt is satisfied: defendant intentionally engaged in conduct that was a substantial step toward causing multiple deaths | A circumstance element must "exist"; one cannot attempt a circumstance element, so indictment fails to charge attempted aggravated murder | Attempt liability focuses on the actor's intentional conduct and purpose; attendant circumstances need not actually exist for attempt; conviction affirmed |
Key Cases Cited
- State v. Walters, 311 Or 80 (1991) (endorsing Model Penal Code "substantial step" test for attempt)
- State v. Kimbrough, 364 Or 66 (2018) (impossibility is no defense; attempt liability judged by defendant's beliefs and purpose)
- State v. Turnidge, 359 Or 364 (2016) ("more than one murder victim" is an attendant circumstance, not a conduct element requiring proof of specific intent)
- State v. Quintero, 110 Or App 247 (1991) (Court of Appeals held attempted aggravated murder may be based on substantial steps toward murdering more than one person)