State v. Kimbrough
2017 WL 1489031, 285 Or. App. 84, 395 P.3d 950 (2017)
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Rule of Law:
An attempt to commit a crime occurs when a person intentionally engages in conduct that constitutes a substantial step toward the commission of that crime. Soliciting a third party and providing a detailed plan for the crime can qualify as a substantial step, even if completing the crime is factually impossible because the solicited party does not actually exist.
Facts:
- While incarcerated, defendant told his cellmate, Crowley, that he wanted his father-in-law, brother-in-law, and the district attorney killed.
- Defendant also told Crowley he wanted two witnesses in his pending burglary case to be threatened so they would not show up to trial.
- Defendant asked Crowley if he knew anyone who could kill someone, and Crowley falsely claimed that he did.
- Defendant wrote a detailed letter addressed to a "stranger," identifying the three murder targets, suggesting methods of death (heart attack, overdose), and specifying payment of $80,000 from the proceeds of a robbery.
- The letter also named the two witnesses to be threatened, providing their personal information and addresses, and included a hand-drawn map to the father-in-law's house.
- Defendant placed the letter in an envelope and gave it to Crowley, believing Crowley would deliver it to a hitman.
- After giving Crowley the letter, defendant repeatedly asked why the murders had not been carried out yet.
- In subsequent written notes, defendant reaffirmed his desire for the district attorney to be killed and discussed adding the purported hitman to his visitor list.
Procedural Posture:
- Defendant was charged in a trial court with multiple crimes, including attempted aggravated murder, attempted murder, and tampering with a witness.
- The defendant had a bench trial (a trial by judge, not jury).
- After the state presented its evidence, the defendant moved for a judgment of acquittal, arguing the state failed to prove he took a 'substantial step' toward the crimes.
- The trial court denied the defendant's motion.
- The trial court found the defendant guilty of the attempted murder and witness tampering charges.
- Defendant, as appellant, appealed the judgment of conviction to the intermediate appellate court.
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Issue:
Does an inmate take a substantial step toward committing murder and witness tampering by writing a detailed letter soliciting a hitman and giving it to a cellmate for delivery, even if the hitman does not exist?
Opinions:
Majority - Tookey, J.
Yes. The defendant's conduct constituted a substantial step toward the commission of murder and witness tampering. Under Oregon law, a substantial step is conduct that both (1) advances the criminal purpose charged and (2) provides verification of the existence of that purpose. The defendant advanced his criminal purpose by moving beyond mere preparation; he actively sought a hitman, created a detailed plan of murder and intimidation, and delivered that plan to a person he believed would carry it out. He had done all he could under the circumstances to bring about the crimes. The specificity of the letter and his repeated inquiries about its progress provided strong verification of his criminal intent. Factual impossibility, such as the non-existence of the hitman, is not a defense to an attempt charge under ORS 161.425 because the defendant's dangerousness is manifested when he goes as far as he can to implement his criminal purpose based on the circumstances as he believes them to be.
Concurring - Sercombe, P. J.
Yes. While the defendant's actions constitute a substantial step under existing precedent, this case pushes the boundary between a substantial step and mere preparation too far. An attempted solicitation, where the crime becomes no more likely to occur, seems less substantial than an actual solicitation. The delivery of the letter to a cellmate, while corroborating the defendant's intent, did not actually advance the criminal purpose by making the crimes more likely. The legal test that a substantial step is taken when a defendant has 'done all that he was expected to do' should be re-examined to clarify the meaning of 'advancing the criminal purpose.'
Analysis:
This decision reaffirms Oregon's expansive interpretation of the 'substantial step' requirement for attempt liability, emphasizing the defendant's subjective belief and manifested criminal purpose over the objective likelihood of the crime's success. It solidifies the principle that factual impossibility is not a defense, meaning a defendant can be convicted for trying to commit a crime that could never happen. The concurrence, however, highlights a critical tension in attempt law, questioning whether conduct that does not actually increase the danger to the public should qualify as a substantial step, suggesting a potential area for future legal challenge or legislative clarification.
