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Court of Appeals of Oregon • 2017

State v. Kimbrough

285 Or. App. 84 | 395 P.3d 950 | 2017 Ore. App. LEXIS 539

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Takeaway

In short, a detailed murder-for-hire instruction delivered to a person the defendant believes can transmit it to a killer may be a substantial step, even if the supposed killer does not exist and the planned crimes never become realistically possible.

Background

While jailed on a burglary charge, defendant told his cellmate, Crowley, that he wanted several people connected to his case dead or unable to testify. He named his father-in-law, brother-in-law, and the Wasco County District Attorney as people he wanted killed, and he said that he wanted two witnesses in his burglary case threatened so they would not appear at trial.

Crowley falsely claimed that he knew people capable of committing murder. Defendant then carefully prepared a letter for a purported hit man. The letter identified the intended victims, described desired methods of killing, supplied personal information and locations, identified valuables that could be taken as payment, and directed that the two burglary witnesses be threatened. Defendant gave the sealed letter to Crowley, believing Crowley would get it outside the jail to a hit man. Defendant later repeatedly asked why the killings had not yet occurred and exchanged notes with Crowley about arranging a visit with the supposed killer.

The state charged defendant with attempted aggravated murder, attempted murder, solicitation-related offenses, and witness tampering. After the state rested in a bench trial, defendant sought judgments of acquittal on four attempted-aggravated-murder counts, three attempted-murder counts, and two witness-tampering counts. He argued that his acts were only preparation, not a substantial step under ORS 161.405. The trial court denied the motion, found him guilty on those counts, and merged the solicitation-related verdicts into nine convictions. Defendant appealed the denial of his motion for judgment of acquittal.

Issues

Issue #1

Whether defendant's preparation and delivery of a detailed murder-for-hire letter to Crowley constituted a substantial step toward the attempted aggravated murders and attempted murders.

Holding

Yes. A rational factfinder could find that defendant's conduct advanced and strongly corroborated his purpose to have the three identified victims murdered.

Reasoning

On review of a denied motion for judgment of acquittal, the court viewed the evidence and reasonable inferences in the light most favorable to the state. Under ORS 161.405(1), attempt requires intentional conduct constituting a substantial step toward the target crime. Oregon's substantial-step test, drawn from the Model Penal Code, requires conduct that both advances the charged criminal purpose and verifies that the purpose exists; in other words, the conduct must strongly corroborate the actor's criminal intent.

Defendant did more than think about murder or make an unacted-on request. After asking Crowley whether he could arrange a killing, defendant drafted a detailed letter for a hit man, identified the three intended victims, set out how he wanted them killed, supplied information useful to carrying out the crimes, described compensation, and delivered the letter to Crowley believing that Crowley would transmit it to someone who would perform the murders. His later questions about why the killings were not yet "done" further supported the inference that he expected his instructions to be carried out.

The court rejected defendant's characterization of the facts as merely a desire to meet someone later and make a plan. Viewed favorably to the state, defendant believed that delivery of the letter was itself sufficient to set the murders in motion. He had done all that he could do under the circumstances to cause the crimes through the intermediary he thought he had found. That conduct both advanced his plan and provided powerful corroboration of his purpose.

The fact that Crowley did not actually know a hit man did not defeat attempt liability. Under ORS 161.425, factual impossibility is not a defense when the defendant's conduct would constitute a crime if circumstances were as he believed them to be. The court regarded the case as materially similar to State v. Johnson, where solicitation accompanied by details about the intended killings was sufficient to be a substantial step.

Issue #2

Whether defendant's directions to threaten two burglary witnesses, along with their identifying information and a proposed payment method, constituted a substantial step toward witness tampering.

Holding

Yes. A rational factfinder could find that defendant took a substantial step toward inducing the witnesses to withhold or alter testimony.

Reasoning

The witness-tampering charges required proof that defendant knowingly induced, or attempted to induce, a witness or prospective witness to offer false testimony or unlawfully withhold testimony. Because the charged conduct was itself an attempt to induce that result, the court applied the same substantial-step inquiry: whether defendant's acts advanced and corroborated that criminal purpose.

Defendant first told Crowley that he wanted the witnesses in his burglary case not to show up for trial. His letter then expressly instructed the purported hit man to threaten those two witnesses and supplied each witness's name, address, telephone number, and date of birth. The letter also described a way to compensate the person who carried out the threats by taking property from defendant's father-in-law's home.

Those instructions were not abstract talk about obstructing the case. By creating and transmitting operational directions identifying the people to be threatened and the contemplated payment, defendant took conduct from which a factfinder could infer both a concrete effort to cause witness intimidation and a firmly held purpose that the witnesses withhold or alter their testimony. The trial court therefore properly denied the motion for judgment of acquittal on both witness-tampering counts.

Concurrences

Judge Sercombe

Reasoning

Judge Sercombe agreed that existing Oregon precedent required affirmance. In his view, State v. Johnson treats solicitation as capable of being a substantial step, and State v. Taylor supports treating conduct as beyond preparation when the defendant has done all that he was expected to do. Under those cases, defendant's instructions to a supposed hit man, statement of compensation, and delivery of the instructions to a courier could support the attempt convictions.

Judge Sercombe nevertheless questioned whether Oregon case law has moved the substantial-step boundary too far into mere preparation. In his view, conduct advances a criminal purpose only if it makes the intended crime more likely to occur. Although defendant's delivery of the letter strongly corroborated his intent, delivery to Crowley did not actually make the killings more likely because Crowley had no real connection to a killer.

He therefore urged reexamination of the proposition that a defendant has taken a substantial step simply because the defendant has done all that he personally was expected to do. He also questioned how an attempted solicitation can be as substantial as an actual solicitation, and called for clearer guidance on what it means for conduct to advance the charged criminal purpose.