State v. Kyger

548

Argued and submitted April 25, 2019, affirmed July 22, 2020

STATE OF OREGON,

Plaintiff-Respondent,

v.

SCOTT WILLIAM KYGER,

Defendant-Appellant.

Clackamas County Circuit Court

17CR08793; A165404

471 P3d 764

For attacking two men with a razor blade, the state charged defendant with,

among other things, two counts of attempted aggravated murder. At defendant’s

bench trial, the state’s theory on the attempted aggravated murder counts was

that, in each instance, defendant had taken a substantial step toward killing

the victim under circumstances in which (had defendant succeeded) there would

have been more than one homicide victim. After the court found defendant guilty,

he moved in arrest of judgment on the ground that the state’s theory was not

legally viable. He argued that, in the context of aggravated murder, the number

of victims involved in a criminal episode is a circumstance element that can-

not, as a matter of law, be attempted. The court denied the motion. Defendant

appeals, assigning error to the court’s denial of his motion in arrest of judgment

and renewing his arguments on appeal. Held: The trial court did not err. Under

ORS 161.405, proof of an attempt offense simply requires proof that a person

intentionally engaged in conduct that constituted a substantial step toward the

completed offense, such that proof that a person intentionally engaged in conduct

constituting a substantial step toward the killing of more than one person in the

same criminal episode establishes attempted aggravated murder.

Affirmed.

Michael C. Wetzel, Judge.

Anne Fujita Munsey, Deputy Public Defender, argued

the cause for appellant. Also on the opening brief and a

reply brief was Ernest G. Lannet, Chief Defender, Criminal

Appellate Section, Office of Public Defense Services. Scott

W. Kyger filed the supplemental brief and a reply brief

pro se.

Timothy A. Sylwester, Assistant Attorney General, argued

the cause for respondent. Also on the brief were Ellen F.

Rosenblum, Attorney General, and Benjamin Gutman,

Solicitor General.

Cite as 305 Or App 548 (2020) 549

Before Lagesen, Presiding Judge, and DeVore, Judge, and

James, Judge.

LAGESEN, P. J.

Affirmed.

550 State v. Kyger

LAGESEN, P. J.

This case presents the question whether an attempted

aggravated murder charge based on the theory that the

defendant had the objective of killing two or more persons in

the same criminal episode is legally tenable. Defendant was

a backseat passenger in a car when he punched another pas-

senger and then drew a razor blade and attacked two other

men in the car. The state charged him with two counts of

attempted aggravated murder for the razor-blade attacks, as

well as several other offenses for his conduct during the epi-

sode. Defendant waived his right to a jury trial and the case

was tried to the court. The state’s theory on the attempted

aggravated murder counts was that, in each instance, defen-

dant had taken a substantial step toward killing the victim

under circumstances in which (had defendant succeeded)

there would have been more than one homicide victim.

After the court found defendant guilty, he moved in arrest

of judgment on the ground that the state’s theory was not

legally viable. He argued that, in the context of aggravated

murder, the number of victims involved in a criminal epi-

sode is a circumstance element that cannot, as a matter of

law, be attempted. The court denied the motion. We conclude

that, under State v. Quintero, 110 Or App 247, 823 P2d 981

(1991), modified on other grounds on recons, 114 Or App 142,

834 P2d 496, rev den, 314 Or 392 (1992), the court correctly

denied defendant’s motion in arrest of judgment. Defendant

raises two pro se supplemental assignments of error that we

also reject. We therefore affirm.

The question raised by defendant’s motion in arrest

of judgment is one of law. We therefore review for legal error.

State v. Stout, 281 Or App 263, 266, 382 P3d 591 (2016), aff’d,

362 Or 758, 415 P3d 567 (2018).

The victims on the counts of attempted aggravated

murder, Z and G, along with a third man, B, were “work

colleagues” (as the prosecutor described them below) in a

scheme buying and selling mobile phones. G was the boss. B

and Z worked for G. Their job was to recruit people willing

to take a hit to their credit score in exchange for compen-

sation, typically homeless people, to obtain mobile phones

from mobile phone stores. They would instruct the recruits

on what phones to obtain, and how to obtain them, and

Cite as 305 Or App 548 (2020) 551

front any funds needed for the acquisitions. A recruit who

obtained the right phones would be paid $100. A recruit who

obtained no phones or the wrong phones would be paid noth-

ing. G would then resell the phones at higher prices.

Defendant and his girlfriend were among the

recruits. G, Z, and B picked them up in Clackamas. After

failed attempts to purchase phones at Portland-area stores

(stores that were starting to catch on to the scheme), the

group drove to Salem so that defendant and his girlfriend

could attempt to purchase phones from Salem stores. They

obtained phones at one store, but they were the wrong

phones. Although the store accepted the return of those

phones, it grew suspicious and would not give defendant

any more phones. Although defendant went to several other

stores, none of those stores would sell phones to him.

The group returned to Portland. During the drive,

G told defendant and his girlfriend that they would not be

paid because they did not get any phones. Angered, defen-

dant punched B in the head two or more times, sliced G’s face

and neck so it looked like “hamburger,” and slit Z’s throat.

He then jumped out of the still-moving car and ran from the

scene. Defendant was apprehended about two weeks later.

For his razor-blade attacks on G and Z, the state

charged defendant with two counts of attempted aggravated

murder. As to those counts, the indictment alleged:

“The defendant, on or about April 25, 2016, in Clackamas

County, Oregon, did unlawfully and intentionally attempt

to cause the death of [Z], another human being, defendant

having unlawfully and intentionally attempted to cause

the death of [G], an additional human being, in the course

of the same criminal episode.

“* * * * *

“The defendant, on or about April 25, 2016, in Clackamas

County, Oregon, did unlawfully and intentionally attempt

to cause the death of [G], another human being, defendant

having unlawfully and intentionally attempted to cause

the death of [Z], an additional human being, in the course

of the same criminal episode.”

Defendant waived his right to a jury, and the case

was tried to the court. The court found defendant guilty of

those two charges, and a number of others.

552 State v. Kyger

Defendant then filed a motion in arrest of judgment

on the attempted aggravated murder counts. He argued

that, for purposes of aggravated murder, the presence of

another victim is a circumstance element and that, further,

a person cannot attempt to commit a circumstance. Thus,

defendant asserted, he was guilty only of attempted murder,

and the court should reduce the charges—and convictions—

to attempted murder. The state responded that Quintero

rejected a comparable argument, thereby foreclosing defen-

dant’s argument. The court denied the motion, relying on

Quintero. Defendant appealed.

On appeal, defendant assigns error to the trial

court’s denial of his motion in arrest of judgment. He argues,

much as he did below, that a person cannot attempt a cir-

cumstance element of a crime. Thus, defendant reasons, a

person who takes a substantial step toward killing two or

more people in a single criminal episode, but succeeds at

killing none of them, has committed only attempted murder

with respect to each potential victim. Defendant urges us

to conclude either that Quintero does not control or, alter-

natively, that we should overrule it, in view of the Supreme

Court’s subsequent decision in State v. Turnidge (S059155),

359 Or 364, 374 P3d 853 (2016), cert den, ___ US ___, 137

S Ct 665 (2017), and our subsequent decision in State v.

Snyder, 288 Or App 58, 405 P3d 175 (2017), which, in defen-

dant’s view, undercut Quintero’s conclusion. The state

responds that Quintero is dispositive and that neither

Turnidge nor Snyder demonstrate that it should be over-

ruled. For the reasons that follow, we agree with the state.

Under ORS 163.095(1)(d) (2015), amended by Oregon

Laws 2019, chapter 635, section 1, a person committed the

offense of aggravated murder when the person committed

the offense of murder and “[t]here was more than one mur-

der victim in the same criminal episode as defined in ORS

131.505.”1 Under ORS 161.405, a person commits the incho-

ate crime of “attempt to commit a crime when the person

1

The 2019 legislature made substantial amendments to the homicide stat-

utes, including to ORS 163.095. Or Laws 2019, ch 635, § 1. All references to ORS

163.095 in this opinion are to ORS 163.095 (2015), the version in effect at the time

defendant committed his crimes.

Cite as 305 Or App 548 (2020) 553

intentionally engages in conduct which constitutes a substan-

tial step toward commission of the crime.” ORS 161.405. The

core question in this case is whether a person who takes a

substantial step toward murdering two or more people in the

same criminal episode, but does not end up killing anyone at

all, commits the crime of attempted aggravated murder.

Under our en banc decision in Quintero, the answer

to that question is yes. In that case, two of the defendants

were charged with, and convicted of, attempted aggravated

murder under the theory that they each had attempted to

kill more than one person in the same criminal episode. 110

Or App at 256-57. Although the defendants had attempted

to kill more than one person, they did not succeed in kill-

ing anyone. Id. at 257. Much like defendant here, the defen-

dants argued that the charges should be dismissed, or that

acquittal was required, because, in their view, absent a

murder victim, “it is a physical, legal and logical impossi-

bility to have the crime of Attempted Aggravated Murder.”

Id. (internal quotation marks omitted). Relying on the defi-

nition of the crime of attempt in ORS 161.405, we rejected

that argument, explaining that proof of an attempt offense

simply required proof that a person intentionally engaged in

conduct that constituted a substantial step toward the com-

pleted offense, such that proof that a person intentionally

engaged in conduct constituting a substantial step toward

the killing of more than one person in the same criminal

episode establishes attempted aggravated murder:

“An attempt, by definition, does not require that all ele-

ments of the offense be completed. The state presented evi-

dence to show that defendants had intentionally engaged in

conduct constituting a substantial step toward the murder

of more than one person. That crime is attempted aggra-

vated murder.”

Id. Thus, as the trial court correctly recognized, Quintero

foreclosed it from granting defendant’s motion in arrest of

judgment.

Defendant argues that two cases—the Supreme

Court’s decision in Turnidge and our own decision in

Snyder—undercut Quintero, requiring us to overrule it and

hold, to the contrary, that an attempt to kill more than one

554 State v. Kyger

person in the same criminal episode does not constitute

attempted aggravated murder under ORS 161.405 and ORS

163.095(1)(d) unless there is at least one murder victim. We

disagree that Turnidge and Snyder require us to overrule

Quintero.

First, our decision in Quintero tracks the text

of ORS 161.405, as that text has been interpreted by the

Supreme Court. Under the plain terms of ORS 161.405, “[a]

person is guilty of an attempt to commit a crime when the

person intentionally engages in conduct which constitutes

a substantial step toward commission of the crime.” As

the Supreme Court has explained, this means that a per-

son commits the inchoate crime of attempting to commit a

particular crime when the person (1) intentionally—that is,

with the “conscious objective” of engaging in the particular

crime, (2) engages in conduct that constitutes a substantial

step toward the particular crime. State v. Walters, 311 Or

80, 84-85, 804 P2d 1164, cert den, 501 US 1209 (1991). To

qualify as “a substantial step toward commission of the

crime, the ‘defendant’s conduct must (1) advance the crimi-

nal purpose charged and (2) provide some verification of the

existence of that purpose.’ ” State v. Kimbrough, 364 Or 66,

73, 431 P3d 76 (2018) (quoting Walters, 311 Or at 85). When

that definition of attempt is considered in connection with

the particular crime of aggravated murder as defined by

ORS 163.095(1)(d), those provisions easily capture a person

who, with the conscious objective of killing multiple persons

in the same criminal episode, takes steps in furtherance

of that objective, even if the person ultimately succeeds in

killing no one, which is what we ultimately concluded in

Quintero.

Second, our decision in Quintero is consistent with

the legislature’s purpose in criminalizing the inchoate crime

of attempt. See generally Or Laws 1971, ch 743, §§ 54-56;

Commentary to Criminal Law Revision Commission

Proposed Oregon Criminal Code, Final Draft and Report,

§§ 54-56, 51-55 (July 1970). Those provisions were intended

to get at the danger presented by people who have con-

scious criminal objectives and act in furtherance of those

objectives, even when those criminal objectives are not

achieved:

Cite as 305 Or App 548 (2020) 555

“The law of attempt is now recognized as being more

properly directed at the dangerousness of the actor—the

threat of the actor’s personality to society at large.

“* * * * *

“The Model Penal Code comment on situations of this

kind is well expressed as follows:

“ ‘In all of these cases (1) criminal purpose has been

clearly demonstrated, (2) the actor has gone as far as he

could in implementing that purpose, and (3) as a result, the

actor’s “dangerousness” is plainly manifested.’ ”

Commentary at § 55 at 52-53. Holding a person responsi-

ble for attempted aggravated murder when the person has

the criminal purpose of killing more than one person in the

same criminal episode, and takes substantial steps toward

that criminal objective, is consistent with that legislative

intent to target the dangerousness of an actor who has the

purpose of killing more than one person—an intent that

would be frustrated were we to conclude that a person with

the conscious objective of killing more than one person in

the same criminal episode could be liable only for attempted

murder if the person does not, in the end, kill anyone.

Third, neither Turnidge nor Snyder addressed the

issue presented here and in Quintero: whether intention-

ally engaging in conduct that constitutes a substantial step

toward killing two or more people in the same criminal epi-

sode amounts to the crime of attempted aggravated mur-

der where, as here, that intentional conduct does not ulti-

mately cause the death of any person. Turnidge addressed

the completed offense of aggravated murder under ORS

163.095(1)(d) and, in particular, whether proof of the com-

pleted offense required proof of the attendant circumstance

that the defendant intended to cause the death of more than

one victim in the same criminal episode. Turnidge, 359 Or

at 503-05. After reviewing the text, context, and legislative

history of ORS 163.095, the court concluded that proof of

the completed offense did not require proof that a defendant

intended to kill more than one victim in the same criminal

episode. Id. The court did not address the inchoate crime of

attempt at all. Id. For that reason, Turnidge does not supply

insight into whether a person who engages in conduct with

556 State v. Kyger

the conscious purpose of killing more than one person in the

same criminal episode, but succeeds in killing no one, com-

mits the crime of attempted aggravated murder.

Snyder, on the other hand, did address the incho-

ate offense of attempt, but with respect to driving under

the influence of intoxicants (DUII) and not with respect to

aggravated murder. 288 Or App at 60. In Snyder, the defen-

dant was charged with DUII. Id. He requested that the jury

be instructed on attempt, under the theory that the evi-

dence would allow for the jury to find that he “was at most

attempting to be sufficiently intoxicated” to commit DUII,

but was not yet intoxicated enough to have committed DUII.

Id. at 61. We rejected that argument, reasoning that, under

the case law, “[a] DUII defendant’s level of intoxication * * *

is a question of status that exists regardless of conduct or

purpose.” Id. at 62. Consequently, “a nonintoxicated driver

who has recently consumed alcohol is not attempting, in any

legal sense of the word, to commit DUII simply because he

might become intoxicated while still driving.” Id. (emphasis

in original). That is, “simply driving after having consumed

alcohol” is not behavior that is “proscribed by law,” regard-

less of whether the person may have intended to consume

enough alcohol to result in legal intoxication. Id.

We recognize that some aspects of our analysis

in Snyder support defendant’s view as to how the attempt

statute should work with the underlying offense of aggra-

vated murder based on the killing of more than one victim.

In defendant’s view, the presence of an additional victim

for purposes of aggravated murder is analogous to the sta-

tus of being intoxicated for purposes of DUII, in that both

are attendant circumstances that do not require proof of a

mental state for proof of the completed crime. He argues

that Snyder stands for the proposition that a person cannot

“attempt” an attendant circumstance of that nature because

it is a binary status that either exists or does not. Therefore,

in defendant’s view, a person who does not succeed in killing

at least one person had not attempted, for purposes of the

law, to commit the crime of attempted aggravated murder.

Although that comparison between this case and Snyder is

not without some force, it ultimately does not persuade us

Cite as 305 Or App 548 (2020) 557

that our straightforward reading of the attempt statute in

Quintero is wrong and should be overruled.

For one, as explained above, that reading is consis-

tent with the text of the attempt statute and with the legis-

lative intentions in defining the inchoate crime of attempt.

The court in Snyder did not address Quintero or purport to

be displacing its holding. Further, the analysis in Snyder

was specific to the “status” of being intoxicated under DUII

statutes, and there is no reason to believe that the court

was creating a rule to apply more broadly to a context like

attempted aggravated murder, or that the Snyder court

viewed the status of being intoxicated under the DUII stat-

utes as equivalent to the circumstance of a criminal epi-

sode involving more than one murder victim that defines the

offense of aggravated murder under ORS 163.095(1)(d). See

Snyder, 288 Or App at 62 (explaining that “simply driving

after having consumed alcohol” is “perhaps inadvisable” but

“not proscribed by law, and does not constitute an attempt

to commit a criminal act”). Finally, Quintero is not the only

one of our published cases to recognize that a person com-

mits the offense of attempted aggravated murder by inten-

tionally engaging in conduct that constitutes a substantial

step toward the killing of more than one person in the same

criminal episode, even if that conduct does not result in the

death of anyone. See State v. Goltz, 169 Or App 619, 10 P3d

955 (2000), rev den, 331 Or 583 (2001) (holding that verdicts

on two counts of attempted aggravated murder based on the

defendant’s unsuccessful attempt to kill two people in the

same criminal episode did not merge; concluding that there

are as many counts of attempted aggravated murder as

there are potential victims). Defendant has not persuaded

us that Turnidge and Snyder, neither of which dealt with the

issue at hand, call that entire line of authority into question.

In sum, under Quintero, the trial court correctly

denied defendant’s motion in arrest of judgment. In addition

to the assignment of error that defendant raises in his brief

submitted through counsel, defendant has raised two pro se

supplemental assignments of error. Having considered

them, we reject them without further written discussion.

Affirmed.