State v. Kyger

363

Argued and submitted September 23, 2021, resubmitted January 25; decision

of Court of Appeals and judgment of circuit court affirmed March 22; petitioner

on review’s petition for reconsideration filed March 23, considered and under

advisement April 12, allowed by opinion April 21 2022

See 369 Or 604, 509 P3d 112 (2022)

STATE OF OREGON,

Respondent on Review,

v.

SCOTT WILLIAM KYGER,

Petitioner on Review.

(CC 17CR08793) (CA A165404) (SC S068337)

506 P3d 376

Defendant was charged with and convicted of two counts of attempted aggra-

vated murder for cutting the necks of two people with a razor blade. Defendant

challenged the indictment, arguing that a circumstance element of an offense

must exist as a predicate for attempt liability, and that, because neither victim

died, the indictment did not properly allege the aggravating circumstance that

there was “more than one murder victim in the same criminal episode” under

ORS 163.095(1)(d). The trial court rejected that argument. The Court of Appeals

affirmed. Held: Attempted aggravated murder under ORS 163.095(1)(d) requires

intentional conduct constituting a substantial step toward causing the deaths

of more than one victim in the same criminal episode. The existence of multi-

ple deaths is an attendant circumstance that must be present for the completed

crime of aggravated murder, but it is not required for the inchoate offense of

attempted aggravated murder.

The decision of the Court of Appeals and the judgment of the circuit court

are affirmed.

On review from the Court of Appeals.*

Anne Fujita Munsey, Deputy Public Defender, Office of

Public Defense Services, Salem, argued the cause and filed

the briefs for petitioner on review. Also on the briefs was

Ernest G. Lannet, Chief Defender.

Susan G. Howe, Assistant Attorney General, Salem, argued

the cause and filed the brief for respondent on review. Also

on the brief were Ellen F. Rosenblum, Attorney General, and

Benjamin Gutman, Solicitor General.

______________

* On appeal from Clackamas County Circuit Court, Michael C. Wetzel,

Judge. 305 Or App 548, 471 P3d 764 (2020).

364 State v. Kyger

Before Walters, Chief Justice, and Balmer, Flynn, Duncan,

Nelson, Garrett, and DeHoog, Justices.**

GARRETT, J.

The decision of the Court of Appeals and the judgment of

the circuit court are affirmed.

______________

** Nakamoto, J., retired December 31, 2021, and did not participate in the

decision of this case.

Cite as 369 Or 363 (2022) 365

GARRETT, J.

During a single criminal episode, defendant cut the

necks of two people with a razor blade. For that conduct,

the state charged him with two counts of attempted aggra-

vated murder under ORS 163.095 (2015)1 and ORS 161.405

(2015).2 ORS 163.095(1)(d) provides that one of the circum-

stances elevating murder to aggravated murder is the exis-

tence of “more than one murder victim in the same criminal

episode.” Defendant was convicted of both counts.

The question before this court is whether the state

charged a viable theory of attempted aggravated murder.

Defendant contends that the existence of “more than one

murder victim” is a circumstance that must exist for a

person to be guilty of aggravated murder; that it did not

exist here because neither victim died; and that defendant’s

intentional conduct did not amount to attempted aggra-

vated murder because a person cannot “attempt” to commit

a circumstance element of an offense. In defendant’s view,

the allegations supported, at most, charges for attempted

murder. The trial court and the Court of Appeals disagreed

with defendant. We affirm.

I. BACKGROUND

Defendant and his girlfriend were recruited by

three people to participate in a scheme to make money by

purchasing and reselling cellular phones. Defendant did not

successfully purchase any phones, and he made no money in

the scheme. At the conclusion of their efforts, all five people

were in a vehicle, with defendant and his girlfriend seated

next to each other in the rear seat. Defendant grew angry

1

The legislature amended ORS chapter 163 in 2019. Or Laws 2019, ch 635,

§ 1. In the amended 2019 statute, the “more than one murder victim” circum-

stance element was moved from the category of “aggravated murder” to that of

“first-degree murder.” Id. § 3. The text of that element otherwise remained the

same. Id. Amendments to other sections of chapter 163 also do not affect our

analysis. Because the underlying events in this case occurred in 2016, all cita-

tions in this opinion are to the 2015 version of the statutes in ORS chapter 163,

unless stated otherwise.

2

The legislature also amended ORS 161.405 in 2019. Or Laws 2019, ch 635,

§ 15a. The amendments added “aggravated murder” to the Class A felony cat-

egory of attempt. Those amendments did not change the definition of attempt.

Because the underlying events in this case occurred in 2016, all citations in this

opinion to ORS 161.405 are to the 2015 version, unless stated otherwise.

366 State v. Kyger

when he was informed that he would not be paid. When the

vehicle came to a stop, he reached across the seat, grabbed

the head of the victim seated behind the driver, and cut the

victim’s neck with a razor blade. He did the same thing to

the driver, and he struck the third victim with his fists. The

two victims of the razor-blade attack were injured but sur-

vived. Defendant later told police that he “wanted to kill” all

three victims.

The state charged defendant with, among other

counts, two counts of attempted aggravated murder, as

follows:

“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.”

After a bench trial, defendant was convicted of both attempted

aggravated murder counts and other crimes.

At sentencing, defendant renewed a pretrial demur-

rer by making a motion in arrest of judgment. Defendant

argued that the aggravating factor set out in ORS 163.095

(1)(d) is a circumstance element of the offense, not a conduct

element, and that a circumstance either exists or not—it

cannot be “attempted.” Thus, defendant insisted, the indict-

ment failed to allege a valid theory of attempted aggravated

murder. The trial court disagreed and denied the motion.

On appeal, defendant renewed his argument. The

Court of Appeals affirmed, relying on its own precedent in

State v. Quintero, 110 Or App 247, 257, 823 P2d 981 (1991),

modified on other grounds on recons, 114 Or App 142, 834

P2d 496, rev den, 314 Or 392 (1992) (“The state presented

evidence to show that defendants had intentionally engaged

Cite as 369 Or 363 (2022) 367

in conduct constituting a substantial step toward the mur-

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

vated murder.”). State v. Kyger, 305 Or App 548, 471 P3d 764

(2020).

We allowed review to consider defendant’s argu-

ment that, under ORS 163.095(1)(d), the death of “more than

one murder victim in the same criminal episode” is a cir-

cumstance that must exist for the state to properly charge

the inchoate crime of attempted aggravated murder.3

II. ANALYSIS

The parties’ arguments implicate two statutes: ORS

163.095, which defines the crime of aggravated murder,

and ORS 161.405, which defines the crime of attempt. We

resolve the interpretative dispute by discerning the intent

of the legislature as demonstrated by the text, context, and

any helpful legislative history. State v. Gaines, 346 Or 160,

171-72, 206 P3d 1042 (2009).

A. The Aggravated Murder Statute

Aggravated murder is a heightened form of criminal

homicide. ORS 163.095; ORS 163.115(1)(a). Criminal homi-

cide is committed when a person intentionally, knowingly,

recklessly, or with criminal negligence causes the death

of another human being without justification or excuse.

ORS 163.005. Criminal homicide, if committed intention-

ally, is murder. ORS 163.115(1)(a). Murder becomes aggra-

vated murder under specified circumstances. ORS 163.095.

This case concerns one of those circumstances, the murder

of more than one victim, as set out in ORS 163.095(1)(d).

Because other circumstances set out in ORS 163.095 pro-

vide relevant context, we include the full text of the statute

here:

“As used in ORS 163.105 and this section, ‘aggravated

murder’ means murder as defined in ORS 163.115 which is

committed under, or accompanied by, any of the following

circumstances:

3

Although defendant raised other issues in his petition for review, he failed

to present any briefing or argument on those issues. Accordingly, we do not reach

them.

368 State v. Kyger

“(1)(a) The defendant committed the murder pursuant

to an agreement that the defendant receive money or other

thing of value for committing the murder.

“(b) The defendant solicited another to commit the

murder and paid or agreed to pay the person money or

other thing of value for committing the murder.

“(c) The defendant committed murder after having

been convicted previously in any jurisdiction of any homi-

cide, the elements of which constitute the crime of murder

as defined in ORS 163.115 or manslaughter in the first

degree as defined in ORS 163.118.

“(d) There was more than one murder victim in the

same criminal episode as defined in ORS 131.505.

“(e) The homicide occurred in the course of or as a

result of intentional maiming or torture of the victim.

“(f) The victim of the intentional homicide was a per-

son under the age of 14 years.

“(2)(a) The victim was one of the following and the

murder was related to the performance of the victim’s offi-

cial duties in the justice system:

“(A) A police officer as defined in ORS 181A.355;

“(B) A correctional, parole and probation officer or

other person charged with the duty of custody, control or

supervision of convicted persons;

“(C) A member of the Oregon State Police;

“(D) A judicial officer as defined in ORS 1.210;

“(E) A juror or witness in a criminal proceeding;

“(F) An employee or officer of a court of justice;

“(G) A member of the State Board of Parole and Post-

Prison Supervision; or

“(H) A regulatory specialist.

“(b) The defendant was confined in a state, county or

municipal penal or correctional facility or was otherwise in

custody when the murder occurred.

“(c) The defendant committed murder by means of an

explosive as defined in ORS 164.055.

Cite as 369 Or 363 (2022) 369

“(d) Notwithstanding ORS 163.115(1)(b), the defen-

dant personally and intentionally committed the homicide

under the circumstances set forth in ORS 163.115(1)(b).

“(e) The murder was committed in an effort to conceal

the commission of a crime, or to conceal the identity of the

perpetrator of a crime.

“(f) The murder was committed after the defendant

had escaped from a state, county or municipal penal or

correctional facility and before the defendant had been

returned to the custody of the facility.”

ORS 163.095.

The legislature enacted the aggravated murder

statute as part of a sentencing bill in 1977. Or Laws 1977,

ch 370, § 1. The purpose of that bill was to enhance penal-

ties for aggravated murder and impose harsher sentences

for dangerous offenders. Minutes, House Committee on

Judiciary, HB 2011, Mar 23, 1977. The 1977 bill provided for

different minimum sentences for “the most heinous” crimes,

which carried a sentence of life without the possibility of

parole, and what the legislature considered less heinous

crimes, which carried a mandatory minimum of 20 years.

Or Laws 1977, ch 370, § 2; Minutes, House Committee on

Judiciary, HB 2011, Apr 22, 1977. In 1981, the legislature

amended the statute to move the “multiple victims” provi-

sion at issue in this case to the “more heinous” category of

aggravated murder. Or Laws 1981, ch 873, § 1. Thus, we

understand from the statute’s text, context, and legislative

history that the legislature viewed murder as an especially

serious offense in cases with multiple victims.

Aggravated murder involving the circumstance

set out in ORS 163.095(1)(d) requires that the defendant

(1) intentionally; (2) caused the death of another human being;

(3) when there was more than one murder victim in the same

criminal episode.4 If the victims in this case had died and

the state had charged defendant with aggravated murder,

4

In ORS 163.095(1)(d), “criminal episode” refers to “continuous and unin-

terrupted conduct that establishes at least one offense and is so joined in time,

place and circumstances that such conduct is directed to the accomplishment of

a single criminal objective.” ORS 131.505(4). There is no dispute in this case that

the charged conduct occurred within a single criminal episode.

370 State v. Kyger

the state would not have been required to show that defen-

dant acted with the intent to kill multiple victims. In State

v. Turnidge (S059155), 359 Or 364, 502, 504, 374 P3d 853

(2016), we held that the existence of “more than one murder

victim” in ORS 163.095(1)(d) is an attendant circumstance

rather than an aspect of the prohibited conduct, and that it

does not require proof of a mental state. Thus, so long as a

defendant acts with the intent to cause the death of at least

one person, the state does not have to prove whether he or

she specifically intended to kill more than one person. Id. at

504. That conclusion in Turnidge is an important feature of

defendant’s argument here, as explained later in this opinion.

B. The Attempt Statute

The crime of “attempt” is set out in ORS 161.405(1):

“A person is guilty of an attempt to commit a crime when

the person intentionally engages in conduct which consti-

tutes a substantial step toward commission of the crime.”

The attempt statute was enacted as part of the Oregon

Criminal Code revision in 1971. Or Laws 1971, ch 743, § 54.

As we have explained, attempt is an “inchoate offense,”

along with solicitation and conspiracy, because it “may

result in a conviction even when no substantive crime has

been completed.” State v. Kimbrough, 364 Or 66, 73, 431 P3d

76 (2018).

This court has construed the attempt statute on two

occasions. In State v. Walters, 311 Or 80, 85, 804 P2d 1164,

cert den, 501 US 1209 (1991), we held that the statute cod-

ifies the Model Penal Code’s “substantial step” test, which

draws a line between conduct that is “mere preparation” for

criminal activity (and is insufficient to create liability), and

conduct that goes further:

“ORS 161.405 codifies the Model Penal Code’s ‘substan-

tial step’ test for distinguishing acts of preparation from an

attempt. ‘In § 5.01(2), the Model Penal Code states that to

be a substantial step the act must be “strongly corrobora-

tive of the actor’s criminal purpose[,]” ’ i.e., defendant’s con-

duct must (1) advance the criminal purpose charged and

(2) provide some verification of the existence of that

purpose.”

Cite as 369 Or 363 (2022) 371

Id. at 85 (internal citations and footnotes omitted). In

Walters, we upheld the defendant’s convictions for attempted

first-degree kidnapping, attempted first-degree rape, and

attempted first-degree sodomy, reasoning that the evidence

was sufficient to permit a finding that he took a substantial

step toward the commission of each crime. Id. at 86 (“[The]

defendant’s persistent efforts to entice the intended victim

into his truck, his following the girl, and his statements to

the police officer and to the girl’s mother strongly corrobo-

rate his criminal purpose to kidnap, rape, and sodomize the

13-year-old girl.”).

Thus, Walters held that, to be a substantial step,

the defendant’s conduct must (1) advance the criminal pur-

pose charged and (2) provide some verification of the exis-

tence of that purpose. Id. at 85. Our second case construing

the attempt statute, Kimbrough, addressed the first prong

of that requirement. In that case, the defendant was con-

victed of (among other things) attempted aggravated mur-

der for soliciting a hitman, through his cellmate, to kill

several people. Kimbrough, 364 Or at 68. In fact, there was

no hitman, and the defendant’s cellmate was cooperating

with law enforcement. Id. at 70. On appeal, the defendant

argued that he had not taken a substantial step because,

given the nonexistence of the hitman, the conduct failed

to actually “advance the criminal purpose charged.” Id. at

73-74. This court disagreed, based on the statute that spe-

cifically addresses the concept of impossibility as a defense

to attempt crimes:

“In a prosecution for an attempt, it is no defense that it

was impossible to commit the crime which was the object

of the attempt where the conduct engaged in by the actor

would be a crime if the circumstances were as the actor

believed them to be.”

ORS 161.425. We explained that that statute, like the attempt

statute, was drawn from the Model Penal Code, the commen-

tary to which reasoned that “ ‘the liability of the actor turns

on his purpose, considered in the light of his beliefs, and not

on what is actually possible under existing circumstances.’ ”

Kimbrough, 364 Or at 75 (quoting Model Penal Code, § 5.01

(Tentative Draft No 10, 1960)). Despite some differences

372 State v. Kyger

between the Model Penal Code and the statutes that the

1971 legislature enacted, we concluded that the legislature

retained the “basic policy” and that “Oregon attempt law

treats impossibility the same way as [the] Model Penal Code

did.” Id. In light of that, the defendant’s focus on whether the

hitman actually existed was misplaced:

“The question posed by the first prong of the Walters

formulation is not, therefore, whether the act actually

advanced the defendant’s criminal purpose. What matters

is whether the act would have advanced the defendant’s

criminal purpose were the facts as the defendant believed

them to be. Here, then, what matters to the state’s theory

is not whether the hitman did exist, but whether defendant

so believed.”

Id. at 75 (emphases in original).

C. The Parties’ Arguments

The state takes the position that defendant is guilty

of two counts of attempted aggravated murder under a

straightforward application of the statutory definitions. In

the state’s view, that conclusion follows from the fact that

defendant “intentionally engage[d] in conduct,” the cutting

of the victims’ necks, which constituted a “substantial step

toward the commission of the crime” of causing two deaths

in the same criminal episode—i.e., aggravated murder. The

Court of Appeals agreed. Kyger, 305 Or App at 557. That

court first noted that it had already decided, in Quintero,

that the crime of attempted aggravated murder may consist

of “ ‘intentionally engag[ing] in conduct constituting a sub-

stantial step toward the murder of more than one person.’ ”

Id. at 553 (quoting Quintero, 110 Or App at 257). The court

went on to explain that Quintero was consistent with the

statutory text:

“When [the] definition of attempt is considered in connec-

tion with the particular crime of aggravated murder as

defined by ORS 163.095(1)(d), those provisions easily cap-

ture 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 ulti-

mately succeeds in killing no one[.]”

Kyger, 305 Or App at 554.

Cite as 369 Or 363 (2022) 373

In challenging that conclusion, defendant reprises

his argument that the crime of attempted aggravated mur-

der requires the aggravating circumstance to “exist,” and

that an indictment fails to allege the crime if it charges only

that a defendant intended to bring the aggravating circum-

stance about.

At the outset, we note the way in which defendant

has framed the issue for our review. Defendant agrees that

the crime of attempt has two elements: (1) intentional con-

duct that (2) constitutes a substantial step toward the com-

mission of the crime. Defendant then states: “Only the first

requirement is at issue in this case. The question is how

the intentional conduct in the attempt statute relates to the

various elements of the substantive crime.”

Although defendant asserts that only the “inten-

tional conduct” element is at issue, defendant does not dis-

pute that all of the charged conduct was intentional. That is,

defendant has not argued that his separate acts of attack-

ing both victims with a razor blade were committed without

an intent to kill. Rather, we understand defendant’s argu-

ment to be that the state’s allegation that he intentionally

tried to kill both victims is insufficient, because the crime

of attempted aggravated murder under ORS 163.095(1)(d)

requires an element that was not alleged here (i.e., that mul-

tiple victims died).

At its core, defendant’s argument depends on the

proposition that a “circumstance” element, which must exist

(like any other element) for a substantive crime to be com-

pleted, must also exist for an attempt crime to be completed.

Defendant derives that proposition from several sources.

First, he points out that the mental-state definitions in

ORS 161.085(7) associate “intent” with conduct or result

elements; in contrast, circumstance elements are associated

with the mental states of knowledge, recklessness, and crim-

inal negligence in ORS 161.085(8), (9), and (10). Defendant

further points out that those provisions refer to a circum-

stance as either existing or not. Thus, defendant reasons, a

person can act with knowledge that a circumstance exists or

be reckless or criminally negligent as to whether it exists,

but the concept of “intending” a circumstance is unknown

374 State v. Kyger

to Oregon criminal law. Accordingly, defendant asserts, the

“intentional conduct of the attempt statute does not apply to

the circumstance elements of a crime.”

Defendant further supports his argument with

citations to legislative history. He relies, as this court

has done, on the commentary that accompanied the 1971

Criminal Code revision. See Kimbrough, 364 Or at 77. From

the commentary, defendant draws two observations. First,

the commentary to the attempt statute specifies that the

intent requirement is satisfied where “the defendant intends

to engage in the conduct which will constitute the crime,”

and that the defendant “need not necessarily contemplate

all of the surrounding circumstances included in the defini-

tion of the crime.” Commentary to Criminal Law Revision

Commission Proposed Oregon Criminal Code, Final Draft

and Report § 54, 51 (July 1970). Thus, in defendant’s words,

“attempt crimes address the conduct elements of a substan-

tive crime—that is what the defendant must intend.”

Second, the commentary explains that the defen-

dant must “intend to perform acts and attain a result which,

if accomplished, would constitute the crime.” See id. (inter-

nal quotation marks omitted; emphasis added). Defendant

takes the italicized phrase to mean that a person is guilty

of attempt only if, had his intended course of conduct been

completed, the crime would have been accomplished, which

“can only occur if the circumstance element of the crime

exists.”

Finally, defendant relies on Turnidge, which, as

noted above, held that the death of multiple victims in ORS

163.095(1)(d) is a “circumstance” that requires no separate

proof of mental state. 359 Or at 504. In defendant’s view,

that supports the understanding that a person’s intent as

to that circumstance is “irrelevant” for purposes of attempt

liability, from which it follows that, just as the circumstance

must exist for a person to be guilty of the completed crime

of aggravated murder, it must also exist for the crime of

attempt.

The two building blocks of defendant’s argument—

first, that the mental state of “intent” is not ordinarily

Cite as 369 Or 363 (2022) 375

associated with “circumstance” elements of offenses; sec-

ond, that a circumstance element must “exist” in order for

a substantive crime to be completed—are correct state-

ments of the law as far as they go. They fail, however, to

support defendant’s ultimate claim that the inchoate crime

of attempt cannot occur unless a circumstance element of

the underlying offense actually exists.

Defendant’s contention is contrary to both the text

and the history surrounding the attempt statute, which

show that the focus of attempt liability is entirely on an

actor’s criminal purpose as manifested by his or her con-

duct, and not on whether any element of the crime has been

completed or whether the crime is impossible or unlikely to

occur.

Textually, the attempt statute is not worded in a

manner that requires the completion or existence of any

element of an offense. It requires only that an actor have

“intentionally” engaged in “conduct” that constitutes a “sub-

stantial step” toward the commission of the crime. ORS

161.405. “Conduct” is defined in the Criminal Code as “an

act or omission and its accompanying mental state.” ORS

161.085(4). An “act” is defined as “a bodily movement.” ORS

161.085(1). Thus, an act or series of acts, when accompanied

by the mental state of “intentionally,” is sufficient to create

attempt liability if it amounts to a substantial step toward

completing a criminal offense, which is different from say-

ing that one or more elements of the offense must exist.

Moreover, the attempt statute is silent as to the existence

or nonexistence of “circumstances.” See ORS 161.405. If an

actor takes sufficient intentional steps toward achieving a

defined criminal objective, the text of the attempt statute is

unconcerned with whether circumstances or other elements

necessary to the completion of the crime exist.

That understanding is reinforced by the stat-

ute’s context and legislative history. Context includes the

impossibility statute, ORS 161.425, which we construed in

Kimbrough. There, we explained that “[t]he plain text of

ORS 161.425 provides that attempt liability does not rest

on the actual likelihood of the crime occurring.” Kimbrough,

364 Or at 74. Rather, attempt liability rests on charging and

376 State v. Kyger

proving that a defendant “ ‘purposely d[id] * * * anything

which, under the circumstances as he believes them to be, is

a substantial step in a course of conduct planned to culmi-

nate in his commission of the crime.’ ” Id. at 74-75 (quoting

Model Penal Code, § 5.01(1)(c) (Tentative Draft No 10, 1960)

(emphasis in Kimbrough)). That understanding of how the

attempt statute and the impossibility statute work together

is difficult to square with the idea that a circumstance must

actually exist.

Defendant argues that the term “circumstances”

in ORS 161.425, and our discussion of it in Kimbrough, is

meant to refer to “surrounding facts” or “circumstances in

the world” rather than to circumstance “elements” of crimes.

That is, as we understand defendant’s argument, he con-

tends that a person can be liable for attempt if he or she

has a misunderstanding about “facts” (such as whether the

intended victim of a shooting was in a certain location, or

whether a wallet that was the target of theft was in a partic-

ular pocket). But, in defendant’s view, a person cannot be lia-

ble for attempt if a circumstance element—i.e., one included

in the statutory definition of the crime that is necessary for

the completion of that crime—does not exist.

Defendant further illustrates that distinction through

the use of hypotheticals, such as the crime of unlawful deliv-

ery of a controlled substance within 1,000 feet of a school,

ORS 475.904. He argues that, because the delivery of drugs

is the prohibited conduct and the proximity to a school is an

attendant circumstance, a person can be guilty of attempt

if (1) he attempts to deliver drugs, and (2) a school actually

exists within 1,000 feet of where the attempt occurred, but

the person cannot be guilty of attempt if he (1) actually deliv-

ers drugs, and (2) mistakenly believes he is doing so within

1,000 feet of a school. That is because, as defendant puts it,

“the circumstance element [of the offense] does not exist.”

For several reasons, we reject defendant’s proposed

distinction between mistakes about “facts” and missing “cir-

cumstances.” First, analytically, no such distinction is easily

drawn. The status of a victim as a police officer, for example,

is both a “surrounding fact” and an attendant circumstance

that elevates murder to aggravated murder under ORS

Cite as 369 Or 363 (2022) 377

163.095(2)(a)(A). A circumstance element is simply a fact

that the legislature has imbued with legal significance.

Second, defendant’s argument is inconsistent with

the discussion of “impossibility” that surrounded the enact-

ment of the attempt statute in 1971. Defendant begins with

the correct proposition that the absence of a circumstance

element makes it legally impossible to complete a substan-

tive crime. From there, defendant reasons that it should

not be possible to “attempt” the crime, because, without the

existence of the necessary circumstance, the criminal objec-

tive could not have been achieved even if the actor had com-

pleted his intended course of conduct.

Attempt liability, however, is not concerned with

whether the criminal objective could have been achieved. It

is concerned with the demonstrated dangerousness of the

actor.

We return, as we have before, to the commen-

tary that accompanied the 1971 Criminal Code revision.

Kimbrough, 364 Or at 77 (“[W]e look principally to the

draft commentary provided by the Criminal Law Revision

Commission to illuminate [the legislature’s intended] mean-

ing.”). In the commentary to the “impossibility” section (now

codified at ORS 161.425), the drafters stated unequivocally

that neither factual nor legal impossibility is a defense to

attempt liability:

“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

emphasis in the older view was that the nature of the act

should be determinative of the guilt of the actor. Pursuant

to this view it has been held, for instance, that if an actor

tried to receive property he believed stolen when the prop-

erty was in fact not stolen, his act was not legally criminal

because it was impossible to commit the crime of attempt

to conceal that which was not stolen. His act was viewed

objectively as no threat to society because it was a ‘legal

impossibility.’ Yet viewed from the subjective standpoint of

the actor, the intent and purpose were criminal and but for

the actor’s mistaken understanding of the circumstances

the crime would have been committed.

378 State v. Kyger

“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.’

“This section would make the actor liable in all ‘impos-

sibility’ situations. This includes in addition to the ‘legal’

impossibility cases the so-called ‘factual’ impossibility sit-

uations. The case where an actor attempts to steal from the

pocket of another when the pocket is empty or where the

actor shoots into an empty bed believing it occupied by the

intended victim are common examples of ‘factual’ impossi-

bility. Also encompassed within this section is a prohibition

on a defense of ‘inherent’ impossibility. Thus it would be no

defense if black magic is the means chosen for the attempt,

e.g., the actor makes a doll and repeatedly stabs it with pins

believing that the intended victim thereby will be killed.

Although the means chosen is clearly ineffective the per-

sonality of the actor is potentially dangerous. In such cases

it may very well occur to the black magic practitioner, after

repeated failures of legerdemain, that other more effective

means to kill are available.

“* * * * *

“Though the Oregon law that factual impossibility is no

defense seems settled * * *, no Oregon decision was found

dealing with legal impossibility. The two are not really

different as a policy matter. The draft section, like all the

other modern codes, treats legal impossibility the same as

factual impossibility and allows neither as a defense.”

Commentary § 55 at 52-53 (internal citations omitted).

Thus, it is clear that the impossibility of committing

a substantive crime, whether because of a mistaken belief, a

failed circumstance, or an “ineffective” means, has little or no

bearing on whether a person who tries to commit that crime

is someone whom the legislature intended to punish under

the attempt statute.5 If that person intentionally engages in

5

The drafters noted one caveat to the rule that impossibility is not a defense.

To be guilty of attempt, the actor must have an objective that is, in fact, criminal.

Thus, a person who believes he is breaking the law by engaging in conduct that is

entirely legal has committed no crime, not even attempt. Commentary § 55 at 53 (“If,

Cite as 369 Or 363 (2022) 379

conduct manifesting a criminal objective, then the legisla-

ture intended for that person to be guilty of attempt, and it

is no defense that the criminal objective was impossible or

unlikely to be realized.

Defendant’s distinction between a mistake about

facts and a missing circumstance is, therefore, untenable.

No such distinction is supported by the commentary, which

links attempt liability to whether the actor manifested a

dangerous intent, not to the particular reason why the actor

failed in the criminal objective. Commentary § 55 at 52.

Indeed, the commentary strongly indicates that the reason

is irrelevant. Id. at 53.

Defendant’s argument relies on additional propo-

sitions that are not supportable. It presumes, as discussed

earlier, that circumstance elements cannot be intended or

attempted. Practically speaking, that is not true. Defendant

is correct that the definitions in ORS 161.085 contemplate

that a circumstance will exist or not, and that they do not

contemplate a person acting “intentionally” as to a circum-

stance. See ORS 161.085(7) (defining “intentionally” as

applying to conduct or result elements, not to circumstance

elements). Those definitions, however, are generally written

with a view toward substantive crimes, and they make clear

that a person need not have intended that a circumstance

exist in order to complete a crime. The other authorities on

which defendant relies similarly show that a person need

not intend or contemplate an attendant circumstance to be

criminally liable. That does not mean that a person cannot

intend to bring about a circumstance. Common sense tells

us otherwise. A person who intends to sell drugs to children

can certainly locate what he believes to be a school building

and then, for that reason, conduct his operations across the

street. In that case, it would be difficult to deny that he has

intended for the circumstance element of the offense to exist,

even if the building turns out not to be a school. As another

example, a review of the various attendant circumstances in

the aggravated murder statute shows that, although some

according to his beliefs as to facts and legal relationships, the result desired or

intended is not a crime, the actor will not be guilty of an attempt even though he

firmly believes that his goal is criminal.”).

380 State v. Kyger

of them relate to matters like the status or age of the vic-

tim, others concern matters that plainly would be within

a defendant’s control, such as whether the murder was

committed in exchange for money, ORS 163.095(1)(a), (b);

whether it was connected to the “intentional maiming or

torture of the victim,” ORS 163.095(1)(e); and whether it was

committed “by means of an explosive,” ORS 163.095(2)(c). As

those examples illustrate, the designation of an element as

a circumstance does not mean that it is beyond a person’s

ability to influence, create, or intend.6

Finally, although a person need not intend a cir-

cumstance to be criminally liable, it hardly follows that the

legislature did not want attempt liability to attach to some-

one who did intend that circumstance. The attempt statute

is concerned with what a person tried to do. If the legisla-

ture defines a crime and then identifies circumstances that

make the crime particularly heinous, a person who takes

deliberate steps to bring those circumstances about has

demonstrated the heightened dangerousness that the leg-

islature sought to deter and punish by creating the aggra-

vated version of the crime. The failure to produce those cir-

cumstances means that the person cannot be guilty of the

completed crime, but it would frustrate the purpose of the

attempt statute to ignore the effort and conclude that the

person is not guilty even of the inchoate crime. Defendant

has not explained how the legislature’s intent would be

served by such a result.

In this case, defendant undisputedly had the objec-

tive of killing multiple victims in the same criminal epi-

sode and engaged in intentional conduct toward that end.

Accordingly, he attempted to commit the crime that the

legislature has defined in ORS 163.095(1)(d). The crime of

attempt was not rendered impossible, in retrospect, because

of the happenstance that neither victim died.

6

Turnidge, on which defendant relies, is not to the contrary. What Turnidge

established is that the state may prove the aggravating circumstance of

“more than one murder victim” without showing that the defendant intended

to bring it about. 359 Or at 504. That aspect of our discussion in Turnidge

was unrelated to attempt crimes, and the notion that defendant draws from

it—that it is not possible to “intend” or “attempt” a circumstance—does not

follow.

Cite as 369 Or 363 (2022) 381

In short, the state’s theory of attempted aggravated

murder is a viable one, and it was properly charged. We

repeat the wording of the charges here:

“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.”

Each count states the required elements of attempted aggra-

vated murder under ORS 161.405 and ORS 163.095(1)(d):

(1) intentional conduct (2) that constituted a substantial

step toward causing the deaths of more than one victim in

the same criminal episode. The state did not need to use any

specific phrases or terms to adequately convey the charge in

the indictment. ORS 132.540(4)7 (“Words used in a statute

to define a crime need not be strictly pursued in the indict-

ment, but other words conveying the same meaning may be

used.”). The occurrence of multiple deaths is required for the

completed crime of aggravated murder, but it is not required

for the inchoate crime of attempted aggravated murder.

Defendant’s argument that the indictment lacked a neces-

sary element is incorrect.

The decision of the Court of Appeals and the judg-

ment of the circuit court are affirmed.

7

ORS 132.540 has been amended since defendant committed the crime.

Those amendments did not change the text of subsection (4), nor do they affect

our analysis.