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Oregon Supreme Court Holds ‘Attempt’ Requires Intent to Personally Participate in the Crime

by Dale Chappell

In order to be found guilty of an attempt to commit a crime, the defendant must have intended to personally participate in the crime, and the attempt to solicit another person to commit the crime is not a true “attempt” under Oregon law, the Supreme Court of Oregon held. 

After being arrested on charges of burglary for attempting to steal some cans to trade in for money so he could feed his family living in a vehicle, Dustin Kimbrough, a homeless man in Wasco County, wrote a letter to a ‘‘hitman” he wanted to hire to kill his in-laws for some insurance money. He also wanted the hitman to scare off some witnesses and kill the prosecutor in his case. The hitman didn’t exist, and Kimbrough was charged with several crimes, including attempted murder and solicitation of murder for each intended victim. After a bench trial, Kimbrough was found guilty of the attempted murders and also the solicitation of murder charges. He appealed, and the Oregon Supreme Court agreed to hear the case. 

The question before the Court was “Under what circumstances does a solicitation to commit a crime also constitute an attempt to commit that crime?” Under Oregon Revised Statutes 161.405(1), 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.” But the attempt statute is ambiguous, the Court explained, because it doesn’t say whether the “commission of the crime” must be by the defendant himself. 

After an in-depth review of the legislative history of the statute, commentary by the Criminal law Review Commission, and the Model Penal Code, the Court concluded that the defendant must have intended to personally take part in the attempted crime. Otherwise, “it can hardly be asserted that the defendant intends to engage in that conduct.” 

The drafters of Oregon’s attempt statute had a “clear opportunity” to expand the statute to include solicitation of another person to commit the crime, the Court noted. The Model Penal Code does include the solicitation of another person to commit the crime as an “attempt” by the solicitor. But lawmakers purposely left that out, the Court said. 

That omission was “significant” and answers the question in this case. Here, Kimbrough provided details to the supposed hitman to allow him to commit the crimes. However, Kimbrough himself never intended to take part in in those crimes. “To be guilty of attempt, the defendant must personally engage in conduct that constitutes a substantial step, and that substantial step must be toward a crime that the defendant intends to participate in himself,” the Court concluded. 

The evidence showed only that Kimbrough intended for the hitman to commit the crimes. 

Accordingly, the Court held that the circuit court erred in denying Kimbrough’s motion for a judgment of acquittal on the attempt counts. The Court remanded the case for further proceedings in accordance with its opinion. See: State v. Kimbrough, 431 P.3d 76 (Ore. 2018). 

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