The Theory of Attempted Aggravated Murder that Doesn't Exist

This wikilog article is a draft, it was not published yet.

by: Ryan • May 5, 2016 • no comments

Assume a defendant shoots at -- and misses -- two people. It's quite common that that defendant will be charged with attempted aggravated murder for attempting to kill one person while attempting to kill another.

I have long argued -- but never in court, alas -- that that theory of attempted aggravated murder does not exist. I have written a demurrer that I have freely handed out and only gotten maybe three people to file, and only one to argue. Although this charge comes up quite often in Multnomah County, defense attorneys generally struggle with the argument conceptually and I think are discouraged from putting forth an argument they don't quite feel in their bones.

Well, today, the OSC ruled that my argument is . . . well, it didn't actually rule on the issue, but they did rule on the premise that undergirds my argument, and the Court reached the same conclusion I've been asserting.

The argument hinges on a simple rule: a person cannot be convicted of a crime based on attempting to commit a circumstance.

What does that mean? It means this. All crimes have elements. But the elements -- and of course I'm only focusing on material elements -- can be defined differently: conduct, circumstance and result. Delivery drugs is conduct. Within a thousand feet of a school is a circumstance. A person dying from the drugs is a result. Moreover, not all mental states apply to all elements. So, for example, you can recklessly cause a result (e.g., recklessly cause injury), but you can't recklessly commit conduct (e.g., you can't recklessly deliver drugs). I will be happy to provide authority for this, of which there's plenty, to anyone who asks, but let's just say these rules are not at all in dispute.

The reason a person cannot be convicted for attempting to commit a circumstance is that all attempt crimes carry an intentional mental state, per statute. And the law does not allow an intentional mental state to apply to circumstances. In other words, in order to charge someone with a crime that requires attempting a circumstance, the prosecutor would have to violate the law against apply the intentional mental state to circumstances, or would have to violate the law by having a lesser mental state applied to an attempt.

Obviously, the law permits the crime of attempting to kill someone. Because you can intentionally attempt either conduct (killing someone) or result (causing their death). But the crime of aggravated murder -- based on a theory where two people are dead -- is not defined, per statute, as attempting to kill two people. Rather, it's written in such a way that a defendant need only intentionally kill one person, while a second person has been killed in the same criminal episode.

In other words, the second body is a circumstance. And if I'm right that it's a circumstance, and not conduct, and the law doesn't permit attempting a circumstance, then you can't be guilty of attempting to kill one person while intentionally attempting an attendant circumstance (another person having been killed).

Again, I recognize this is conceptually difficult, but I want to stress the bottom line: if the second body in the crime of aggravated murder is a circumstance. If it's conduct, I lose. It really is that simple.

So what did the OSC say? Today, in one of the Turnidge opinions, it said this:

But a second aspect of the text, one that relates to the “nature of the element,” leads to the same initial conclusion. When the legislature makes an element an “attendant circumstance” to the commission of an offense, as contrasted with an aspect of the prohibited conduct, the element generally does not require proof of a mental state, unless, of course, the legislature indicates otherwise. Rainoldi, 351 Or at 494. For any particular element, to determine which it is—an attendant circumstance or an aspect of the prohibited conduct—this court often must examine the element in the context of the statutory offense. See, e.g., Rutley, 343 Or at 376-77 (for offense of knowing delivery of controlled substance within 1,000 feet of school, proximity to school is attendant circumstance, not something that defendant logically must know); State v. Miller, 309 Or 362, 366, 788 P2d 974 (1990)(for offense of driving intoxicated, intoxication is attendant circumstance that describes defendant’s intoxicated status; a defendant’s mental state has nothing to do with whether that status existed). Here, however, we do not have to read between the legislative lines. The legislature expressly identified the enumerated aggravating factors in ORS 163.095 as “circumstances,” ones that “accompany” the intentional murder or “under which” the murder is otherwise committed. That choice of words by the legislature cuts strongly against implying that any culpable mental state applies to that element, especially the mental state of “intentionally.” See ORS 161.085(7) (defining intent to apply to “result” or “conduct” described in statutory offense, not circumstance).

Our conclusion is bolstered by a closer examination of the particular aggravating circumstance on which counts 1 and 2 were based, especially in the context of the other aggravating circumstances enumerated in the statute. Under ORS 163.095(1)(d), intentional murder is aggravated murder when “[t]here was more than one murder victim in the same criminal episode.” The passive form of that sentence itself conveys, not action or conduct, but a circumstance attendant to the criminal episode—the circumstance that more than one person was murdered. And the past tense form of the verb “to be”—in was murdered—likewise suggests a state of affairs that existed at the conclusion of the criminal episode, not a state of mind that attached to the defendant’s conduct during the episode.

In other words, the second body is a circumstance, or attendant circumstance. You can't be convicted of a crime that hinges on attempting a circumstance. People have gotten longer sentences than they deserved because they were convicted of a crime that doesn't exist.