State v. Allen

“The defendant’s substantial step must be toward the crime that he intends personally to commit, not a crime that will be committed by someone else.” State v. Kimbrough, 364 Or 66, 84, 431 P3d 76 (2018).

Defendant appealed his conviction of two counts of attempted aggravated murder and one count of conspiracy to commit aggravated murder. While in custody on a pending murder charge, Defendant solicited a fellow inmate to murder a witness in the pending murder case. On appeal, Defendant argued that the trial court erred in denying his motion for judgment of acquittal, asserting that the attempted aggravated murder and conspiracy charges would support the conviction, at best, a solicitation, but not an attempt or a conspiracy to commit murder.  The State conceded the error. “The defendant’s substantial step must be toward the crime that he intends personally to commit, not a crime that will be committed by someone else.” State v. Kimbrough, 364 Or 66, 84, 431 P3d 76 (2018). The Court found that the trial court erred in denying Defendant’s motion for judgment of acquittal on the aggravated murder charges. The Court held that although Defendant took a step towards soliciting another to commit murder, there was no evidence that Defendant intended to personally engage in conduct that would constitute any element of the crime of aggravated murder. Convictions for attempted aggravated murder reversed; conviction for conspiracy to commit aggravated murder reversed and remanded.