State v. Kyger

For purposes of ORS 163.095(1)(d), “[t]he 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.” State v. Kyger, 369 Or 363 (2022).

 Defendant appealed a conviction for two counts of attempted aggravated murder under ORS 163.095(1)(d). On appeal, Defendant argued that for purposes of ORS 163.095(1)(d) the death of a victim in a necessary element to satisfy the burden created by the statute. Defendant argued that the State’s theory was not viable for attempted aggravated murder because the death of “more than one murder victim” in the same criminal episode is a circumstance element of the crime defined in the statute. Defendant further argued that a circumstance element, unlike a conduct element, cannot be “attempted.” For purposes of ORS 163.095(1)(d), “[t]he 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.” State v. Kyger, 369 Or 363 (2022). However, after interpreting the statute, the Court determined that, “[t]he 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.” Affirmed.