State v. Kimbrough

• Jurisdiction: Oregon
• Citation: State v. Kimbrough, 285 Or App 84, 395 P.3d 950 (Or. App. 2017)
• Docket Number: A157030
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Dustin KIMBROUGH, Defendant-Appellant.
• Court: Oregon Court of Appeals
• Decision Date: 26 April 2017

285 Or.App. 84

395 P.3d 950

STATE of Oregon, Plaintiff-Respondent,

v.Dustin KIMBROUGH, Defendant-Appellant.

A157030

Court of Appeals of Oregon.

Submitted February 9, 2016.

April 26, 2017

Ernest G. Lannett, Chief Defender, Criminal Appellate Section, and Meredith Allen, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Paul L. Smith, Deputy Solicitor General, and Peenesh H. Shah, Assistant Attorney General, filed the brief for respondent.

Before Sercombe, Presiding Judge, and Tookey, Judge, and DeHoog, Judge.

TOOKEY, J.

Defendant appeals a judgment convicting him of nine crimes, contending that the trial court erred in denying his motion for judgment of acquittal and entering convictions on four counts of attempted aggravated murder (Counts 1 through 4), three counts of attempted murder (Counts 5 through 7), and two counts of tampering with a witness (Counts 15 and 16).¹ Defendant argues that the trial court erred in denying his motion for judgment of acquittal on those counts, because defendant did not take a substantial step toward the commission of each of those crimes, and thus cannot be guilty of attempt. For the reasons that follow, we affirm.

In reviewing a trial court's denial of a defendant's motion for judgment of acquittal, "[w]e view the evidence in the light most favorable to the state to determine whether a rational trier of fact, making reasonable inferences, could have found the essential elements of the crime proved beyond a reasonable doubt." State v. Hall , 327 Or. 568, 570, 966 P.2d 208 (1998).

Defendant was incarcerated pending prosecution on a burglary charge. Defendant became cellmates with another inmate, Crowley. Defendant told Crowley that defendant "wanted his witnesses [to his burglary case] to not show up to trial," and that "he wanted people dead." Specifically, defendant mentioned his father-in-law, brother-in-law, and the Wasco County District Attorney. Defendant asked Crowley whether Crowley knew of anyone who had killed a person before. Crowley responded, "Yeah, I have. I mean, I've been to prison. I mean, I know people that have killed people." Defendant asked whether Crowley "could have somebody killed" and Crowley responded affirmatively. In fact, Crowley did not know of such a person. After hearing that Crowley "might know somebody that could do something," defendant began "writing stuff," including writing people's names. Within hours, Crowley sent several inmate request forms to jail staff, asking to speak to detectives because "someone could get hurt." Sergeant Birchfield visited Crowley, and Crowley told Birchfield what defendant had said.

When Crowley returned to his cell, defendant was writing a letter. According to Crowley, defendant "wrote out a couple letters, and he wanted to get it perfect. His detail about it had to be perfect." When defendant finished writing the letter, he gave it to Crowley to read, then put the letter in an envelope, placed it underneath his mattress, and asked Crowley if he was a cop. The next morning, defendant gave Crowley the envelope. Defendant believed that Crowley would "put [the envelope in Crowley's personal] property" and release it to someone outside the prison "so that a hit man could get it for [defendant] and take care of what he wanted [taken] care of."² The envelope contained a map of defendant's father-in-law's house and a letter stating:

"Dear stranger,

"I have a job for you. I need your help. There are three people I need taken care of. First one is my father-in-law. * * * Second is my brother-in-law. * * * The third is the D.A. (District Attorney). He is a piece of shit, and tears families apart. He is just as crooked as the cops in this town. * * * [My father-in-law] is leaving town October 15 for two [and a] half weeks. [Father-in-law]—Age 64—address * * *—health—bad—has had a [triple] bypass 15 years ago—takes handful of pills a day. (Dead) Net worth 150,000 to 200,000 dollars + life insurance policy. Not sure [of the] value.

"[Brother-in-law]—Age 36—address—halfway house in Oregon or Washington/Life insurance 100,000 to 150,000. He is a recovering meth addict. Liked doing his meth through a [syringe]. (Dead)

"D.A. (District Attorney)—[first and last name]—Age 40s—(Dead) [Oregon State Bar Number].

"Witnesses in my and my wife's Burg I case. I just want them threatened.

"1) [Witness's name, address, telephone number, and date of birth]

"2) [Witness's name, address, telephone number, and date of birth]

"There are three safes in the house. I want you to get the stuff out of the safe. You can hang on to the stuff in the safe until you are [paid]. * * *

"Stuff in safes : 1) guns 2) car titles/1968 Dodge Charger RT/value 150,000 easy 3) jewelry 4) life insurance 5) money.

"Final bill = 80,000 I will be paying you. [Father-in-law]—Natural death—heart attack. [Brother-in-law]—Drug OD. DA-Your choice.

"How I would like it to look."

(Underscoring in original.) After giving Crowley the envelope with the letter, defendant repeatedly asked Crowley, "Are they coming yet? Are they coming yet? Is he going to do it yet? Why ain't this done yet?"

Shortly thereafter, defendant and Crowley were placed in separate isolation cells across the hall from one another. Defendant and Crowley exchanged handwritten notes by using strings to fling cylinder-shaped papers into one another's cells. Defendant wrote, "Any idea when dude is coming man? I decided I'm not going to let DA tear me and my family up." Crowley responded, "I'll give you his name [when] I get it then you can go to visit and give him the hit that way [you're] face to face with the killer and he can talk to you and say what[']s up." Defendant wrote, "Ok that sounds good to me. Just got [to] let me know the day [and the] name so I can put the person on my visitors list."

In another exchange, Crowley asked defendant whether defendant still wanted the district attorney killed even though the district attorney has a family. Defendant responded, "Hell yeah, I can deal with it. Remember toes pointing up to the clouds." Crowley saved the notes that he received from defendant and gave them to jail staff.

Defendant was charged with four counts of attempted aggravated murder, three counts of attempted murder, four counts of solicitation of aggravated murder, three counts of solicitation of murder, and two counts of tampering with a witness. Defendant tried his case to the court. After the state rested, defendant moved for a judgment of acquittal as to the four counts of attempted aggravated murder, three counts of attempted murder, and two counts of tampering with a witness. Defendant argued that the state failed to present sufficient evidence that defendant engaged in conduct constituting a substantial step towards the commission of the charged crimes, as required by ORS 161.405. The trial court denied defendant's motion for judgment of acquittal and found defendant guilty of the attempted aggravated murder, attempted murder, and tampering with a witness counts. As to the solicitation counts, the trial court found defendant guilty of attempted solicitation.

On appeal, defendant contends that the trial court erred by denying his motion for judgment of acquittal on the counts of attempted aggravated murder, attempted murder, and tampering with a witness. Defendant renews his argument that he did not take a substantial step toward the commission of the crimes of aggravated murder, murder, and tampering with a witness. According to defendant, he "did not meet with a purported ‘hit man,’ he did not engage in detailed planning, and he did not pay money or arrange to pay money," and therefore his conduct was insufficient to satisfy the substantial step element of his attempt convictions and his convictions for tampering with a witness.³ Defendant contends that "[h]is desire to meet with someone to make a plan is not a plan in itself, much less a substantial step toward the commission of the objective." In response, the state argues that defendant's conduct was "more than enough to amount to a substantial step."

As noted above, our task is to determine "whether a rational trier of fact, making reasonable inferences, could have found the essential elements of the crime proved beyond a reasonable doubt." Hall , 327 Or. at 570, 966 P.2d 208. We begin with the text of ORS 161.405(1), which provides that "[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." In State v. Walters , 311 Or. 80, 85, 804 P.2d 1164, cert. den. , 501 U.S. 1209, 111 S.Ct. 2807, 115 L.Ed.2d 979 (1991), the Supreme Court observed that " ORS 161.405 codifies the Model Penal Code's ‘substantial step’ test for distinguishing acts of preparation from an attempt." (Footnote omitted.)

To constitute a substantial step, a "defendant's conduct must (1) advance the criminal purpose charged and (2) provide some verification of the existence of that purpose." Id. "Under that standard, an attempt * * * must be established by conduct that is corroborative of the actor's criminal purpose." State v. Carlton , 361 Or. 29, 45, 388 P.3d 1093 (2017). "[T]he same conduct may constitute a substantial step toward the commission of more than one charged crime, as long as that conduct strongly corroborates the actor's criminal purpose underlying each charged crime." Walters , 311 Or. at 86 n. 9, 804 P.2d 1164. There is no special rule regarding whether a solicitation is also an attempt: "[U]nder Oregon law, ‘[s]olicitation * * * qualifies as a "substantial step" if, under the facts, the defendant's actions exceed mere preparation, advance the criminal purpose charged, and provide some verification of the existence of that purpose.’ " State v. Badillo , 260 Or.App. 218, 223, 317 P.3d 315 (2013) (quoting State v. Johnson , 202 Or.App. 478, 489, 123 P.3d 304 (2005), rev. den. , 340 Or....