State v. Moses

• Decision Date: 09 February 2000
• Citation: 165 Or. App. 317,997 P.2d 251
• Parties: STATE of Oregon, Respondent, v. Michael Donald MOSES, Appellant.
• Court: Oregon Court of Appeals

997 P.2d 251

165 Or. App. 317

STATE of Oregon, Respondent, v. Michael Donald MOSES, Appellant.

(CR9700135; CA A98793)

Court of Appeals of Oregon.

Argued and Submitted June 22, 1999.

Decided February 9, 2000.

Peter Gartlan, Salem, argued the cause for appellant. With him on the brief were David E. Groom, Public Defender, and Diane L. Alessi, Deputy Public Defender.

Jennifer Scott Lloyd, Portland, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before EDMONDS, Presiding Judge, and DEITS, Chief Judge,¹ and ARMSTRONG, Judge.

EDMONDS, P.J.

Defendant appeals from a judgment of conviction for one count of attempted aggravated murder, ORS 163.095 (1995) and ORS 161.405, one count of first-degree assault, ORS 163.185, and one count of unlawful use of a weapon, ORS 166.220. He assigns as error: (1) the trial court's failure to give jury instructions concerning lesser-included offenses of the crimes of attempted aggravated murder and first-degree assault; (2) the trial court's instructions to the jury concerning the elements of attempted aggravated murder; and (3) the trial court's imposition of Measure 11 sentences. There is no assignment of error pertaining to the conviction for unlawful use of a weapon. We reverse, in part.

We review the refusal to instruct the jury on a lesser[-]included crime for errors of law." State v. Merideth, 149 Or.App. 164, 166, 942 P.2d 803,rev. den. 326 Or. 58, 944 P.2d 948 (1997). In doing so, "[w]e review the evidence in the light most favorable to the establishment of facts that would require those instructions." State v. Boyce, 120 Or.App. 299, 302, 852 P.2d 276 (1993). Defendant's convictions stem from a shooting incident during which defendant fired several gunshots from a car in which he was riding in the direction of a van in which there were six persons. Apparently, hostilities began developing while the occupants of the car and the van were inside a bowling alley. After the occupants of both vehicles left the bowling alley, a fight occurred in the parking lot. After the fight, the occupants left in their respective vehicles.

The shooting occurred approximately 18 blocks from the parking lot. According to defendant, the van stopped, and the driver got out and approached the car. Defendant testified that he "panicked" and fired several shots in the "general direction ahead of [them]," but that it was not his intent to kill anyone or to cause serious physical injury. According to the driver, he turned and jumped into the van after approaching defendant and observing that defendant had a gun. As the driver jumped into the van, a bullet went through the wing window of the driver's door before he could close the door. As the driver drove the van away, he heard four more shots. A female passenger in the van received her injuries during the final series of four shots.

Christopher Wright, the detective who investigated the incident, testified that defendant told him: "I took the gun in my right hand, I'm left-handed. I just pointed it and started shooting." Additionally, Wright testified that "[defendant] said that [the occupants of the car] didn't know if anyone else was getting out of the van" and that defendant had indicated that he thought that the van was full of the people who had just beaten them up. Finally, in response to Wright's question as to why he shot at the van, defendant said that he "guessed" that he did it because he was intoxicated and "beat up."

As a result of the incident, defendant was charged with six counts of attempted aggravated murder. Each of the six persons in the van was named as a primary victim in a separate count. Defendant was also charged with one count of first-degree assault against the female passenger in the back of the van, who was the only occupant who was shot. Finally, defendant was charged with six counts of unlawful use of a weapon. The trial court submitted to the jury the six counts of attempted aggravated murder, the count of first-degree assault and the count of unlawful use of a weapon that referred to the injured female passenger in the van.²

In defendant's first assignment of error, he asserts that the trial court erred by failing to instruct the jury as to the elements of recklessly endangering another person, ORS 163.195, which he contends is a lesser-included offense of the crime of attempted aggravated murder. The state counters that recklessly endangering another person is not a lesser-included offense of attempted aggravated murder based on the statutory elements or as alleged in the indictment.

ORS 136.465 provides

"In all cases, the defendant may be found guilty of any crime the commission of which is necessarily included in that with which the defendant is charged in the accusatory instrument or of an attempt to commit such crime."

In State v. Wille, 317 Or. 487, 495 n. 7, 858 P.2d 128 (1993), the Supreme Court stated that "[a] lesser-included offense is one that is included either in the statutory framework defining the greater and lesser offenses or in the accusatory instrument itself." The court also stated that "[g]enerally, a jury may find a defendant guilty of any lesser-included offense[ ]" but that "a defendant is not entitled to a jury instruction on a lesser-included offense unless there is evidence from which a jury" rationally could find the defendant guilty of a lesser-included offense and not guilty of the greater offense for which the defendant is charged. Id. at 494, 858 P.2d 128.

Attempted aggravated murder is defined by ORS 161.405 and ORS 163.095 (1995). ORS 161.405 provides, in part:

"(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."

ORS 163.095 (1995) provides, in part:

"As used in ORS 163.105 and this section, `aggravated murder' means murder as defined in ORS 163.115 [³] which is committed under, or accompanied by, any of the following circumstances:

"(1) * * *

"* * * * *

"(d) There was more than one murder victim in the same criminal episode as defined in ORS 131.505."

Recklessly endangering another person is defined by ORS 163.195. That statute provides, in part:

"(1) A person commits the crime of recklessly endangering another person if the person recklessly engages in conduct which creates a substantial risk of serious physical injury to another person."

Because a person can "intentionally engage[ ] in conduct which constitutes a substantial step" toward the commission of an intentional murder of more than one person, ORS 161.405, without engaging "in conduct which creates a substantial risk of serious physical injury," ORS 163.195, the elements of recklessly endangering another person are not subsumed within the elements of attempted aggravated murder. However, that does not end our inquiry. We must also determine whether the offense of recklessly endangering another person is included in the indictment.

The indictment concerning the count of attempted aggravated murder for which defendant was convicted charges:

"The said defendant on or about the 18th day of January, 1997, in the County of Clackamas, State of Oregon, did unlawfully and intentionally attempt to cause the death of another human being, to-wit: Jacob Jamieson by firing shots into a van occupied by said victim, said defendant having unlawfully and intentionally attempted, in the course of the same criminal episode attempt to cause the death of an additional human being, to wit: Fritz Hoffman, III, by firing shots into a van occupied by said victim, said act of defendant being contrary to the statutes in such cases made and provided, and against the peace and dignity of the State of Oregon.

"The state further alleges that during the commission of this felony, the defendant used a firearm, to-wit: a gun."

According to the indictment, the substantial step that defendant took in attempting the aggravated murder of the driver of the van was the firing of shots at him. The alleged conduct could have been prompted by an intent to cause the death of the driver, or it could describe a reckless act by defendant that created a substantial risk of serious physical injury to the driver but did not injure him. In State v. Smith, 21 Or.App. 270, 534 P.2d 1180,rev. den. (1975), the defendant was convicted of attempted murder after shooting in the general direction of a police officer, who was not injured. On appeal, the defendant argued that the trial court erred when it instructed the jury that he could be found guilty of attempted murder if he "`did intentionally attempt to cause the death of [the officer] or that [he] did intentionally engage in conduct which recklessly placed the life of [the officer] in danger under circumstances manifesting an extreme indifference to the value of human life.'" Id. at 273, 534 P.2d 1180 (emphasis in original). After examining the statutory scheme and the Criminal Law Revision Commission's Commentary to ORS 163.195, the recklessly endangering statute, we observed "that the legislative scheme, as a whole, is complete and consistent with the approach that `one cannot attempt to act recklessly.'" Smith, 21 Or.App. at 279,534 P.2d 1180. We concluded that there is no crime of "attempted reckless murder" under Oregon law and that the only crime based on the mental state of recklessness that could have occurred, based on the fact that the officer was not injured, was the crime of recklessly endangering another person under ORS 163.195. Because we could not tell from the verdict whether the jury found that the defendant fired in the officer's direction with the intent to kill him or whether it found that the defendant acted recklessly when he fired, we reversed the attempted murder conviction.

This case presents a variation of what occurred in Smith. The state alleges that defendant acted...