STATE v. FORD (2022)

Defendant fired a gun at a vehicle with two occupants, neither of whom died. He was charged with, among other crimes, two counts of attempted aggravated murder under ORS 163.095(1)(d) (2015).¹ He unsuccessfully demurred to those counts of the indictment, arguing that the state had not charged a viable theory of 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 ORS 163.095(1)(d), and because a circumstance element, unlike a conduct element, cannot be “attempted.” At trial, defendant was acquitted of both counts of attempted aggravated murder but was convicted of other crimes.

On appeal, despite the acquittal, defendant nonetheless challenged the denial of his demurrer, arguing that that denial prejudiced him because it allowed for the admission of evidence relevant to the counts of attempted aggravated murder that may not have been admissible if trial had been limited to the other counts in the indictment. The Court of Appeals summarily affirmed based on its decision in State v. Kyger, 305 Or. App. 548, 471 P.3d 764 (2020). This court allowed review of both cases.

On review, defendant's argument that the state failed to allege a viable theory of attempted aggravated murder presents the same issue decided this day in State v. Kyger, 369 Or. 363, 506 P.3d 376 (2022). For the reasons stated in Kyger, defendant's argument is without merit. Because the circuit court did not err in denying the demurrer, it is unnecessary to address defendant's remaining arguments concerning prejudice.

The decision of the Court of Appeals and the judgment of the circuit court are affirmed.

FOOTNOTES

1.   The legislature amended ORS chapter 163 in 2019. Or. Laws 2019, ch. 635, § 1. In the amended 2019 statute, the “more than one murder victim” circumstance element was moved from the category of “aggravated murder” to that of “first-degree murder.” Id. § 3. The text of that element otherwise remained the same. Id. Because the underlying events in this case occurred in 2017, all citations in this opinion are to the 2015 version of the statutes in ORS chapter 163.

GARRETT, J.