State v. Everett ( 2014 )

670 June 26, 2014 No. 44
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Respondent on Review,
v.
RONALD ALAN EVERETT,
Petitioner on Review.
(CC CR0800419; CA A140675 (Control),
A144356; SC S060300)
En Banc
On review from the Court of Appeals.*
Argued and submitted March 14, 2013, at the University
of Oregon Law School, Eugene.
George W. Kelly, Eugene, argued the cause and filed the
brief for petitioner on review.
Douglas F. Zier, Senior Assistant Attorney General,
Salem, argued the cause and filed the brief for respondent
on review. With him on the brief were Ellen F. Rosenblum,
Attorney General, and Anna M. Joyce, Solicitor General.
LANDAU, J.
The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.
Defendant was charged with soliciting another person to commit aggravated
murder. The state’s evidence at trial showed that defendant asked the other per-
son to deliver certain information to a third person, which defendant thought
would cause that third person to commit aggravated murder. The trial court
denied defendant’s motion for a judgment of acquittal, a jury thereafter convicted
defendant as charged, and the Court of Appeals affirmed. Held: (1) The crime
of solicitation is complete upon the act of soliciting, regardless of what else does
or does not transpire; and (2) the trial court did not err in denying defendant’s
motion for judgment of acquittal.
The decision of the Court of Appeals and the judgment of the circuit court
are affirmed.
______________
*  Appeal from Clackamas County Circuit Court, Robert R. Selander, Judge.
249 Or App 139, 274 P3d 297 (2012).
Cite as 355 Or 670 (2014) 671
LANDAU, J.
In this criminal case, defendant was charged with
soliciting another person to commit aggravated murder.
ORS 161.435(1).1 The evidence at trial showed that defen-
dant asked the other person to deliver certain information
to a third person, which defendant thought would cause that
person to commit aggravated murder. The issue in this case
is whether that evidence is sufficient to establish that defen-
dant solicited the other person to commit aggravated mur-
der. The trial court held that the evidence was sufficient.
The Court of Appeals affirmed. State v. Everett, 249 Or App
139, 274 P3d 297 (2012). That court reasoned that, because
the evidence showed that defendant had solicited another
person to engage in conduct that would have constituted
aiding and abetting murder, that amounted to soliciting to
engage in conduct constituting murder itself. Id. at 144-45.
For the reasons that follow, we agree and affirm.
The relevant facts are not in dispute. Defendant
attempted to run over Clackamas County Deputy Sheriff
Moss with his car in an effort to abscond from a traffic stop.
While in jail awaiting trial on charges that arose out of
that incident, defendant met Piatt, a former member of the
“Outsiders Motorcycle Club,” a group involved in illicit activ-
ities. Defendant knew Piatt to be a club “enforcer”—one who
dealt with members who offended club rules.
Defendant asked Piatt to murder Moss, once Piatt
was released from jail, to prevent Moss from testifying at
defendant’s upcoming trial. Unbeknownst to defendant,
Piatt knew Moss from previous encounters and had worked
with her as an informant. Piatt reported to authorities that
defendant had asked him to kill Moss and submitted to an
interview. Police recorded Piatt’s interview on a DVD.
Defendant was tried and ultimately convicted of
attempted second-degree assault and other charges arising
1
ORS 161.435(1) provides:
“A person commits the crime of solicitation if with the intent of causing
another to engage in specific conduct constituting a crime punishable as a
felony or as a Class A misdemeanor or an attempt to commit such felony or
Class A misdemeanor the person commands or solicits such other person to
engage in that conduct.”
672 State v. Everett
from the initial Moss incident. At trial, the state played
Piatt’s DVD interview, and defendant realized that Piatt
had reported to the authorities that defendant had asked
him to kill Moss. At about the same time, defendant, while
still housed in jail, met another inmate, Van  Alstine.
Van Alstine was about to be released from jail. Over the
course of several days, defendant had a number of conversa-
tions with Van Alstine about the fact that Piatt was a mem-
ber of the Outsiders who had “ratt[ed] on him” to the police
and that Piatt’s interview with police had been recorded on
a DVD. Defendant asked Van Alstine, once he was released
from jail, to deliver to the Outsiders a copy of the Piatt inter-
view DVD and a copy of an indictment containing Piatt’s
name.2 Defendant told Van  Alstine to find the Outsiders’
“clubhouse,” on 82nd Avenue in Portland, and give the
information to a person with an Outsiders vest patch, indi-
cating that the person is a member of the club. Defendant
explained that the Outsiders, upon receiving the informa-
tion, would “take care of” and “get rid of” Piatt, that they
would “handle it,” so that “Piatt would not testify” against
him. In exchange for the anticipated delivery, defendant told
Van Alstine that he would give Van Alstine his car.
Van Alstine never obtained a copy of the DVD, and
he never delivered anything to the Outsiders on defendant’s
behalf. Instead, he reported his conversations with defen-
dant to the authorities. Defendant ultimately was charged
with crimes arising out of his conversations with both Piatt
and Van Alstine. As to the former, he was charged with solic-
iting Piatt to commit the aggravated murder of Moss. As
to the latter, he was charged with soliciting Van Alstine to
commit the aggravated murder and second-degree assault
of Piatt.3
2
It is unclear from the record whether defendant requested delivery of the
earlier indictment from the initial Moss incident or whether, at this point, he
anticipated (correctly) that a new indictment would be issued naming Piatt as a
witness, which he wanted delivered to the Outsiders. As noted in the text below,
not long after his conversations with Van  Alstine, an indictment issued that
named both Piatt and Van Alstine as grand jury witnesses.
3
The indictment alleged that defendant solicited Van  Alstine to commit
aggravated murder based on the fact that the victim, Piatt, was a witness in a
criminal proceeding. See ORS 163.095(2)(a)(E) (aggravated murder defined as,
among other things, murder in which the victim was a “witness in a criminal
Cite as 355 Or 670 (2014) 673
At trial, the state introduced evidence of the fore-
going facts. In addition, the state elicited from Piatt testi-
mony about the Outsiders and the fact that, if a member
were found to have cooperated with the police, the Outsiders
would “handle” the matter; that is, “anything from mak-
ing the person understand to killing them.” At the close of
the state’s case-in-chief, defendant moved for a judgment of
acquittal on the two counts of soliciting Van Alstine to com-
mit aggravated murder and second-degree assault, arguing
that the state had failed to present evidence that defendant
had solicited Van Alstine to engage in specific conduct con-
stituting a crime. The state responded that it had intro-
duced evidence that defendant had solicited Van  Alstine
to aid and abet the murder of Piatt and that such evidence
established solicitation to engage in specific conduct consti-
tuting a crime. The trial court agreed with the state and
denied defendant’s motion. The jury returned guilty verdicts
on both counts of soliciting Van Alstine and also returned
a guilty verdict on the charge of soliciting Piatt. The trial
court then entered a single judgment that convicted defen-
dant of solicitation to commit murder on two counts (Piatt
and Van Alstine) and that merged the count of solicitation
for second-degree assault with the count for solicitation to
commit murder (Van Alstine).
Defendant appealed, challenging the trial court’s
denial of his motion for a judgment of acquittal on the
charges of soliciting Van Alstine to commit aggravated
murder and second-degree assault.4 As we have noted, the
proceeding” and the murder was “related to the performance of the victim’s offi-
cial duties in the justice system”).
It bears noting that defendant was not charged with soliciting the Outsiders
to murder Piatt. Defendant suggests that that was because of an earlier Court of
Appeals decision, State v. Lee, 105 Or App 329, 333, 804 P2d 1208, rev den, 311
Or 427 (1991), which had held that solicitation required a completed communica-
tion and, therefore, a defendant whose letters outlining criminal plans never had
been delivered to the intended recipient was guilty of only attempted solicitation.
The question whether the state could have charged defendant with soliciting the
Outsiders to murder Piatt is not before us, and we express no opinion on that
issue.
4
Defendant also asserted on both appeal and review that the trial court had
erred in denying his motion to strike certain testimony of Piatt. The Court of
Appeals rejected that argument. We do so as well, without further discussion.
674 State v. Everett
Court of Appeals affirmed, Everett, 249 Or App 139, and we
allowed defendant’s petition for review.
On review, defendant focuses on the trial court’s
denial of his motion for judgment of acquittal on the charge
of soliciting Van Alstine to commit the aggravated murder
of Piatt. According to defendant, the Court of Appeals erred
in concluding that the state had produced sufficient evi-
dence to prove that he had solicited Van Alstine to aid and
abet the commission of aggravated murder. In his brief to
this court, defendant accepts the Court of Appeals’ premise
that proof of solicitation to aid and abet aggravated murder
would suffice; his argument is that there was no evidence
that he solicited Van Alstine to aid and abet that crime. In
defendant’s view,
“[d]elivery of the DVD would not have promoted or facil-
itated a murder; at most, it is a thing that would have
created animosity towards Piatt. Whether that animosity
would have caused anyone to murder him would have been
a decision made by the murderer, and the resulting crime
would have been solely the crime of the murderer.”
At best, defendant argues, the evidence showed that defen-
dant solicited Van Alstine to solicit someone in the Outsiders
to murder Piatt, which is not what the state charged.
The state responds that the trial court correctly denied
defendant’s motion for judgment of acquittal. According to
the state, if Van Alstine had delivered the materials to the
Outsiders and the Outsiders had murdered or assaulted
Piatt, then Van Alstine would have been criminally liable
for that crime as an accomplice because the delivery would
have constituted aiding and abetting the murder. See ORS
161.155(2)(b) (one who aids or abets another person who
commits a crime is criminally liable for that person’s crim-
inal conduct). By asking Van Alstine to engage in conduct
that—in the state’s view—would establish accomplice liabil-
ity, defendant’s conduct satisfied the statutory elements of
solicitation.
As defendant frames it in his brief to this court, the
issue before us is the sufficiency of the evidence to prove
that defendant solicited Van  Alstine to aid and abet the
Cite as 355 Or 670 (2014) 675
aggravated murder of Piatt. To “aid and abet” means to
advise, counsel, procure, or encourage another to commit a
crime. State v. Rosser, 162 Or 293, 344, 91 P2d 295 (1939).
To “abet” means “to countenance, assist, [or] give aid.” State
v. Start, 65 Or 178, 182, 132 P 512 (1913). Accordingly, evi-
dence showing that defendant solicited Van  Alstine to advise,
counsel, procure, encourage, or countenance, assist, or give
aid to someone else—in this case, the Outsiders—to commit
aggravated murder is sufficient to establish that defendant
solicited Van Alstine to commit aggravated murder.5
The record shows that defendant urged and entreated
Van  Alstine to deliver a DVD and a copy of an indict-
ment to the Outsiders. Defendant even promised his car
as payment for Van Alstine’s delivery of the information.
Defendant had explained to Van Alstine that the DVD and
the indictment contained information showing that Piatt,
one of the club’s members, had cooperated with the police
and that the Outsiders, upon receipt of that information,
would “handle,” “take care of,” and “get rid of” Piatt, so
that “Piatt would not testify” against him. The evidence
shows that, within the Outsiders’ milieu, such references
meant assaulting or killing Piatt. In short, defendant solic-
ited Van Alstine to assist or aid him in delivering infor-
mation to the Outsiders that would cause the Outsiders to
kill Piatt. If Van Alstine had delivered the information to
the Outsiders, and if the Outsiders had responded to that
information by killing Piatt, Van Alstine would have aided
and abetted the killing. See State v. Lewis, 352 Or 626, 641-
42, 290 P3d 288 (2012) (in determining whether state pre-
sented sufficient evidence to withstand motion for judgment
of acquittal, court views evidence in light most favorable to
state, resolves all conflicts in state’s favor, and grants state
benefit of all reasonable inferences that evidence supports).
5
It could be argued that soliciting another person to aid and abet another in
the commission of an offense does not establish the crime of solicitation, because
a person who aids and abets does not personally “engage in specific conduct con-
stituting a crime.” ORS 161.435(1). Such an argument would draw a distinction
between engaging in conduct that makes one criminally liable and conduct that
actually constitutes a crime. As we have noted, however, defendant’s argument
on review assumes that proof of solicitation to aid and abet aggravated murder
would be legally sufficient and asserts instead that the state failed to prove that,
in fact, he solicited Van Alstine to aid and abet the offense of aggravated murder.
Consequently, we limit our opinion to that issue.
676 State v. Everett
That Van Alstine never delivered the information
to the Outsiders is irrelevant. The crime of solicitation is
complete upon the act of soliciting, regardless of what else
does or does not transpire. As Professor LaFave explains,
“[f]or the crime of solicitation to be completed, it is only nec-
essary that the actor, with the intent that another person
commit a crime, have enticed, advised, incited, ordered, or
otherwise encouraged that person to commit a crime. The
crime solicited need not be committed.” Wayne R. LaFave,
2 Substantive Criminal Law § 11.1, 189 (2d ed 2003).6 That
is because the underlying rationale for the offense is that
the solicitation itself is considered sufficiently dangerous to
justify punishment, regardless of whether the solicitation is
successful. Pertinent in that regard is the commentary to the
Model Penal Code, on which the wording of ORS 161.435(1)
was based:
“Purposeful solicitation presents dangers calling for pre-
ventive intervention and is sufficiently indicative of a
disposition towards criminal activity to call for liability.
Moreover, the fortuity that the person solicited does not
agree to commit or attempt to commit the incited crime
6
Other jurisdictions are uniformly in accord with that basic principle.
See, e.g., State v. Johnson, 131 Ariz 299, 302 n 1, 640 P2d 861, 864 n 1 (1982)
(Solicitation “requires no agreement or action by the person solicited, and * * * is
complete when the solicitor, acting with the requisite intent, makes the command
or request.”); People v. Wilson, 36 Cal 4th 309, 328, 114 P3d 758, 772 (2005),
cert den, 547 US 1042 (2006) (Solicitation “is complete once the verbal request is
made with the requisite criminal intent; the harm is in asking, and it is punish-
able irrespective of the reaction of the person solicited.”); People v. Ruppenthal,
331 Ill App 3d 916, 920, 771 NE2d 1002, 1005, rev den, 201 Ill 2d 604 (2002),
cert den, 540 US 813 (2003) (“The offense of solicitation is complete when the
principal offense is commanded, encouraged or requested with the intent that
it be committed.”); State v. DePriest, 258 Kan 596, 604, 907 P2d 868, 874 (1995)
(“The crime is complete when the person communicates the solicitation to another
with the requisite mens rea. No act in furtherance of the target crime needs to
be performed by either person.”); People v. Crawford, 232 Mich App 608, 616, 591
NW2d 669, 673 (1998), rev den, 461 Mich 856 (1999) (“Solicitation is complete
when the solicitation is made.”); Shaffer v. State, 72 So 3d 1070, 1072 (Miss 2011)
(“The act of solicitation does not require that the thing solicited even exists.”);
State v. Lingmann, 320 P3d 1063, 1071 (Utah App 2014) (“[T]he criminal offense
of solicitation is complete the moment a defendant extends an offer.”)
We note that ORS 161.435(1) uses the wording “commands or solicits”; it does
not use LaFave’s wording (enticed, advised, incited, ordered, or otherwise encour-
aged). We cite LaFave for the proposition that the requested act need not have
occurred, but not as any particular construction of the statutory text of ORS
161.435(1).
Cite as 355 Or 670 (2014) 677
plainly should not relieve the solicitor of liability, when
otherwise he would be a conspirator or an accomplice.”
American Law Institute, Model Penal Code § 5.02(1), 82
(Tentative Draft No. 10 1960); see also Kimberly Kessler
Ferzan, Inchoate Crimes at the Prevention/Punishment
Divide, 48 San Diego L Rev 1273, 1275 (2011) (“inchoate
crimes * * * are primarily aimed at preventing a harm”).
The Oregon Criminal Law Revision Commission—
which drafted what is now ORS 161.435(1)—confirmed its
intention to reflect that policy in Oregon’s statutory defini-
tion of the crime of solicitation. Commentary to Criminal
Law Revision Commission Proposed Oregon Criminal Code,
Final Draft and Report § 57 (July 1970).7 Quoting from the
commentary to the 1960 Model Penal Code, the Commission
stated that “[p]urposeful solicitation presents dangers call-
ing for preventive intervention and is sufficiently indicative
of a disposition toward criminal activity to call for liability.”
Commentary § 57 at 56. The Commission added that “the
fortuity that the person solicited does not agree to commit
or attempt to commit the incited crime plainly should not
relieve the solicitor of liability.” Id. To make the point, the
Commission then explained by means of hypothetical that,
“where A solicits B to commit a crime specified by A (or
where A solicits B to solicit C to commit such crime), A’s act
constitutes the act of solicitation whether or not B (or C, as
the case may be) actually commits the crime or attempts to
commit the crime.”
Id. (quoting Commentary to the Model Penal Code). In other
words, the crime of solicitation is complete when the defen-
dant engages in the act of soliciting, regardless of whether
anything actually happens as a result of the solicitation.
For the same reason, the fact that there is no evi-
dence that the Outsiders, upon receipt of the DVD and the
indictment, actually would have killed Piatt is also beside
7
It is common to refer to the Commentary as “part of the legislative his-
tory of the [1971 Criminal] Code.” See, e.g., State v. Chakerian, 325 Or 370, 379,
938 P2d 756 (1997) (so stating). It is accurate to regard it as such in the sense
that it is a document that was submitted to the legislature during the enactment
process—albeit drafted by the Commission and not the legislature—and that the
legislature undoubtedly took into account when it considered the bill that became
the Oregon Criminal Code.
678 State v. Everett
the point. Whether or not the Outsiders would have killed
Piatt, the fact remains that the solicitation was complete at
the moment that defendant asked Van Alstine to deliver the
information for the purpose of causing the murder to occur.
We conclude that the trial court did not err in deny-
ing defendant’s motion for judgment of acquittal.
The decision of the Court of Appeals and judgment
of the circuit court are affirmed.