§ 1.6 Inchoate Crimes

• Library: Criminal Law in Oregon (OSBar) (2022 Ed.)

§ 1.6 INCHOATE CRIMES

Inchoate crimes are crimes in and of themselves that, while committed in the furtherance of another crime, do not require that the other crime come to fruition. They include attempt, ORS 161.405 (see § 1.6-1); solicitation, ORS 161.435 (see § 1.6-2); and conspiracy, ORS 161.450 (see § 1.6-3). Inchoate crimes can be thought of as precursor stages at which the contemplated criminal conduct is incomplete, but the defendant's intent is sufficiently clear that liability may nevertheless be imposed.

There are special "merger" rules for inchoate crimes. The successful completion of the crime is not a defense to a prosecution for an inchoate crime. ORS 161.485(1). However, a defendant may not be convicted of more than one inchoate crime designed to culminate in the commission of the "same" completed crime. ORS 161.485(2). Furthermore, a defendant may not be convicted simultaneously for both the inchoate crime and the successfully completed crime. ORS 161.485(3); see, e.g., State v. Nelson, 218 Or App 563, 180 P3d 133 (2008); State v. Dodson, 118 Or App 154, 846 P2d 1165 (1993). However, an indictment may permissibly contain multiple counts charging both a violation of the substantive statute and the inchoate crime. ORS 161.485(4).

CAVEAT

Although ORS 161.485(2) provides that a defendant may not be convicted of more than one inchoate crime for conduct designed to culminate in commission of exactly the same crime, a defendant may be convicted of more than one inchoate crime if the conduct is designed to culminate in two very similar crimes. In State v. Badillo, 260 Or App 218, 225, 317 P3d 315 (2013), for example, the defendant solicited two different people to kidnap his neighbor's infant. In a sense, each solicitation was aimed at the "same crime," that is, kidnapping the infant. But the court reasoned that the defendant's solicitation of two different people several days apart was designed to culminate in separate commissions of kidnapping: one by one person and one by another. Because the principals were different, the two solicitations were not designed to culminate in the commission of the same crime, so ORS 161.485(2) did not bar multiple convictions.

In all these inchoate crimes, venue may become an important issue. See chapter 7 (venue).

§ 1.6-1 Attempt

ORS 161.405 defines attempt as follows: "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."

Under that definition's terms, attempt has two elements, a culpable mental state and an act element: (1) the intent to engage in conduct constituting a "substantial step" towards committing the completed crime and (2) the "substantial step" itself. In addition, attempt requires an additional, tacit culpable mental state that is arguably distinct from the intent to engage in conduct constituting a substantial step, viz., (3) the intent to commit the completed crime. See State v....