General Provisions

ORS 161.405
“Attempt” described


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.


An attempt is a:


Class A felony if the offense attempted is any degree of murder, aggravated murder or treason.


Class B felony if the offense attempted is a Class A felony.


Class C felony if the offense attempted is a Class B felony.


Class A misdemeanor if the offense attempted is a Class C felony or an unclassified felony.


Class B misdemeanor if the offense attempted is a Class A misdemeanor.


Class C misdemeanor if the offense attempted is a Class B misdemeanor.


Violation if the offense attempted is a Class C misdemeanor or an unclassified misdemeanor. [1971 c.743 §54; 2019 c.635 §15a]

Notes of Decisions

It is proper for testimony regarding prior acts of defendant to be admitted for the purpose of showing the specific intent required for a particular crime. State v. Flygare, 18 Or App 292, 525 P2d 181 (1974), Sup Ct review denied

One cannot "attempt" a crime involving an element of recklessness. State v. Smith, 21 Or App 270, 534 P2d 1180 (1975), Sup Ct review denied

Words of enticement with an offer of money are sufficient to constitute attempted statutory rape. State v. McJunkin, 27 Or App 401, 556 P2d 164 (1976)

Absent evidence that defendant was attempting to offer to engage in sexual conduct, defendant could not be guilty of attempt to commit prostitution within meaning of ORS 167.007, notwithstanding that she was walking in area of high vice activity and was seen talking to known prostitute. State v. Brown, 31 Or App 501, 570 P2d 1001 (1977)

State failed to corroborate confession of attempted arson with evidence showing that on day following attempted arson house in question burned; evidence of second day's burning would tend to prove defendant engaged in continuing course of conduct, but did not provide independent corroborative evidence of the alleged attempted arson of previous day. State v. Swearengin, 32 Or App 349, 573 P2d 362 (1978)

Allegation of "attempt to commit theft" was read as "defendant intentionally engaged in conduct which constituted substantial step toward commission of crime of intentionally depriving another of specified property," and thus complaint charged defendant with necessary mental state under ORS 164.045. State v. House, 37 Or App 131, 586 P2d 388 (1978)

Where victim incurred no physical injury within meaning of ORS 161.015, second degree assault conviction was modified to attempted second degree assault. State v. Rice, 48 Or App 115, 616 P2d 538 (1980), Sup Ct review denied

Where there was no evidence that victim suffered any impairment of his physical condition as result of defendant's attack or that pain inflicted was anything more than fleeting sensation, entry of judgment for Attempted Assault in Fourth Degree was appropriate. State v. Capwell, 52 Or App 43, 627 P2d 905 (1981)

In prosecution for attempted rape in the first degree under this section and ORS 163.375, evidence that defendant asked victim "Can I rape you?" and then backed up his car toward her after she walked away does not prove that defendant intended to have forceable sexual intercourse with victim. State v. Graham, 70 Or App 589, 689 P2d 1315 (1984), Sup Ct review denied

Phrase "intentionally attempt" in indictment for attempted murder and attempting to use dangerous weapon was sufficient to allege element of intent. State v. Bass/Landis, 90 Or App 350, 752 P2d 334 (1988)

Where state presented evidence that defendants had intentionally engaged in conduct constituting substantial step toward murder of more than one person, conviction for attempted aggravated murder is proper. State v. Quintero, 110 Or App 247, 823 P2d 981 (1991), Sup Ct review denied

Where jury could find from evidence, including defendant's conviction six years earlier of kidnapping, rape and sodomy and defendant's acts in trying to get victim to go with him and following her home, that he took substantial steps toward commission of kidnapping, rape and sodomy, there is sufficient evidence for court to enter conviction of attempted kidnapping, rape and sodomy. State v. Walters, 311 Or 80, 804 P2d 1164 (1991)

Requirement that "substantial step" advance criminal purpose can be satisfied by conduct that could also further noncriminal ends, while requirement that step be strongly corroborative of criminal purpose cannot. State v. Rinkin, 141 Or App 355, 917 P2d 1035 (1996)

Requirement that "substantial step" be highly corroborative of criminal purpose means that step must be consistent with charged crime but need not be particular to it. State v. Rinkin, 141 Or App 355, 917 P2d 1035 (1996)

Speech can, by itself, be sufficient "conduct" to constitute substantial step. State v. Jessen, 162 Or App 662, 986 P2d 684 (1999), Sup Ct review denied

Where defendant commits crime intentionally, and conduct constituting crime strongly corroborates defendant's purpose to commit additional crime, state may use conduct to prove substantial step toward commission of second crime. State v. Muzzy, 190 Or App 306, 79 P3d 324 (2003), Sup Ct review denied

Criminal solicitation of agent to engage in conduct constituting element of crime is substantial step toward commission of crime. State v. Johnson, 202 Or App 478, 123 P3d 304 (2005), Sup Ct review denied

Even though defendant did not meet with hit man or engage in detailed planning and did not pay, or arrange to pay, money, reasonable factfinder could conclude that defendant took substantial step toward commission of crimes of aggravated murder, murder and tampering with witness. State v. Kimbrough, 285 Or App 84, 395 P3d 950 (2017), Sup Ct review allowed

Completed Citations

State v. Moore, 4 Or App 548, 480 P2d 458 (1971), Sup Ct review denied

Law Review Citations

51 OLR 483, 568 (1972)

Chapter 161

Notes of Decisions

A juvenile court adjudication of whether or not a child committed acts which would be a criminal violation if committed by an adult must necessarily include an adjudication of all affirmative defenses that would be available to an adult being tried for the same criminal violation. State ex rel Juvenile Dept. v. L.J., 26 Or App 461, 552 P2d 1322 (1976)

Law Review Citations

2 EL 237 (1971); 51 OLR 427-637 (1972)

Chapter 161

Criminal Code


Notes of Decisions

Legislature's adoption of 1971 Criminal Code did not abolish doctrine of transferred intent. State v. Wesley, 254 Or App 697, 295 P3d 1147 (2013), Sup Ct review denied


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Jun. 26, 2021