Offenses Against Persons

ORS 163.095
“Aggravated murder” defined


As used in ORS 163.105 (Sentencing options for aggravated murder) and this section, “aggravated murder” means:

(1)

Criminal homicide of two or more persons that is premeditated and committed intentionally and with the intent to:

(a)

Intimidate, injure or coerce a civilian population;

(b)

Influence the policy of a government by intimidation or coercion; or

(c)

Affect the conduct of a government through destruction of property, murder, kidnapping or aircraft piracy; or

(2)

Murder in the second degree, as defined in ORS 163.115 (Murder in the second degree), that is:

(a)

(A) Committed while the defendant was confined in a state, county or municipal penal or correctional facility or was otherwise in custody; and

(B)

Committed after the defendant was previously convicted in any jurisdiction of any homicide, the elements of which constitute the crime of aggravated murder under this section or murder in the first degree under ORS 163.107 (Murder in the first degree);

(b)

Premeditated and committed intentionally against a person under 14 years of age;

(c)

Premeditated, committed intentionally against a police officer as defined in ORS 801.395 (“Police officer”), and related to the performance of the victim’s official duties; or

(d)

Premeditated, committed intentionally against a correctional, parole and probation officer or other person charged with the duty of custody, control or supervision of convicted persons, and related to the performance of the victim’s official duties. [1977 c.370 §1; 1981 c.873 §1; 1991 c.742 §13; 1991 c.837 §12; 1993 c.185 §20; 1993 c.623 §2; 1997 c.850 §1; 2005 c.264 §17; 2012 c.54 §26; 2015 c.614 §149; 2019 c.635 §1]
Note: Section 30, chapter 635, Oregon Laws 2019, provides:
Sec. 30. Section 3 of this 2019 Act [163.107 (Murder in the first degree)] and the amendments to ORS 40.355 (Rule 609. Impeachment by evidence of conviction of crime), 133.705 (Definitions for ORS 133.705 to 133.717), 136.450 (Number of jurors required for verdict), 137.635 (Determinate sentences required for certain felony convictions), 137.700 (Offenses requiring imposition of mandatory minimum sentences), 137.707 (Mandatory minimum sentences for certain juvenile offenders waived to adult court), 144.079 (Determination of total term of certain consecutive sentences of imprisonment), 144.085 (Active parole and post-prison supervision), 144.110 (Restriction on parole of persons sentenced to minimum terms), 161.005 (Short title), 161.405 (“Attempt” described), 161.535 (Classification of felonies), 163.095 (“Aggravated murder” defined), 163.098, 163.103, 163.115 (Murder in the second degree), 163.135 (Extreme emotional disturbance as affirmative defense to murder in the second degree), 163.150 (Sentencing for aggravated murder), 163.707 (Forfeiture of motor vehicle used in drive-by shooting), 342.143 (Issuance of licenses and registrations), 419A.260 (Expunction), 419C.349 (Grounds for waiving youth to adult court), 419C.352 (Grounds for waiving youth under 15 years of age), 419C.501 (Duration of disposition), 421.121 (Reduction in term of incarceration), 443.004 (Criminal records check required for employees and volunteers providing direct care) and 671.610 (Grounds for sanctions against licensee) by sections 1 and 4 to 29 of this 2019 Act apply to crimes committed before, on or after the effective date of this 2019 Act [September 29, 2019] that are the subject of sentencing proceedings occurring on or after the effective date of this 2019 Act. [2019 c.635 §30]

Notes of Decisions

In General

Charging a person under multiple victim provision of this section does not require that there be a prior commission of murder. State v. Norris, 40 Or App 505, 595 P2d 1261 (1979), Sup Ct review denied

Where defendant was charged with aggravated felony murder, defense of mental disease or defect was only relevant to underlying felony, rape or sodomy. State v. Larsen, 44 Or App 643, 606 P2d 1159 (1980), Sup Ct review denied

Indictment which charged that defendant, in course of committing robbery, "did cause the death of another human being by shooting him" was sufficient to charge aggravated murder. State v. Cohen, 289 Or 525, 614 P2d 1156 (1980)

Fact that state may choose to prosecute defendant accused of personally committing homicide under this section or ORS 163.115 does not by itself violate Article I, Section 20 of Oregon Constitution or Fourteenth Amendment to United States Constitution. State v. Reynolds, 289 Or 533, 614 P2d 1158 (1980)

Where defendant was indicted for aggravated murder under this section, conviction on stipulated facts for intentional murder under ORS 163.115 did not violate defendant's due process rights. Riley v. Cupp, 56 Or App 467, 642 P2d 333 (1982), Sup Ct review denied

Unanimous verdict on aggravated murder conviction is not invalidated by less than unanimous verdict on underlying felony because this section does not require completion of underlying felony and because the two deliberations involve separate and independent questions. State v. Watkins, 67 Or App 657, 679 P2d 882 (1984), Sup Ct review denied

Under this section, term "witness in a criminal proceeding" includes one who has not yet been subpoenaed, but whose testimony is desired in criminal proceeding or grand jury investigation. State v. Maney, 297 Or 620, 688 P2d 63 (1984)

Term "torture" is not unconstitutionally vague. State v. Cornell/Pinnell, 304 Or 27, 741 P2d 501 (1987)

Constitutional challenge on basis that it imposed more severe penalty for murder committed by individual on escape status than penalty imposed on individual in process of escaping and that penalty for murder committed by escapee is not proportionate to offense was improper as section does not impose any penalty but merely defines crime. State v. McDonnel, 84 Or App 278, 733 P2d 935 (1987), Sup Ct review denied

When multiple murders occur in course of same criminal episode there may be as many counts of aggravated murder as there are victims. State v. Fuller, 90 Or App 158, 750 P2d 1209 (1988)

Instruction to jury must provide for jury to agree on factual circumstance that made homicide aggravated murder as distinct from murder. State v. Boots, 308 Or 371, 780 P2d 725 (1989); State v. Lotches, 331 Or 455, 17 P3d 1045 (2000)

Requirement of this section that murder be committed "in an effort to conceal the commission of a crime" is not impermissibly vague because legislature failed to define "conceal" or "effort." State v. Farrar, 309 Or 132, 786 P2d 161 (1990)

Because statutory requirements for simple felony murder and aggravated murder by concealment are distinguishable, prosecutorial charging discretion is adequately limited. State v. Farrar, 309 Or 132, 786 P2d 161 (1990)

As used in this section, "personally" has its common meaning and defendant committed homicide when he restrained victim to allow confederate to deliver death blow, evidence established that defendant actively, personally and intentionally committed murder of victim. State v. Nefstad, 309 Or 523, 789 P2d 1326 (1990)

Where prosecutor's argument implied nothing about victim's personal characteristics or reputation, or about effect of death on his family or society but focused entirely on defendant's state of mind as evidenced by nature and brutality of murder, prosecutor's suggestion to jurors that they compare photographs of victim alive and after death was proper argument on essential element of state's case. State v. Nefstad, 309 Or 523, 789 P2d 1326 (1990)

Indictment for aggravated murder need not specify elements of underlying felony. State v. Montez, 309 Or 564, 789 P2d 1352 (1990); State v. Rogers, 313 Or 356, 836 P2d 1308 (1992); State v. Bockorny, 125 Or App 479, 866 P2d 1230 (1993), on reconsideration126 Or App 504, 869 P2d 349 (1994), Sup Ct review denied

Trial court's error in instructing jury that jurors need not agree unanimously on factual circumstances that made homicide aggravated murder did not require reversal where all jurors agreed that defendant committed murder in course and furtherance of robbery in first degree. State v. Rose, 311 Or 274, 810 P2d 839 (1991)

Trial court may not enter conviction for both aggravated felony murder and underlying felony. State v. Wille, 115 Or App 47, 839 P2d 712 (1992), aff'd on other grounds, 317 Or 487, 858 P2d 128 (1993)

Legislature did not include language specifically providing for affirmative defense of extreme emotional disturbance under this statute, which is provided for under ORS 163.115; therefore extreme emotional disturbance is not a defense to aggravated murder. State v. Hessel, 117 Or App 113, 844 P2d 209 (1992), Sup Ct review denied; State v. Wille, 317 Or 487, 858 P2d 128 (1993)

Phrase "state . . . correctional facility" refers to facility in any state, not just Oregon. State v. Isom, 313 Or 391, 837 P2d 491 (1992)

Provision of this section concerning escape from penal facilities is not unconstitutionally vague. State v. Isom, 313 Or 391, 837 P2d 491 (1992)

Combination of statutory definition of aggravated murder while an escapee and sentencing provisions of ORS 163.105 did not create unconstitutionally disproportionate sentence. State v. Isom, 313 Or 391, 837 P2d 491 (1992)

Crime of intentional murder is "necessarily included" in crime of aggravated murder. State v. Isom, 313 Or 391, 837 P2d 491 (1992)

Terms "confined" and "otherwise in custody" are not unconstitutionally vague. State v. Langley, 314 Or 247, 839 P2d 692 (1992), on reconsideration 318 Or 28, 861 P2d 1012 (1993)

Evidence of intentional asphyxiation alone is not evidence of torture. State v. Langley, 314 Or 247, 839 P2d 692 (1992), on reconsideration 318 Or 28, 861 P2d 1012 (1993)

Where jury could infer either that defendant applied binding around face with intent to cause intense painful muscle cramping or defendant purposefully kept victim alive for lengthy period of time with intent that victim suffer unrelieved and escalating pain, jury could find beyond reasonable doubt that defendant intended to inflict intense physical pain before asphyxiating victim. State v. Langley, 314 Or 247, 839 P2d 692 (1992), on reconsideration 318 Or 28, 861 P2d 1012 (1993)

Defendant on pass away from Oregon State Hospital could not be convicted on charges that defendant committed murder while "confined" in Oregon correctional facility. State v. Langley, 314 Or 247, 839 P2d 692 (1992), on reconsideration 318 Or 28, 861 P2d 1012 (1993)

Where jury may not have been unanimous on theory supporting aggravated murder conviction, retrial only on theory issue was proper. State v. Boots, 315 Or 572, 848 P2d 76 (1993)

Where referring to intentional commission of felony murder "intentionally" has same meaning as under ORS 161.085 defining term for purposes of culpability. State v. Wille, 317 Or 487, 858 P2d 128 (1993)

Witness in juvenile delinquency proceeding is not witness in "criminal proceeding." State v. Thompson, 166 Or App 370, 998 P2d 762 (2000), Sup Ct review denied

Where there are multiple victims of single criminal episode of attempted aggravated murder, there are as many counts of attempted aggravated murder as there are victims. State v. Goltz, 169 Or App 619, 10 P3d 955 (2000), Sup Ct review denied

Violation of multiple listed predicate offenses against single victim provides grounds for single conviction for multiple counts of aggravated murder but does not create grounds for multiple aggravated murder convictions. State v. Barrett, 331 Or 27, 10 P3d 901 (2000)

State is not required to allege in indictment that murder was committed deliberately. State v. Terry, 333 Or 163, 37 P3d 157 (2001); State v. Oatney, 335 Or 276, 66 P3d 475 (2003)

Application of intentional mental state required for act of maiming or torturing victim in pari materia with reckless mental state required for murder by abuse does not create unconstitutional vagueness regarding mental state required to convict for aggravated murder by abuse resulting from or in course of maiming or torturing victim. State v. Compton, 333 Or 274, 39 P3d 833 (2002)

Where defendant is charged with committing aggravated murder to conceal commission of crime or conceal identity of perpetrator, and more than one alleged crime or perpetrator is involved, conviction requires that jury agree unanimously on theory regarding predicate crime or identity of perpetrator. State v. Hale, 335 Or 612, 75 P3d 448 (2003)

Finding that homicide occurred during course of intentional maiming of victim requires that defendant have separate intent to maim victim apart from intent to cause death. State v. Garner, 194 Or App 268, 94 P3d 163 (2004), Sup Ct review denied

Finding that defendant committed aggravated murder personally and intentionally does not require that murder conviction based on same event be for intentional murder. State v. Ventris, 337 Or 283, 96 P3d 815 (2004)

Where jury could not reach verdict on aggravated murder, but acquitted defendant of lesser included offense of intentional murder, federal double jeopardy protection prevented retrial for aggravated murder. Wilson v. Czerniak, 355 F3d 1151 (9th Cir. 2004)

Conviction for murder under any theory merges with conviction for aggravated murder of same victim under any theory. State v. Walraven, 214 Or App 645, 167 P3d 1003 (2007), Sup Ct review denied

Person who "personally and intentionally" commits felony murder can be convicted of aggravated murder. State v. Dasa, 234 Or App 219, 227 P3d 228 (2010), Sup Ct review denied

Evidence presented in support of attempted aggravated murder is legally sufficient if, viewed in light most favorable to prosecution, it can support finding that defendant acted with conscious objective to cause death of victim. Boyer v. Belleque, 659 F3d 957 (9th Cir. 2011)

Defendant, who killed first victim then killed second victim 12 hours later in order to take over victims' drug business, committed murders in "same criminal episode." Defendant's acts were "continuous and uninterrupted" necessary components to achieving defendant's overarching criminal objective. State v. Tooley, 265 Or App 30, 333 P3d 348 (2014), Sup Ct review denied

Under this section, state is required to prove only that defendant, charged with aggravated murder, intentionally caused death of each victim and that other victim was murdered as part of same criminal episode. State v. Turnidge, (S059155), 359 Or 364, 374 P3d 853 (2016)

Pre 2005 Amendments

To "personally" commit crime of homicide, defendant must directly engage in physical act of homicide. State v. Link, 346 Or 187, 208 P3d 936 (2009)

Atty. Gen. Opinions

Repeal by implication by Ballot Measure 8 providing death penalty under certain circumstances, (1978) Vol 39, p 419

Law Review Citations

17 WLR 649 (1981); 18 WLR 180 (1982)

§§ 163.005 to 163.145

Law Review Citations

51 OLR 459-493 (1972)

Chapter 163

Law Review Citations

51 OLR 427-637 (1972)


Source

Last accessed
Jun. 26, 2021