ORS 161.405¹
“Attempt” described

(1) 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.

(2) An attempt is a:

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

(b) Class B felony if the offense attempted is a Class A felony.

(c) Class C felony if the offense attempted is a Class B felony.

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

(e) Class B misdemeanor if the offense attempted is a Class A misdemeanor.

(f) Class C misdemeanor if the offense attempted is a Class B misdemeanor.

(g) 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 (Prostitution), 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 (Theft in the second degree). State v. House, 37 Or App 131, 586 P2d 388 (1978)

Where victim incurred no physical injury within meaning of ORS 161.015 (General definitions), 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 (Rape in the first degree), 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

1 Legislative Counsel Committee, CHAPTER 161—General Provisions, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors161.­html (2019) (last ac­cessed May 16, 2020).
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2019, Chapter 161, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano161.­html (2019) (last ac­cessed May 16, 2020).
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent. Currency Information