ORS 163.095¹
"Aggravated murder" defined

As used in ORS 163.105 (Sentencing options for aggravated murder) and this section, "aggravated murder" means murder as defined in ORS 163.115 (Murder) which is committed under, or accompanied by, any of the following circumstances:

(1)(a) The defendant committed the murder pursuant to an agreement that the defendant receive money or other thing of value for committing the murder.

(b) The defendant solicited another to commit the murder and paid or agreed to pay the person money or other thing of value for committing the murder.

(c) The defendant committed murder after having been convicted previously in any jurisdiction of any homicide, the elements of which constitute the crime of murder as defined in ORS 163.115 (Murder) or manslaughter in the first degree as defined in ORS 163.118 (Manslaughter in the first degree).

(d) There was more than one murder victim in the same criminal episode as defined in ORS 131.505 (Definitions for ORS 131.505 to 131.525).

(e) The homicide occurred in the course of or as a result of intentional maiming or torture of the victim.

(f) The victim of the intentional homicide was a person under the age of 14 years.

(2)(a) The victim was one of the following and the murder was related to the performance of the victim’s official duties in the justice system:

(A) A police officer as defined in ORS 181.610 (Definitions for ORS 181.610 to 181.712);

(B) A correctional, parole and probation officer or other person charged with the duty of custody, control or supervision of convicted persons;

(C) A member of the Oregon State Police;

(D) A judicial officer as defined in ORS 1.210 (Judicial officer defined);

(E) A juror or witness in a criminal proceeding;

(F) An employee or officer of a court of justice; or

(G) A member of the State Board of Parole and Post-Prison Supervision.

(b) The defendant was confined in a state, county or municipal penal or correctional facility or was otherwise in custody when the murder occurred.

(c) The defendant committed murder by means of an explosive as defined in ORS 164.055 (Theft in the first degree).

(d) Notwithstanding ORS 163.115 (Murder) (1)(b), the defendant personally and intentionally committed the homicide under the circumstances set forth in ORS 163.115 (Murder) (1)(b).

(e) The murder was committed in an effort to conceal the commission of a crime, or to conceal the identity of the perpetrator of a crime.

(f) The murder was committed after the defendant had escaped from a state, county or municipal penal or correctional facility and before the defendant had been returned to the custody of the facility. [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]

Notes of Decisions

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 (Murder) 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 (Murder) 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 (Murder); 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 (Sentencing options for aggravated murder) 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 (Definitions with respect to culpability) 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)

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)

Law Review Cita­tions

51 OLR 459-493 (1972)

Chapter 163

Law Review Cita­tions

51 OLR 427-637 (1972)

1 Legislative Counsel Committee, CHAPTER 163—Offenses Against Persons, https://­www.­oregonlegislature.­gov/­bills_laws/­Archive/­2007ors163.­pdf (2007) (last ac­cessed Feb. 12, 2009).
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2007, Chapter 163, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­163ano.­htm (2007) (last ac­cessed Feb. 12, 2009).
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