Submitted on November 27, 2012.
Washington County Circuit Court C100530CR, D101103M Steven L. Price, Judge.
Peter Gartlan, Chief Defender, and Neil F. Byl, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and Greg Rios, Assistant Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Haselton, Chief Judge, and Sercombe, Judge.
ORTEGA, P. J.
Defendant appeals from a judgment of conviction that included, among others, one count of tampering with a witness, ORS 162.285, assigning error to the trial court's imposition of an upward departure sentence of 48 months' incarceration on that count. Defendant contends that the trial court erred in concluding that both the state and the witness were particularly vulnerable victims for purposes of applying the "vulnerable victim" aggravating factor under OAR 213-008-0002(1)(b)(B). Specifically, defendant argues that the state, not the witness, is the "victim" for purposes of the crime of tampering with a witness and that the legislature did not intend for the "vulnerable victim" aggravating factor to apply to the state. Defendant also contends that, even if the state could be considered a particularly vulnerable victim under that rule, there were not compelling reasons to depart from the presumptive sentence. The state responds that the witness is, in fact, the victim for purposes of the rule and that the state provided compelling reasons to depart. For the reasons that follow, we agree with the state and, accordingly, affirm.
Because defendant was convicted, we summarize the facts in the light most favorable to the state and provide only those facts that are relevant to the sentencing issue. State v. Enemesio, 233 Or.App. 156, 158, 225 P.3d 115, rev den, 348 Or 414 (2010). Defendant and the witness at issue, O'Connor, were in an intimate relationship in 2007 when defendant assaulted her. The police arrested him for the assault but, upon his release from jail, he returned to O'Connor's residence and assaulted her again. When she reported that assault to the police, defendant threatened to hurt her family unless she lied to the police about it, so she told police that she had fallen. Eventually, however, defendant went to prison for his crimes.
Upon his release from prison, defendant resumed his relationship with O'Connor, staying at her apartment from time to time. After several months, however, before leaving on a trip, O'Connor moved defendant's belongings onto the back porch and told defendant that she did not want him staying at her apartment anymore. When she returned from the trip to find that defendant had broken into her apartment, she called police. Defendant was again arrested and sent to jail.
Defendant called O'Connor three times from jail. In the first call, defendant pleaded with O'Connor to tell police that he had been living in the apartment with permission and told her to explain that she had reported him because she was having "delusions."
In the second call (about 10 minutes after the first), defendant asked O'Connor to tell police that she might have left the door open and might have authorized him to stay. He wanted them to "be together on this" in order to get him out of trouble. O'Connor became frustrated with defendant's attempts to persuade her to change her story and told defendant that she would not lie and that she was not a "crazy person." Defendant inquired about which psychiatric medications O'Connor was still taking and commented that she had stopped taking one of them the prior week. He asked O'Connor about which medications she was taking during a third call as well.
Defendant was charged with several crimes, including three counts of tampering with a witness. The jury found him guilty of two of those counts; verdicts on those counts were merged into a single conviction. At sentencing, the state sought an upward departure sentence based on, among others, the vulnerable victim aggravating factor in OAR 213-008-0002(1)(b)(B). According to the state, defendant exploited O'Connor's psychological frailty in order to attempt to induce her to testify falsely. The state pointed to evidence of his phone calls to her from jail, in which he alluded to his knowledge of her physical limitations, mental health issues, and medications. According to the state, defendant was "clearly in a position [to know] that [O'Connor] was of a * * * mental and physical, fragile, or limited state during this time period and [defendant] took advantage of that * * *." Defendant argued in response that the state, and not the witness, is the "primary victim" in a witness tampering case and that O'Connor was not a victim at all, much less a vulnerable victim under the rule.
The court concluded in a letter ruling that both the state and O'Connor were"victims" for purposes of the rule and that the state had proved the "vulnerable victim" aggravating factor beyond a reasonable doubt. As to O'Connor, the court reasoned:
"* * * O'Connor is * * * a victim because she suffered psychological and social harm as a result of [defendant's] attempts to pressure her. In both the jail telephone calls and her trial testimony, * * * O'Connor was obviously distraught over [defendant's] efforts to pressure and manipulate her. Based on years of manipulating and taking advantage of * * * O'Connor, [defendant] knew of her particular vulnerability. This vulnerability increased the threat * * * of harm to which * * * O'Connor was subject, both in the short term (being ...