Argued and Submitted September 15, 2014.
On review from the Court of Appeals.[*] .CC C100530CR, D101103M; CA A146498 (Control), A146499.
">State v. Lykins, 259 Or.App. 475, 314
P.3d 704, (2013)
Neil F. Byl, Deputy Public Defender, Salem, argued the cause and filed the brief for petitioner on review. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Jennifer S. Lloyd, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
[357 Or. 147] BALDWIN, J.
In this criminal case, defendant was convicted of the crime of tampering with a witness, ORS 162.285, after he tried to persuade his girlfriend to testify falsely in his impending trial on charges of criminal trespass and criminal negligence. At defendant's sentencing hearing following the tampering conviction, the state asked the trial court to impose an upward departure sentence, based on the fact that defendant's girlfriend was a " vulnerable victim" under the administrative rule governing departure sentences, OAR 213-008-0002(1)(b)(B). Defendant objected on the ground that the state, not the witness, is the victim of the crime of tampering with a witness and, therefore, that the departure factor did not apply. The trial court disagreed with defendant and imposed a 48-month durational departure sentence on the tampering conviction. On appeal, the Court of Appeals affirmed. We allowed review and now reverse the decision of the Court of Appeals and vacate the sentence imposed by the circuit court on defendant's tampering conviction.
Because the jury found defendant guilty of the charged offenses, we state the facts in the light most favorable to the state. State v. McClure, 355 Or. 704, 705, 335 P.3d 1260 (2014). Defendant and his girlfriend, O'Connor, had a tumultuous relationship for years before the incidents leading to this case. Defendant had assaulted O'Connor twice in 2007, was convicted of various crimes arising out of those assaults, and was sentenced to a term of imprisonment. As a condition of his release, defendant was ordered not to have contact with O'Connor. In late 2009, defendant was arrested twice for violating the no-contact order, convicted of postprison supervision violations, and incarcerated again. Defendant was released from prison in February 2010 and began staying in O'Connor's apartment, in violation of the no-contact order. Soon, however, O'Connor told defendant that she would not permit him to stay with her any longer. When O'Connor and defendant last left O'Connor's apartment together, O'Connor placed defendant's belongings on the porch outside a door to her apartment. Defendant did not have a key, and O'Connor did not intend for defendant to enter the apartment in her absence. When O'Connor returned to her apartment a few days later, a window screen [357 Or. 148] had been removed, the door was ajar, and defendant was in her apartment. O'Connor called the police, and defendant was arrested and taken to jail.
Defendant called O'Connor three times from jail. In the first call, defendant told O'Connor that he was facing five to seven years in prison for burglary; he pleaded with her to tell the police that his belongings were in the apartment and that he had permission to be there. He asked O'Connor to tell the authorities that she had misreported the crime because she was having " delusions." When O'Connor refused, defendant told O'Connor that she had left the sliding glass door open and that she had told him that he could stay with her until March. She denied both assertions. Ten minutes later, defendant called O'Connor again, insisting that O'Connor tell the authorities that she might have left the door open and might have told him that he could stay in the apartment. Defendant stated that he wanted them to be " together on this" so that he could " tell them something, you know, to get me out of trouble." In the face of O'Connor's denials, defendant repeatedly told her that he had been living with her, that his belongings were in the apartment, and that he had not broken in. Defendant pleaded with her to go along with his story. When O'Connor reiterated that she would not lie to the authorities, defendant intimated that O'Connor was mentally unfit because she had not taken her prescribed psychiatric medication. Five days later, defendant called O'Connor for a third time from jail, again asking her whether she was taking her psychiatric medication.
Defendant was charged with three counts of tampering with a witness in violation of ORS 162.285, based on his three phone calls to O'Connor from jail. A jury found defendant guilty on two of those counts, and the court merged the verdicts into a single conviction. At a subsequent sentencing hearing, the state asked the court to impose an upward departure sentence on the tampering conviction, arguing [357 Or. 149] that the departure was appropriate under OAR 213-008-0002(1)(b)(B). That rule provides that a court may consider the following aggravating factor in determining whether substantial and compelling reasons exist for a departure sentence:
" The offender knew or had reason to know of the victim's particular vulnerability, such as the extreme youth, age, disability or ill health of victim, which increased the harm or threat of harm caused by the criminal conduct."
The state contended that, by his phone calls to O'Connor from jail, defendant had exploited O'Connor's psychological frailty in an attempt to induce her to testify falsely. Defendant responded that the state, not the witness, is the " victim" in a witness tampering case and, because O'Connor was not a victim for purposes of OAR 213-008-0002(1)(b)(B), that aggravating factor could not support a departure sentence.
The trial court concluded that both the state and O'Connor were " victims" of the crime of witness tampering for purposes of OAR 213-008-0002(1)(b)(B). The trial court found that the state was particularly vulnerable to defendant's tampering with O'Connor because O'Connor was " so much under the sway of the tamperer" and because defendant knew that it would be difficult for the state to convict defendant of the charge without O'Connor's cooperation. In addition, the trial court found that O'Connor was also a victim of that crime
" 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, Ms. O'Connor was obviously distraught over [defendant's] efforts to pressure and manipulate her. Based on years of manipulating and taking advantage of Ms. O'Connor, [defendant] knew of her particular vulnerability. This vulnerability increased the threat of harm to which Ms. O'Connor was subject, both in the short term (being successfully manipulated into testifying falsely) and in the long term (continuing in the abusive relationship with [defendant])."
Although the trial court did not expressly identify O'Connor's " particular vulnerability," it is clear from the [357 Or. 150] arguments before the trial court that the court was referring to O'Connor's physical and mental health issues.
Defendant appealed the trial court's imposition of the upward departure sentence to the Court of Appeals, arguing that neither the state nor O'Connor were particularly vulnerable victims of the crime of tampering with a witness. The Court of Appeals determined that defendant's view of the definition of " victim," which looked beyond the words of the sentencing guidelines to the elements of the offense for which he was being sentenced, was too narrow and that O'Connor was a " vulnerable victim" within the meaning of that phrase in OAR 213-008-0002(1)(b)(B). State v. Lykins, 259 Or.App. 475, 479-81, 314 P.3d 704');"> 314 P.3d 704 (2013). The Court of Appeals relied on a case presenting a similar issue that it recently had decided, State v. Teixeira, 259 Or.App. 184, 313 P.3d 351 (2013). In Teixeira, the court had concluded that interpreting the word " victims" in OAR 213-008-0002(1)(b)(G) to mean only the victims of the substantive statute defining the relevant offense would be incorrect because it would render that rule inapplicable to entire categories of offenses in which the defendant's conduct--although subject to only a single conviction--
in fact, resulted in injury to multiple persons. Teixeira, 259 Or.App. at 192. Based on the text, context and legislative history of the rule, the court held instead that, for purposes of the rule, a " victim is a person who is directly, immediately, and exclusively injured by the commission of the crime--not persons injured only by subsequent, additional ...