State v. Lykins , 357 Or. 145 ( 2015 )

No. 267 15 April 23, 2015 145
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Respondent on Review,
v.
MICHAEL PAUL LYKINS,
Petitioner on Review.
(CC C100530CR, D101103M;
CA A146498 (Control), A146499;
S061997)
En Banc
On review from the Court of Appeals.*
Argued and submitted September 15, 2014.
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.
BALDWIN, J.
The decision of the Court of Appeals is reversed. The sen-
tence imposed by the circuit court is vacated, and the case is
remanded to the circuit court for resentencing.
______________
* Appeal from Washington County Circuit Court, Steven L. Price, Judge.
259 Or App 475, 314 P3d 704 (2013).
146 State v. Lykins
Defendant was convicted of tampering with a witness, ORS 162.285, based
on his attempts to persuade his girlfriend to testify falsely in his trial on other
charges. At sentencing, the state sought an upward departure sentence on the
theory that defendant’s girlfriend was a vulnerable victim for purposes of OAR
213-008-0002(1)(b)(B), a rule which permits a departure sentence when “the
offender knew or had reason to know of the victim’s particular vulnerability.”
The trial court imposed the requested departure over defendant’s objection that
his girlfriend was not a victim of the crime of tampering with a witness, and
therefore was not a “victim” for purposes of OAR 213-008-0002(1)(b)(B). On
defendant’s appeal, the Court of Appeals affirmed. Held: For purposes of OAR
213-008-0002(1)(b)(B), which permits an upward departure sentence when the
defendant “knew or had reason to know of the victim’s particular vulnerability,”
the term “victim” has the same meaning as it has in the statute that defines the
offense for which the defendant is being sentenced; thus, when tampering with
a witness under ORS 162.285 is the offense, the witness who is tampered with
is not a “victim,” and a departure sentence cannot be based on the defendant’s
knowledge of the witness’s vulnerability.
The decision of the Court of Appeals is reversed. The sentence imposed by
the circuit court is vacated, and the case is remanded to the circuit court for
resentencing.
Cite as 357 Or 145 (2015) 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 crimi-
nal 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 favor-
able to the state. State v. McClure, 355 Or 704, 705, 335 P3d
1260 (2014). Defendant and his girlfriend, O’Connor, had a
tumultuous relationship for years before the incidents lead-
ing 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 post-
prison 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 apart-
ment 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
148 State v. Lykins
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 fac-
ing 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 slid-
ing 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 liv-
ing 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, defen-
dant 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 tamper-
ing with a witness in violation of ORS 162.285,1 based on his
three phone calls to O’Connor from jail.2 A jury found defen-
dant guilty on two of those counts, and the court merged the
verdicts into a single conviction. At a subsequent sentenc-
ing hearing, the state asked the court to impose an upward
departure sentence on the tampering conviction, arguing
1
We set out the text of ORS 162.285 later in this opinion.
2
Defendant also was charged with one count each of first-degree criminal
trespass (ORS 164.255) and second-degree criminal mischief (ORS 164.354), for
breaking into O’Connor’s apartment. He was convicted on both of those counts.
Those convictions are not at issue in this case.
Cite as 357 Or 145 (2015) 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 psychologi-
cal 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 defen-
dant’s tampering with O’Connor because O’Connor was “so
much under the sway of the tamperer” and because defen-
dant 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 vic-
tim 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 pres-
sure 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 tes-
tifying falsely) and in the long term (continuing in the abu-
sive relationship with [defendant]).”
Although the trial court did not expressly identify
O’Connor’s “particular vulnerability,” it is clear from the
150 State v. Lykins
arguments before the trial court that the court was refer-
ring 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 partic-
ularly 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 P3d 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 P3d 351 (2013). In Teixeira, the court had con-
cluded that interpreting the word “victims” in OAR 213-008-
0002(1)(b)(G) 3 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 cate-
gories 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 criminal conduct.” Lykins, 259 Or
App at 479 (quoting Teixeira, 259 Or App at 199).
The Court of Appeals applied that understanding of
the term “victim” to the facts of this case. The court noted
that the trial court had ruled that O’Connor was a victim
of witness tampering because she suffered psychological
and social harm from defendant’s attempts to pressure her
and her vulnerability increased the threat of harm to her.
Lykins, 259 Or App at 479. The court concluded that those
facts demonstrated that O’Connor was “directly, imme-
diately, and exclusively injured by the commission of the
3
OAR 213-008-0002(1)(b)G) sets out as an aggravating factor the fact the
“[t]he offense involved multiple victims or incidents.”
Cite as 357 Or 145 (2015) 151
crime” and, therefore, that she was a “victim” as that word
is used in OAR 213-008-0002(1)(b)(B). Id. at 480.
The Court of Appeals continued its analysis by noting
that an upward departure sentence is appropriate under OAR
213-008-0002(1)(b)(B) only when the trial court’s findings of
fact and its reasons justifying the departure are supported by
evidence in the record and constitute a substantial and com-
pelling reason for departure as a matter of law. It then con-
sidered whether the trial court’s reasoning met that standard
in this case. Id. The court stated that evidence that defendant
and O’Connor were in an intimate relationship when defen-
dant assaulted her, and that he questioned her mental health
when he later contacted her from jail in an effort to persuade
her to lie to police, established that O’Connor was particu-
larly vulnerable. Id. Moreover, the court stated, defendant’s
comments about O’Connor’s mental health and medication
established that defendant knew about O’Connor’s vulnera-
bility. Id. at 480-81. For those reasons, the court concluded
that the trial court’s findings were supported by the evidence
and constituted substantial and compelling reasons to impose
a departure sentence.4 Id. at 481.
On review, defendant argues that the word “victim”
in OAR 213-008-0002(1)(b)(B) is a legal term of art, and,
although it is not defined in the rule, the context of the rule
and the legislative history demonstrate that the drafters
intended it to mean the victim of the crime for which the
defendant is being sentenced. Defendant contends that the
crime for which he was being sentenced—tampering with
a witness—is a crime against the state and that O’Connor
was not a victim of that crime. Therefore, according to defen-
dant, the trial court erred in imposing a departure sentence
based on the vulnerable victim aggravating factor.
The state, for its part, concedes that O’Connor
was not a victim of the crime of tampering with a witness.5
4
In light of that conclusion, the court did not address whether the state also
was a vulnerable victim.
5
In addition, while refusing to concede that the state can never be a “vul-
nerable victim” for purposes of OAR 213-008-0002(1)(b)(B), the state declines to
argue that it was a particularly vulnerable victim in this case. We therefore do
not reach that issue.
152 State v. Lykins
However, the state contends that the word “victim” in OAR
213-008-0002(1)(b)(B) does not narrowly refer to the victim
of the crime for which the defendant is being sentenced, but
applies more broadly to anyone who was “directly harmed
by the commission of the crime.” In the state’s view, because
O’Connor was directly harmed by defendant’s commission of
the crime of tampering with a witness, the trial court cor-
rectly imposed an upward departure sentence based on the
vulnerable victim aggravating factor.
As a preliminary matter, we accept the state’s con-
cession that O’Connor was not a victim of the crime of tam-
pering with a witness. See State v. Bea, 318 Or 220, 224, 864
P2d 854 (1993) (court is not bound by party’s concession on
a legal question). That crime is described in ORS 162.285,
which provides:
“(1)  A person commits the crime of tampering with a
witness if:
“(a)  The person knowingly induces or attempts to
induce a witness or a person the person believes may be
called as a witness in any official proceeding to offer false
testimony or unlawfully withhold any testimony; or
“(b)  The person knowingly induces or attempts to
induce a witness to be absent from any official proceeding
to which the person has been legally summoned.
“(2)  Tampering with a witness is a Class C felony.”
Whether the witness tampered with is a “victim” of that
crime is a matter of legislative intent. As this court explained
in State v. Glaspey, 337 Or 558, 564, 100 P3d 730 (2004), to
determine the legislature’s intent, the court “must focus on
the words that the legislature chose to use” in the “specific
criminal statute that defines [the] criminal offense for pur-
poses of prosecution.”
In Glaspey, the defendant was convicted of felony
fourth-degree assault under ORS 163.160, after assault-
ing his wife in front of his two minor children. Under that
statute, a person commits the misdemeanor offense of
fourth-degree assault if the person “[i]ntentionally, know-
ingly, or recklessly causes physical injury to another.” ORS
163.160(1). The offense is elevated to a felony, however, if
Cite as 357 Or 145 (2015) 153
the assault is committed in the immediate presence of or
is witnessed by the person’s or the victim’s minor children.
ORS 163.160(3)(c). The state in that case argued that, even
though the statute appeared to use the word “victim” to
refer to the assaulted person, the court should focus on the
ordinary, dictionary definition of the word “victim,” which
includes persons who suffer all manner of harm, including
the psychological harm that the child witnesses would suf-
fer from witnessing an assault. 337 Or at 564. This court
disagreed, concluding that the text of the statute could be
read sensibly only if the victim of fourth-degree assault is
the person directly, physically injured by an assault. Id.
at 565. Further, the court stated, context—the use of the
word “victim” throughout the substantive part of the crim-
inal code—confirmed that interpretation, because,
“[o]rdinarily, when the term ‘victim’ is used in a statute
that defines a criminal offense, it is used in the precise
sense of a person who suffers harm that is an element of
the offense.”
Id.
The tampering statute does not mention a “victim”
of that offense, nor does it require evidence of harm to any
person as an element of the offense. Rather, the harm that
is the focus of the statutory wording is the risk that a wit-
ness in an official proceeding will offer false testimony or
unlawfully withhold testimony. If a witness were to provide
false testimony or withhold testimony, the resulting harm
would be to the administration of justice and to the people of
the state. A witness tampered with may be affected by the
defendant’s criminal conduct, but, like the child witnesses
in Glaspey, that witness does not suffer harm that is an ele-
ment of the criminal offense.
We also note that the crime of tampering with a
witness is not included among the offenses that the crimi-
nal code categorizes as “offenses against persons,” and is not
a “person felony” for purposes of the sentencing guidelines.
OAR 213-003-0001(14) (listing “person felonies”). Rather,
tampering with a witness is included in the part of the crim-
inal code that sets out “Offenses Against the State and Public
Justice,” including bribery, ORS 162.015 to 162.025; perjury
154 State v. Lykins
and related offenses, ORS 162.065 to 162.085; escape and
related offenses, ORS 162.145 to 162.175; failure to appear,
ORS 162.193 to 162.205; obstructing governmental admin-
istration, ORS 162.225 to 162.385; abuse of public office,
ORS 162.405 to 162.425; and interference with legislative
operations, ORS 162.455 to 162.465. In all those crimes, the
concern is for the protection of the administration of justice.
That is a concern that relates to the state, not to an individual
who might be affected by the defendant’s conduct. For those
reasons, we conclude that the witness tampered with—
O’Connor in this case—is not a victim of the crime of tam-
pering with a witness.
Before we address whether the word “victim” has a
different meaning in the rule that permits a court to impose
a departure sentence when a “victim” is “vulnerab[le],” OAR
213-008-0002(1)(b)(B), we first provide, as background,
a brief review of the adoption of the sentencing guidelines
and the rule governing departure sentences. As this court
explained in State v. Speedis, 350 Or 424, 426-27, 256 P3d
1061 (2011), before 1989, sentencing courts had considerable
latitude in determining appropriate sentences for criminal
convictions. That latitude sometimes led to disparate sen-
tences for similarly situated defendants. To provide greater
uniformity in sentencing, the Legislative Assembly, in 1987,
directed the then recently-created Oregon Criminal Justice
Council (the Council) to develop a series of sentencing
guidelines. Or Laws 1987, ch 619, § 2. The Council devel-
oped the felony sentencing guidelines, which were revised
and adopted by the State Sentencing Guidelines Board, and
then approved by the legislature in 1989. Or Laws 1989,
ch 790, § 87. The sentencing guidelines thus promulgated
and adopted prescribe presumptive sentences for most felo-
nies,6 subject to judicial discretion to deviate from those pre-
sumptive sentences for substantial and compelling reasons.
OAR 213-002-0001(2) (so stating).
6
The presumptive sentences generally are derived from the seriousness of
the current crime and the offender’s criminal history. OAR 213-003-0001(16)
(“ ‘Presumptive sentence’ means the sentence provided in a grid block for an
offender classified in that grid block by the combined effect of the crime seri-
ousness ranking of the current crime of conviction and the offender’s criminal
history or a sentence designated as a presumptive sentence by statute.”).
Cite as 357 Or 145 (2015) 155
The Oregon Sentencing Guidelines Implementation
Manual (guidelines manual) contains the official commen-
tary to the guidelines and provides important legislative his-
tory to aid our interpretation of the relevant guidelines pro-
visions. Oregon Criminal Justice Council, Oregon Sentencing
Guidelines Implementation Manual (Sept 1989). As the
guidelines manual makes explicit, the drafters intended
that presumptive sentences be imposed in all but the most
unusual cases: “When a case represents a truly unique set
of circumstances, the sentencing judge is free to impose a[n]
appropriate sentence, other than the presumptive sentence.”
Oregon Sentencing Guidelines Implementation Manual at
123; OAR 213-008-0001 (“the sentencing judge shall impose
the presumptive sentence provided by the guidelines unless
the judge finds substantial and compelling reasons to impose
a departure”). OAR 213-008-0002 sets out a nonexclusive
list of circumstances meeting that standard.7
7
OAR 213-008-0002 provides, in part:
“(1)   Subject to the provisions of sections (2) and (3) of this rule, the fol-
lowing nonexclusive list of mitigating and aggravating factors may be consid-
ered in determining whether substantial and compelling reasons for a depar-
ture exist:
“(a)   Mitigating factors:
“(A)  The victim was an aggressor or participant in the criminal conduct
associated with the crime of conviction.
“(B)  The defendant acted under duress or compulsion (not sufficient as a
complete defense).
“(C)  The defendant’s mental capacity was diminished (excluding dimin-
ished capacity due to voluntary drug or alcohol abuse).
“(D)  The offense was principally accomplished by another and the defen-
dant exhibited extreme caution or concern for the victim.
“(E)  The offender played a minor or passive role in the crime.
“(F)  The offender cooperated with the state with respect to the current
crime of conviction or any other criminal conduct by the offender or other per-
son. The offender’s refusal to cooperate with the state shall not be considered
an aggravating factor.
“(G)  The degree of harm or loss attributed to the current crime of convic-
tion was significantly less than typical for such an offense.
“(H)   The offender’s criminal history indicates that the offender lived
conviction-free within the community for a significant period of time preced-
ing his or her current crime of conviction.
“(I)    The offender is amenable to treatment and an appropriate treatment
program is available to which the offender can be admitted within a reason-
able period of time; the treatment program is likely to be more effective than
the presumptive prison term in reducing the risk of offender recidivism; and
156 State v. Lykins
As discussed, the trial court in this case relied on
OAR 213-008-0002(1)(b)(B) to support an enhanced sen-
tence for defendant’s conviction of the crime of tampering
with a witness. That factor provides a basis for an upward
departure sentence when “[t]he 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.” Here, it is undisputed that O’Connor was vulnera-
ble because of her fragile psychological state and that defen-
dant knew of that vulnerability. Thus, as the parties agree,
this case turns on whether O’Connor was a “victim” within
the meaning of that word in OAR 213-008-0002(1)(b)(B).
The term “victim” is not defined in either the sen-
tencing guidelines or in their authorizing statutes. As the
parties acknowledge, the word “victim” has been defined to
the probation sentence will serve community safety interests by promoting
offender reformation.
“(J)   The offender’s status as a servicemember as defined in ORS 135.881.
“(b)  Aggravating factors:
“(A)  Deliberate cruelty to victim.
“(B) The offender knew or had reason to know of the victim’s particu-
lar 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.
“(C)  Threat of or actual violence toward a witness or victim.
“(D) Persistent involvement in similar offenses or repetitive assaults.
This factor may be cited when consecutive sentences are imposed only if the
persistent involvement in similar offenses or repetitive assaults is unrelated
to the current offense.
“(E)  Use of a weapon in the commission of the offense.
“(F) The offense involved a violation of public trust or professional
responsibility.
“(G)  The offense involved multiple victims or incidents. This factor may
not be cited when it is captured in a consecutive sentence.
“(H)   T he crime was part of an organized criminal operation.
“(I)    The offense resulted in a permanent injury to the victim.
“(J)   The degree of harm or loss attributed to the current crime of convic-
tion was significantly greater than typical for such an offense.
“(K)  The offense was motivated entirely or in part by the race, color, reli-
gion, ethnicity, national origin or sexual orientation of the victim.
“(L) Disproportionate impact (for Theft I under ORS 164.055, and
Aggravated Theft I under ORS 164.057).”
Cite as 357 Or 145 (2015) 157
mean different things in different legal contexts. For exam-
ple, in the context of the victim’s rights statutes, the term
“victim” is defined broadly, as any person who has “suffered
financial, social, psychological or physical harm as a result
of a crime.” ORS 131.007. Similarly, for purposes of the res-
titution statutes, “victim” is defined to include not only the
person against whom the defendant committed the crimi-
nal offense, but also any person who “has suffered economic
damages as a result of the defendant’s criminal activities,”
including the Criminal Injuries Compensation Account
and an insurance carrier, to the extent that either of those
entities expended money on behalf of the person against
whom the defendant committed the criminal offense. ORS
137.103(4). At the same time, although the legislature did
not define the word “victim” for purposes of the statute gov-
erning merger of convictions, ORS 161.067(2),8 this court
has held that, in that context, a narrower meaning applies:
The word “victim” refers to “the category of persons who are
victims within the meaning of the specific substantive stat-
ute defining the relevant offense.” Glaspey, 337 Or at 563.
Because the word “victim” is not expressly defined
for purposes of the departure rule, defendant urges us to
interpret that word by reference to the substantive offense
for which the defendant is being sentenced, as the court did in
Glaspey. The state, on the other hand, argues that, because
neither the guidelines nor OAR 213-008-0002(1)(b)(B)
define the term, this court should consider the following ordi-
nary, dictionary definition of the word “victim”: “2 : some-
one put to death, tortured, or mulcted by another : a per-
son subjected to oppression, deprivation, or suffering * * *
4 : someone tricked, duped, or subjected to hardship : some-
one badly used or taken advantage of[.]” Webster’s Third
New Int’l Dictionary 2550 (unabridged ed 2002) (boldface in
original). The state contends that, so defined, “victim” would
include not only those persons whom the legislature intended
to protect in defining the crime for which the defendant is
being sentenced, but also persons whom were collaterally
8
ORS 161.067(2) provides, in part:
“When the same conduct or criminal episode, though violating only one stat-
utory provision involves two or more victims, there are as many separately
punishable offenses as there are victims.”
158 State v. Lykins
harmed by the defendant’s commission of that crime, such
as the witness in the crime of tampering with a witness.
To resolve that interpretive issue, we follow our
usual paradigm, which requires us to examine the text and
context of the statute, along with any legislative history
that the court finds useful. See State v. Gaines, 346 Or 160,
171-72, 206 P3d 1042 (2009) (explaining that methodology).
Although, in this case, we are called upon to interpret an
administrative rule and not a statute, the same principles
apply. Wetherell v. Douglas County, 342 Or 666, 678, 160 P3d
614 (2007) (court’s task in construing administrative rules
is same as for statutes: to discern meaning of words used,
giving effect to intent of body that promulgated rule).
As an initial consideration, we note that depar-
ture sentences serve two primary sentencing objectives:
“just desserts for the crime of conviction and public safety.”
Oregon Sentencing Guidelines Implementation Manual at
125. Further, as the guidelines commentary states:
“In the guidelines system, the seriousness of criminal con-
duct is determined by the crime of conviction. Consequently,
a departure sentence is not appropriate for elements of
alleged offender behavior not within the definition of the
offense of conviction.”
Id. Consistently with those principles, the factors set out in
OAR 213-008-0002 as supporting a departure sentence mit-
igate and aggravate both the seriousness of the crime for
which the defendant is being sentenced and the risk to pub-
lic safety posed by the defendant. And, to state the obvious,
an aggravating factor, by definition, is a circumstance that
makes the crime of conviction or the risk to public safety
distinctly worse than it usually would be, thereby justify-
ing the enhanced punishment. A purported aggravating cir-
cumstance that does not relate directly either to the offense
or the offender would not make worse either the seriousness
of the crime or the risk to public safety, and would not con-
stitute a substantial and compelling reason to depart from a
presumptive sentence. Those considerations suggest a focus
on the victim of the crime for which the defendant is being
sentenced, rather than on a third party who may be affected
Cite as 357 Or 145 (2015) 159
by the defendant’s criminal conduct but who has not suf-
fered harm that is an element of the offense.
That initial impression is bolstered by consideration
of the text of OAR 213-008-0002(1)(b)(B). First, the aggra-
vating factor described in that rule is that the offender knew
or had reason to know of “the victim’s” particular vulnera-
bility. As a grammatical matter, the definite article, “the,”
indicates something specific, either known to the reader
or listener or uniquely specified. Rodney Huddleston and
Geoffrey Pullum, The Cambridge Grammar of the English
Language § 6.1, 368-71 (2002). Because the article “the” is
used to convey exactly who or what is being referred to, the
drafters’ choice to use the words “the victim” rather than
“a victim” in OAR 213-008-0002(1)(b)(B) suggests an intent
to refer to a known class of victims, such as the victim of
the crime for which the defendant is being sentenced, rather
than indiscriminately to all persons who might be affected
by a defendant’s conduct. See State v. Lopez-Minjarez, 350
Or 576, 583, 260 P3d 439 (2011) (reasoning that legislature’s
use of definite article showed intent to refer to the particular
and known); Force v. Dept. of Rev., 350 Or 179, 189, 252 P3d
306 (2011) (same).
Second, under OAR 213-008-0002(1)(b)(B), the
victim’s vulnerability must have “increased the harm or
threat of harm caused by the criminal conduct.” The word
“increased” implies that the harm is the same as, but
greater in degree than, the harm against which the substan-
tive offense—the offense for which the defendant is being
sentenced—protects. And that, in turn, is the harm that the
victim of that offense suffered in a particular case.
The state asserts, to the contrary, that the fact that
the victim’s vulnerability increased the harm or threat of
harm caused by the “criminal conduct” supports its inter-
pretation of the word “victim” in OAR 213-008-0002(1)(b)(B)
to include any person whom the defendant’s acts have
harmed. That is so, the state argues, because the phrase
“criminal conduct” refers not to the criminal offense itself,
but to the defendant’s conduct—his or her actions and
behavior—that constituted the criminal offense. And, the
argument continues, those actions and behavior could harm
160 State v. Lykins
others besides the person or entity that suffered the harm
that is an element of the offense for which the defendant is
being sentenced.
However, the distinction that the state draws—
between the criminal offense and a defendant’s “criminal
conduct” that harms someone—does not bear scrutiny.
“Criminal conduct” is not criminal conduct unless it violates
a criminal statute. That is, a defendant’s actions become
“criminal conduct” because those actions meet the elements
of a criminal offense. And the harm “caused by” that crim-
inal conduct is the harm that the victim of that criminal
offense suffers.
Our review of the text of OAR 213-008-0002(1)(b)(B)
thus suggests that the drafters intended the word “victim”
to mean the person or entity that is the victim of the offense
for which the defendant is being sentenced.
The context of OAR 213-008-0002(1)(b)(B) also
supports that interpretation. Importantly, nothing in OAR
213-008-0002 suggests that the drafters intended the word
“victim” to refer broadly to any person affected by a defen-
dant’s criminal conduct. Further, our interpretation of the
word “victim” to mean the person who suffered the harm
that is an element of the offense for which the defendant
is being sentenced is consistent with the use of that word
in the other enhancement factors set out in OAR 213-008-
0002. The word “victim” appears eight times in the 22 miti-
gating and aggravating factors listed in that rule. In all but
two of those instances, the text of the provision can be read
sensibly only if the word “victim” refers to the victim of the
offense for which the defendant is being sentenced.9
In addition, OAR 213-008-0002(1)(b)(C) provides
for a departure sentence when there has been a “[t]hreat of
9
The following are a few illustrative examples. OAR 213-008-0002(1)(a)(A)
provides as a mitigating factor, that “[t]he victim was an aggressor or participant
in the criminal conduct associated with the crime of conviction.” OAR 213-008-
0002(1)(a)(D) states, also as a mitigating factor, that “[t]he offense was commit-
ted by another and the defendant exhibited extreme caution or concern for the vic-
tim.” OAR 213-008-0002(1)(b)(I) provides, as an aggravating factor that, “[t]he
offense resulted in permanent injury to the victim.” OAR 213-008-0002(1)(b)(G)
lists as an aggravating factor that “[t]he offense involved multiple victims or
incidents.”
Cite as 357 Or 145 (2015) 161
or actual violence to a witness or victim.” According to the
guidelines commentary, that factor is intended to be used
“when the offender seeks to avoid prosecution by threaten-
ing or harming a witness or the victim.” Oregon Sentencing
Guidelines Implementation Manual at 130 (emphasis added).
The broad definition of “victim” that the state advances
would subsume a witness who is harmed or threatened with
harm, making the reference to “a witness” in that depar-
ture factor surplusage. Rather, the distinction between “a
witness” and “the victim” in the commentary textually sig-
nals the drafters’ understanding that the word “victim” in
that provision refers narrowly to the victim of the crime for
which the defendant is being sentenced.10
Because, in many of the departure factors enu-
merated in OAR 213-008-0002, the word “victim” refers
narrowly to the person whom the legislature intended to
protect in defining the crime of conviction, and not more
broadly to other persons collaterally harmed by a defen-
dant’s commission of the crime, we infer that the draft-
ers intended that word to mean the same thing in OAR
213-008-0002(1)(b)(B). Ordinarily, we assume that the
use of the same term throughout a statute indicates that
the term has the same meaning throughout that statute.
PGE v. Bureau of Labor and Industries, 317 Or 606, 611,
859 P2d 1143 (1993); Tharp v. PSRB, 338 Or 413, 422, 110
P3d 103 (2005) (“When the legislature uses the identical
phrase in related statutory provisions that were enacted as
part of the same law, we interpret the phrase to have the
same meaning in both statutes.”). Thus, because we con-
clude that the word “victim” in many of the enhancement
factors set out in OAR 213-008-0002 means the victim of
the offense for which the defendant is being sentenced, and
because there is no indication in the rule that the legis-
lature intended that word to have different meanings in
different parts of the rule, we conclude that that word has
the same meaning throughout that rule, including in OAR
213-008-0002(1)(b)(B).
10
Apart from OAR 213-008-0002(1)(b)(B), at issue here, the other aggravat-
ing factor that arguably is ambiguous as to whom the word “victim” refers is OAR
213-008-0002(1)(b)(A), “[d]eliberate cruelty to victim.”
162 State v. Lykins
The state urges the court to consider the rule’s
enactment history, which, it contends, supports its inter-
pretation of the word “victim.” In particular, the state
argues that the commentary to OAR 213-008-0002 in the
Oregon Sentencing Guidelines Implementation Manual
reveals that the list of enumerated departure factors was
intended to be only a starting point and, indeed, that the
examples in the commentary of how certain departure fac-
tors might apply show an intent to permit judges to impose
departure sentences based on facts that are not elements
of the crime for which the defendant is being sentenced.
Specifically, the state points to the commentaries to OAR
213-008-0002(1)(a)(E) (the offender played a minor or pas-
sive role in the offense) and OAR 213-008-0002(1)(a)(G)
(the degree of harm or loss attributable to the current crime
of conviction was significantly less than typical for such an
offense). In the first example, the commentary states that, in
sentencing an offender convicted of drug delivery, the judge
may conclude that an offender’s role in the drug distribution
is minor (and impose a downward departure sentence) if the
offender thought he was transporting marijuana but was,
in fact, transporting heroin. Oregon Sentencing Guidelines
Implementation Manual at 128. Yet, as the state explains,
the offender in that example has not literally taken a “minor
or passive role” in the drug delivery; rather, he was the
primary actor. Similarly, in the second example, the com-
mentary states that, in sentencing an offender convicted
of first-degree burglary for stealing a bicycle tire from an
unlocked garage attached to an occupied residence, a judge
may conclude that the conduct is significantly less serious
than a typical burglary, where an offender might break into
the victim’s actual living quarters to steal more valuable
property or to commit an assault. Id. at 129. However, as
the state explains, the degree of actual loss or harm in both
scenarios is the same, because a burglary is complete at the
time of the entry and does not require that the occupants be
subjected to any actual harm or loss. Thus, according to the
state, those examples show that the mitigating and aggra-
vating factors set out in OAR 213-008-0002 were designed
to characterize the offender’s overall culpability; they were
“not intended to be constrained by the precise elements that
make the conduct a crime in the first place.”
Cite as 357 Or 145 (2015) 163
In our view, those examples do not shed light on
the meaning of the word “victim” in OAR 213-008-0002
generally, or in OAR 213-008-0002(1)(b)(B) in particular.
Moreover, the state has pointed to nothing in the commen-
tary that persuades us that the drafters intended the word
“victim” in that rule to refer to anyone other than the victim
of the offense for which the defendant is being sentenced.
Rather, as we have explained, to the extent that the leg-
islative history aids in determining the drafters’ intended
meaning of the word “victim,” it suggests an intent to refer
only to the victim of the offense for which the defendant is
being sentenced.
We therefore conclude that, for purposes of OAR
213-008-0002(1)(b)(B), which permits a trial court to
enhance a defendant’s sentence when the defendant “knew
or had reason to know of the victim’s particular vulnerabil-
ity, * * * which increased the harm or threat of harm caused
by the criminal conduct,” the term “victim” has the same
meaning as it has in the relevant statutory provision defin-
ing the offense for which the defendant is being sentenced.
In this case, defendant was being sentenced for the offense
of tampering with a witness in violation of ORS 162.285. As
we have explained, O’Connor was not a victim of that crime;
it follows that the trial court erred in imposing a departure
sentence for defendant’s conviction of that offense based on
OAR 213-008-0002(1)(b)(B).
The decision of the Court of Appeals is reversed.
The sentence imposed by the circuit court is vacated, and
the case is remanded to the circuit court for resentencing.