State v. Lykins

Summary

The Oregon Supreme Court held that, for purposes of the sentencing departure rule in OAR 213-008-0002(1)(b)(B), the term "victim" has the same meaning as in the statute defining the offense for which the defendant is being sentenced. Because witness tampering under ORS 162.285 is an offense against the state and public justice, the witness who was tampered with was not a victim for purposes of the vulnerable-victim departure factor. The court reversed the Court of Appeals, vacated the sentence, and remanded for resentencing.

Holdings

1. For purposes of OAR 213-008-0002(1)(b)(B), the term "victim" has the same meaning as it has in the statutory provision defining the offense for which the defendant is being sentenced.
2. A witness who is tampered with is not a victim of the crime of tampering with a witness under ORS 162.285 because harm to that witness is not an element of the offense.
3. The trial court erred by imposing an upward departure sentence on defendant's tampering-with-a-witness conviction based on O'Connor's vulnerability.

Questions Presented

1. Whether the term "victim" in OAR 213-008-0002(1)(b)(B) means the victim of the offense for which the defendant is being sentenced or includes a person directly harmed by the defendant's criminal conduct.
2. Whether O'Connor was a vulnerable victim for purposes of the departure factor when defendant was sentenced for tampering with a witness under ORS 162.285.
3. Whether the trial court lawfully imposed an upward departure sentence based on O'Connor's vulnerability.

Disposition

reversed_and_remanded