State v. Palmer

No. 813 November 14, 2024 187

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

KELLY ROSE PALMER,

aka Kelly Rose Harris, aka Kelly Rose Lehuquet,

Defendant-Appellant.

Deschutes County Circuit Court

21CR19657; A178459

Alycia M. Herriott, Judge.

Submitted January 19, 2024.

Ernest G. Lannet, Chief Defender, Criminal Appellate

Section, and David O. Ferry, Deputy Public Defender, Office

of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman,

Solicitor General, and Timothy A. Sylwester, Assistant

Attorney General, filed the brief for respondent.

Before Shorr, Presiding Judge, Pagán, Judge, and Mooney,

Senior Judge.

PAGÁN, J.

Affirmed.

188 State v. Palmer

PAGÁN, J.

Defendant appeals from a judgment of conviction

for three counts of first-degree theft, ORS 164.055, and two

counts of first-degree criminal mistreatment, ORS 163.205. In

her sole assignment of error, she contends that the trial court

erred in sentencing when it imposed upward dispositional

departure sentences on the criminal mistreatment counts.

Defendant argues that her departure sentences were based on

an aggravating factor that was duplicative of the statute she

was convicted under. Because we conclude that the aggravat-

ing factor was significantly different than the usual conduct

required for conviction under ORS 163.205, we affirm.

To impose a departure sentence, the trier of fact must

determine, as a factual matter beyond a reasonable doubt,

that alleged aggravating or mitigating facts are present.

State v. Jimenez, 318 Or App 221, 222, 506 P3d 500, rev den,

369 Or 785 (2022); State v. Sawatzky, 195 Or App 159, 165,

96 P3d 1288 (2004). On appeal, we will not disturb those fac-

tual findings as long as they are supported by evidence in the

record. Jimenez, 318 Or App at 222. “Once proven, whether

facts constitute ‘substantial and compelling reasons’ required

for a departure sentence is a question of law, reviewed for

errors of law.” Id. (quoting OAR 213-008-0001). We state the

facts with that standard of review in mind.

Defendant operated an adult foster care service from

2015 to 2019. During that time, she took care of two disabled

adults: D and T. Due to the extent of their disabilities, D and

T were unable to manage their own finances, which con-

sisted chiefly of Social Security benefits. Defendant man-

aged their money as a fiduciary. After the death of T, a fam-

ily member alerted authorities to suspicious transactions

on T’s bank account, some of which had occurred after T’s

death. An investigation revealed that defendant had embez-

zled considerable sums of money from both D and T over a

period of years, and she was charged by indictment with 13

counts relating to the thefts. The indictment included sen-

tence enhancement allegations for each of the counts.

Defendant waived the right to a jury trial and

pleaded guilty to three counts of first-degree theft (Counts

Cite as 336 Or App 187 (2024) 189

1, 2, and 6) and two counts of first-degree criminal mistreat-

ment (Counts 12 and 13) in exchange for the dismissal of the

remaining counts. On each charge, defendant admitted to

the underlying crime, as well as the sentence-enhancement

allegation: “I also admit I knew [victim] was particularly

vulnerable due to [their] disability, which increased the

harm caused by the offense.”

At sentencing, after hearing from victim represen-

tatives and from defense counsel, who argued that the alle-

gation was duplicative of the statute and could not be the

basis for enhancement, the trial court made these findings:

The evidence before the Court is that these individ-

uals were entirely dependent on the defendant. They were

or are mostly nonverbal, need assistance with bathing, in

the bathroom, eating, medical, and dental attention, and at

times mobility.

The testimony is or was that [T] had the capabili-

ties of approximately a three-year-old, [D], a five- to seven-

year-old. They cannot be placed in the same category as a

14-year-old verbal child who would be a dependent due to age

alone, they simply are not the same. As in the [Boxberger v.

Board of Parole, 123 Or App 339, 858 P2d 1356 (1993)] case,

I find [D] and [T] were particularly vulnerable by reason of

their extreme disability as that term was used in Boxberger.

Based on those findings, the court imposed upward

dispositional departure sentences on all counts.

As noted above, defendant assigns error to the

trial court’s imposition of the upward dispositional depar-

ture sentences on Counts 12 and 13. Defendant argues that

the crime of criminal mistreatment based on the appro-

priation of a dependent person’s money or property under

ORS 163.205(1)(b)(D) is not significantly different from the

aggravating factor of particular vulnerability under OAR

213-008-0002(1)(b)(B) and that they are thus duplicative.

By way of context for defendant’s argument, we

begin with the statutory scheme underlying sentencing

enhancement. The grid block that a defendant falls in, based

on the severity of the crime and the defendant’s criminal

190 State v. Palmer

history, provides the presumptive sentence. State v. Wilson,

111 Or App 147, 150, 826 P2d 1010 (1992). Departure from

that sentence requires factual findings by the trier of fact

that legally constitute “substantial and compelling rea-

sons,” that is, “exceptional circumstances that overcame

that presumption.” Id.; see OAR 213-008-0001 (“sentencing

judge shall impose the presumptive sentence provided by

the guidelines unless the judge finds substantial and com-

pelling reasons to impose a departure”); ORS 136.770, ORS

136.773 (providing for submission of allegations of enhance-

ment facts to the trier of fact). To aid in this determination,

the Oregon Criminal Justice Commission enumerated a

nonexclusive list of aggravating factors, which if found, may

constitute substantial and compelling reasons for a depar-

ture. OAR 213-008-0002(1)(b).

However, if an aggravating factor overlaps to a

substantial degree with the statute of conviction, the factor

is not substantial and compelling and therefore cannot be

the basis for a departure. OAR 213-008-0002(2). That rule,

which aims to prevent duplicative sentencing, reads:

“If a factual aspect of a crime is a statutory element of

the crime or is used to subclassify the crime on the Crime

Seriousness Scale, that aspect of the current crime of con-

viction may be used as an aggravating or mitigating factor

only if the criminal conduct constituting that aspect of the

current crime of conviction is significantly different from the

usual criminal conduct captured by the aspect of the crime.”

OAR 213-008-0002(2) (emphasis added). Defendant argues

that the elements of ORS 163.205(1)(b)(D) overlap with the

vulnerable victim aggravating factor, such that the conduct

is not significantly different. We examine both the statute

and the aggravating factor.

ORS 163.205(1), as relevant here, provides that a

person commits the crime of criminal mistreatment in the

first degree if:

“(b) The person, in violation of a legal duty to provide

care for a dependent person or elderly person, or having

assumed the permanent or temporary care, custody or

responsibility for the supervision of a dependent person or

elderly person, intentionally or knowingly:

Cite as 336 Or App 187 (2024) 191

“* * * * *

“(D) Hides the dependent person’s or elderly person’s

money or property or takes the money or property for, or

appropriates the money or property to, any use or pur-

pose not in the due and lawful execution of the person’s

responsibility[.]”

ORS 163.205(2)(b) defines “dependent person” as “a

person who because of either age or a physical or mental dis-

ability is dependent upon another to provide for the person’s

physical needs.” Here, defendant committed first degree

criminal mistreatment by taking the money of D and T,

whom she had a legal duty to care for as dependent persons.

In turn, the vulnerable victim aggravating factor

under OAR 213-008-0002(1)(b)(B) applies when:

“[t]he offender knew or had reason to know of the vic-

tim’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.”

Defendant argues that a person who is disabled to

the point of dependency, such that they would fall under the

criminal mistreatment statute, is inherently vulnerable,

and, thus, she argues, the aggravating factor is duplicative.

In essence, defendant argues that ORS 163.205(1)(b)(D) has

already captured the criminal conduct of the vulnerable vic-

tim aggravating factor.

In response, the state argues that the extent of the

victims’ disabilities was significantly different from the typ-

ical disability that falls within the scope of a “dependent

person” under the criminal mistreatment statute. The state

points to, among other cases, Boxberger, 123 Or App 339,

which the trial court relied on when it imposed defendant’s

sentence.

In Boxberger, the issue on appeal involved a petition

for review of a parole board order which established the peti-

tioner’s initial release date in accordance with a judicially

imposed minimum sentence. 123 Or App at 341. Factually,

Boxberger concerned a conviction for first-degree sodomy,

which applied to sodomy committed on victims under 12

years old. Id. The victims “were 4, 2, and less than one year

192 State v. Palmer

old,” and the trial court had found them to be particularly

vulnerable. Id. On appeal, the petitioner argued that age

was already considered by the statute, and thus the parole

board erred in accepting the trial court’s duplicative sen-

tence. Id. We rejected that argument, noting that the vic-

tims were substantially younger than twelve. Id. We rea-

soned that the harm done to a four-year-old could be much

greater than that done to an 11-year-old, even though both

were less than 120. Id. (citing Jarvis v. State Board of Parole,

96 Or App 322, 773 P2d 3, rev den, 308 Or 197 (1989)). We

understand Boxberger to stand for the proposition that there

are statutes under which not all victims are alike, and at

some point the difference between victims (and the criminal

conduct committed against them) becomes significant.

Defendant attempts to distinguish Boxberger and

the underlying Jarvis case as being about parole, which

involved only a preponderance of the evidence standard of

proof and did not apply the “substantial and compelling rea-

sons” test of OAR 213-008-0001. See Jimenez, 318 Or App at

222 (discussing the substantial and compelling reasons test).

That might be relevant if the issue here were sufficiency

of the evidence, but it is not. Instead, we are examining

whether the statutory overlap is preclusive, and Boxberger

involves the same fundamental principles. That Boxberger

did not apply the substantial and compelling reasons test

does not invalidate the applicability of its reasoning. Thus,

we conclude that the trial court did not err in relying on

the reasoning from Boxberger to decide that, when the leg-

islature has defined a crime whose victims are all vulnera-

ble, differences between individuals within the legislatively

defined group of victims may still allow enhancement on the

ground that some victims are particularly more vulnerable

than others in the group.

Insofar as defendant raises State v. Enemesio to sup-

port her argument, we are not persuaded that it is factually

analogous or applicable to the circumstances here, although

it still stands for the proposition that some victims are more

vulnerable than others. 233 Or App 156, 162, 225 P3d 115,

rev den, 348 Or 414 (2010). In Enemesio, the state sought to

show that the victim was particularly vulnerable because

Cite as 336 Or App 187 (2024) 193

she had been previously raped, and that the defendant knew

about that rape because he had been a suspect in it. Id. But

the state had presented only general evidence about the

vulnerability of rape victims as a class. Id. While the state

showed that the victim had been previously raped, the state

did not put on evidence of how the rape had affected her spe-

cifically. Id. By contrast, here, there was evidence regarding

the specific conditions of D and T, and we are bound by the

trial court’s findings that D and T were extremely disabled.

Enemesio is thus unhelpful because, rather than being a

case on statutory overlap, it turned on the state’s failure to

present sufficient evidence.

Having established the possibility that some vic-

tims can be particularly vulnerable under OAR 213-008-

0002(1)(b)(B) in a manner that does not impermissibly over-

lap with a criminal statute defining a crime whose victims

are all vulnerable, we now turn to the particular vulnerabil-

ity alleged in this case: extreme disability. As the trial court

noted “there can be degrees of physical or mental disability.”

To be found guilty under ORS 163.205(1)(b)(D),

as pertinent to this case, the victim must be a dependent

person. Defendant argues that people who are dependent

because of their disability are exactly the class of person

that the statute is designed to protect. In essence, defen-

dant contends that there is only one class of possible victims

under ORS 163.205(1)(b)(D): people who are disabled in a

way that makes it so they cannot manage their finances.

Defendant thus implies that there is no possible gradation

within this class of people because every person who cannot

manage their finances due to disability would be vulnera-

ble to having their finances mismanaged by their caretaker,

meaning that there could not be criminal conduct that was

significantly different than what is usual for this crime.

Defendant’s argument implicitly requires us to

define dependency to include a requirement of financial

dependency. But a “dependent person” is defined as being

“dependent upon another to provide for the person’s phys-

ical needs.” ORS 163.205(2)(b) (emphasis added); see State

v. Berry, 293 Or App 717, 725, 429 P3d 1011 (2018) (defin-

ing physical needs under ORS 163.205(2)(b) as bodily needs

194 State v. Palmer

such as food and hygiene). We thus understand dependency

under ORS 163.205 to be defined without consideration of

the level of the victim’s financial dependence.

That definition reflects that not all physically

dependent persons need assistance with their finances, nor

will all need the same level of assistance. A caretaker could

violate ORS 163.205(1)(b)(D) even if the dependent person

was competent to manage their own finances, such as by a

caretaker stealing items from the dependent person’s home.

Even where a caretaker is entrusted with some financial

responsibility, a victim might not be particularly vulnera-

ble because they might remain able to pursue a caretaker

for embezzled funds despite their disability and dependency.

We conclude that there is a gradation in criminal conduct

under ORS 163.205(1)(b)(D), such that there could be con-

duct which is significantly different from the usual conduct

under the statute.

Here, the victims were not capable of independently

holding defendant accountable. Indeed, defendant’s mis-

conduct went unnoticed for years because the victims were

utterly unable to manage their affairs. Their disabilities

were extreme. Thus, the trial court could have found that

defendant’s conduct was significantly different than the

usual criminal conduct required for conviction under ORS

163.205(1)(b)(D), and that the finding of the vulnerable vic-

tim aggravator was not duplicative.

In sum, defendant admitted that her victims were

particularly vulnerable. The trial court in turn found that

the victims were particularly vulnerable by reason of their

extreme disability. We conclude that the trial court did not

err as a matter of law by imposing upward dispositional

departure sentences on the basis that defendant’s victims

were particularly vulnerable.

Affirmed.