State v. Lykins

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.