State v. Lykins
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FILED: November 20, 2013 IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, v. MICHAEL PAUL LYKINS, Defendant-Appellant. Washington County Circuit Court C100530CR, D101103M A146498 (Control) A146499 Steven L. Price, Judge. Submitted on November 27, 2012. Peter Gartlan, Chief Defender, and Neil F. Byl, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and Greg Rios, Assistant Attorney General, filed the brief for respondent. Before Ortega, Presiding Judge, and Haselton, Chief Judge, and Sercombe, Judge. ORTEGA, P. J. Affirmed. 1 ORTEGA, P. J. 2 Defendant appeals from a judgment of conviction that included, among 3 others, one count of tampering with a witness, ORS 162.285, assigning error to the trial 4 court's imposition of an upward departure sentence of 48 months' incarceration on that 5 count. Defendant contends that the trial court erred in concluding that both the state and 6 the witness were particularly vulnerable victims for purposes of applying the "vulnerable 7 victim" aggravating factor under OAR 213-008-0002(1)(b)(B).1 Specifically, defendant 8 argues that the state, not the witness, is the "victim" for purposes of the crime of 9 tampering with a witness and that the legislature did not intend for the "vulnerable 10 victim" aggravating factor to apply to the state. Defendant also contends that, even if the 11 state could be considered a particularly vulnerable victim under that rule, there were not 12 compelling reasons to depart from the presumptive sentence. The state responds that the 1 OAR 213-008-0002(1)(b)(B) provides: "(1) Subject to the provisions of sections (2) and (3) of this rule, the following nonexclusive list of mitigating and aggravating factors may be considered in determining whether substantial and compelling reasons for a departure exist: "* * * * * "(b) Aggravating factors: "* * * * * "(B) 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." 1 1 witness is, in fact, the victim for purposes of the rule and that the state provided 2 compelling reasons to depart.2 For the reasons that follow, we agree with the state and, 3 accordingly, affirm. 4 Because defendant was convicted, we summarize the facts in the light most 5 favorable to the state and provide only those facts that are relevant to the sentencing 6 issue. State v. Enemesio, 233 Or App 156, 158, 225 P3d 115, rev den, 348 Or 414 7 (2010). Defendant and the witness at issue, O'Connor, were in an intimate relationship in 8 2007 when defendant assaulted her. The police arrested him for the assault but, upon his 9 release from jail, he returned to O'Connor's residence and assaulted her again. When she 10 reported that assault to the police, defendant threatened to hurt her family unless she lied 11 to the police about it, so she told police that she had fallen. Eventually, however, 12 defendant went to prison for his crimes. 13 Upon his release from prison, defendant resumed his relationship with 14 O'Connor, staying at her apartment from time to time. After several months, however, 15 before leaving on a trip, O'Connor moved defendant's belongings onto the back porch and 16 told defendant that she did not want him staying at her apartment anymore. When she 17 returned from the trip to find that defendant had broken into her apartment, she called 18 police. Defendant was again arrested and sent to jail. 2 In addition, the state asserts that defendant's argument that the state is not a particularly vulnerable victim is unpreserved and that, in all events, the trial court did not err in identifying the state as a vulnerable victim for purposes of OAR 213-0080002(1)(b)(B). Given our disposition of the case, we need not address those arguments. 2 1 Defendant called O'Connor three times from jail. In the first call, defendant 2 pleaded with O'Connor to tell police that he had been living in the apartment with 3 permission and told her to explain that she had reported him because she was having 4 "delusions." 5 In the second call (about 10 minutes after the first), defendant asked 6 O'Connor to tell police that she might have left the door open and might have authorized 7 him to stay. He wanted them to "be together on this" in order to get him out of trouble. 8 O'Connor became frustrated with defendant's attempts to persuade her to change her story 9 and told defendant that she would not lie and that she was not a "crazy person." 10 Defendant inquired about which psychiatric medications O'Connor was still taking and 11 commented that she had stopped taking one of them the prior week. He asked O'Connor 12 about which medications she was taking during a third call as well. 13 Defendant was charged with several crimes, including three counts of 14 tampering with a witness. The jury found him guilty of two of those counts; verdicts on 15 those counts were merged into a single conviction. At sentencing, the state sought an 16 upward departure sentence based on, among others, the vulnerable victim aggravating 17 factor in OAR 213-008-0002(1)(b)(B). According to the state, defendant exploited 18 O'Connor's psychological frailty in order to attempt to induce her to testify falsely. The 19 state pointed to evidence of his phone calls to her from jail, in which he alluded to his 20 knowledge of her physical limitations, mental health issues, and medications. According 21 to the state, defendant was "clearly in a position [to know] that [O'Connor] was of a * * * 3 1 mental and physical, fragile, or limited state during this time period and [defendant] took 2 advantage of that * * *." Defendant argued in response that the state, and not the witness, 3 is the "primary victim" in a witness tampering case and that O'Connor was not a victim at 4 all, much less a vulnerable victim under the rule. 5 The court concluded in a letter ruling that both the state and O'Connor were 6 "victims" for purposes of the rule and that the state had proved the "vulnerable victim" 7 aggravating factor beyond a reasonable doubt. As to O'Connor, the court reasoned: 8 9 10 11 12 13 14 15 16 17 "* * * O'Connor is * * * a victim 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, * * * O'Connor was obviously distraught over [defendant's] efforts to pressure and manipulate her. Based on years of manipulating and taking advantage of * * * O'Connor, [defendant] knew of her particular vulnerability. This vulnerability increased the threat * * * of harm to which * * * O'Connor was subject, both in the short term (being successfully manipulated into testifying falsely) and in the long term (continuing in the abusive relationship with [defendant])." 18 The court then imposed an upward departure sentence of 48 months' incarceration on the 19 witness tampering conviction. 20 On appeal, defendant essentially renews his argument that neither the state 21 nor O'Connor was a "victim" under the rule. In defendant's view, the rule's reference to a 22 vulnerable victim must be to the "victim" for purposes of the substantive crime (here, 23 tampering with a witness). We recently considered a similar argument in State v. 24 Teixeira, 259 Or App 184, ___ P3d ___ (2013). There, the defendant asserted, in part, 25 that "victim" for purposes of the "multiple victims" aggravating factor under OAR 213- 26 008-0002(1)(b)(G) is congruent with "the victim of the crime for purposes of ORS 4 1 161.067." Teixeira, 289 Or App at ___ (slip op at 4).3 Thus, according to the defendant 2 in that case, the "victim" for purposes of the sentencing guidelines is the person who is a 3 victim within the meaning of the specific substantive statute defining the relevant 4 offense. The state, on the other hand, asserted that "victim" for purposes of sentencing 5 departures is defined by ORS 131.007, which provides: 6 7 8 9 "As used in * * * ORS chapters 136, 137 and 144, except as otherwise specifically provided or unless the context requires otherwise, 'victim' means the person or persons who have suffered financial, social, psychological or physical harm as a result of a crime * * *." 10 We concluded that the meaning of the term "victim" under the sentencing guidelines is 11 broader than urged by the defendant, but "narrower than the meaning of 'victim' under 12 ORS 131.007" urged by the state. Teixeira, 259 Or App at ___ (slip op at 11). Instead of 13 adopting either of those constructions, we examined the text, context, and history of the 14 rule and concluded that, for purposes of the sentencing guidelines, "a 'victim' is a person 15 who is directly, immediately, and exclusively injured by the commission of the crime-- 16 not persons injured only by subsequent, additional criminal conduct." Id. at ___ (slip op 17 at 19). 18 Here, we apply the definition of "victim" set forth in Teixeira in 19 considering the vulnerable victim aggravating factor under OAR 213-008-0002(1)(b)(B). 20 Based on that definition, we conclude that the trial court correctly concluded that 3 The crime at issue in Teixeira was burglary, and the "'victim' of a burglary for purposes of ORS 161.067(2) 'is the person who possesses the property interest violated.'" Teixeira, 259 Or App at ___ (slip op at 5) (quoting State v. Sanchez-Alfonso, 224 Or App 556, 564, 198 P3d 946 (2008), rev den, 346 Or 258 (2009) (emphasis in Teixeira)). 5 1 O'Connor was a victim of witness tampering for purposes of the sentencing guidelines. 2 In particular, as set forth above, the court concluded that O'Connor was a victim of 3 defendant's crime because "she suffered psychological and social harm as a result of 4 [defendant's] attempts to pressure her," she was "distraught over [defendant's] efforts to 5 pressure and manipulate her," and her vulnerability increased the threat of harm to which 6 she was subject, "both in the short term (being successfully manipulated into testifying 7 falsely) and in the long term (continuing in the abusive relationship with [defendant])." 8 Because O'Connor was "directly, immediately, and exclusively injured by the 9 commission of the crime," Teixeira, 259 Or App at ___ (slip op at 19), she is a victim for 10 11 purposes of the sentencing guidelines. The question remains, however, whether the court's findings of fact and its 12 reasons for justifying the departure are supported by evidence in the record and constitute 13 substantial and compelling reasons for departure as a matter of law. ORS 138.222(3); 14 State v. Wolff, 174 Or App 367, 369, 27 P3d 145 (2001). 15 We conclude that the trial court's explanation was sufficiently supported by 16 the evidence in the record. Again, OAR 213-008-0002(1)(b)(B) provides that the court 17 may impose an upward departure sentence if 18 19 20 21 22 "[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." As we explained in Enemesio, 6 1 2 3 4 5 6 "[t]hat factor qualifies as an aggravating factor only when 'the court determines that the offender's knowledge of or disregard for the victim's vulnerability increased the potential harm attributed to the offender's criminal conduct.' Oregon Sentencing Guidelines Implementation Manual 130 (1989)." 233 Or App at 161. 7 Here, the evidence in the record establishes that defendant and O'Connor 8 were in an intimate relationship when defendant assaulted her and that he assaulted her 9 again upon his release from jail. He contacted her several times from jail and made 10 repeated attempts to persuade her to lie to police. Those efforts included questioning her 11 mental health and whether she was taking her psychiatric medications. The evidence 12 establishes that O'Connor was particularly vulnerable, given her psychiatric issues, and 13 that she was distraught over defendant's attempts to pressure and manipulate her. 14 Defendant's comments regarding her mental health and medication establish that he was 15 aware of her vulnerability; as the trial court noted, he had "years of manipulating and 16 taking advantage of [her]." The court's findings and analysis are supported by the 17 evidence and constitute substantial and compelling reasons for departure. 18 Affirmed. 7
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