Oregon v. Lykins
Annotate this CaseDefendant Michael Lykins was convicted of the crime of tampering with a witness after he tried to persuade his girlfriend to testify falsely in his impending trial on charges of criminal trespass and criminal 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. 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. The Supreme Court, however, reversed and remanded. Because the word "victim" was not expressly defined for purposes of the departure rule, defendant urged the Court to interpret that word by reference to the substantive offense for which the defendant is being sentenced. 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 vulnerability, * * * which increased the harm or threat of harm caused by the criminal conduct," the term "victim" had the same meaning as it has in the relevant statutory provision defining 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. The girlfriend was not a victim of that crime; it followed 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).
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