State v. McMillin

When determining who is the victim of a crime, “the court examines the statute to identify the gravamen of the crime and determine the class of person whom the legislature intended to directly protect by ay of the criminal proscription. State v. Moncada, 241 Or App 202, 250 P3d 31 (2011), rev den, 351 Or 545 (2012). Under ORS 161.165(1), “a person is not criminally liable for the conduct of another constituting a crime if” the “person is a victim of that crime.”

Defendant appealed a judgment conviction for two counts of delivery of marijuana to a minor and one count of tampering with a witness. Defendant assigned error to the trial court’s denial of his motion to merge the two counts of delivery of marijuana to a minor and the trial court’s denial to instruct the jury that the minor witnesses were accomplices to his delivery crime. On appeal, Defendant argued that the victim of the crime he was convicted of was the State and not the minors; meaning there was only one victim, so the anti-merger provision did not apply. Additionally, Defendant argued that because the marijuana he provided to a minor was then passed from that minor to another minor, a jury could conclude that each minor acted as an accomplice. In response, the State argued that in reading the applicable statutes, the legislature intended that minors were the victims of the crime and because minors are the victims, they can not be criminally liable as an accomplice. When determining who is the victim of a crime, “the court examines the statute to identify the gravamen of the crime and determine the class of person whom the legislature intended to directly protect by way of the criminal proscription. State v. Moncada, 241 Or App 202, 250 P3d 31 (2011), rev den, 351 Or 545 (2012). Under ORS 161.165(1), a person is not criminally liable for another's conduct that constituted a crime if that person is the victim of that same crime. The Oregon Court of Appeals concluded that because it has been established that minors are the victims of the crime, the minors could not have been accomplices, so the trial court did not err on either of Defendant’s assignments of error. 

Affirmed.