State v. Palmer

“[T]here 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.”

State v. Palmer, 336 Or App 187 (2024).

Defendant was convicted for three counts of first-degree theft and two counts of first-degree criminal mistreatment for embezzling disability income. An upward dispositional departure was imposed on the latter due to the victims’ disabilities. Defendant appeals, arguing that the crime of criminal mistreatment due to theft is not significantly different from the aggravating factor of particular vulnerability. The state argues the aggravating factor is distinct due to the depth of the victims’ disabilities. If an aggravating factor overlaps with the statute of conviction to a substantial degree, it cannot be the basis for a departure. The court found that the criminal mistreatment statute contemplated physically dependent victims, and that the victims were fiscally dependent on Defendant. The court reasoned that some victims under the same statute are more vulnerable than others; and that some victims who are physically dependent on caretakers are not also fiscally dependent on the caretakers. The Court held the vulnerable victim aggravating factor was therefore, not duplicative.