State v. Lykins

Under ORS 162.285, the victim of the crime of tampering with a witness is the state in its official capacity as administrator of justice. Under OAR 213-008-0002, a convicted defendant is subject to aggravated sentencing when the direct victim of the substantive crime is “particularly vulnerable.”

Defendant appealed the court of appeals’ affirmance of the trial court’s imposition of an aggravated sentence against Defendant for his conviction of tampering with a witness. The trial court imposed an upward departure of Defendant’s sentence under OAR 213-008-0002 after determining that the witness’ mental illness made her a “particularly vulnerable” victim of Defendant’s crime. On review, the Court addressed whether a witness is a “victim” under ORS 162.285 or under OAR 213-008-0002. Defendant argued that under ORS 162.285, the victim of witness tampering is the state, rather than the witness. The State argued that the witness is an incidental victim of the crime, and therefore, qualifies as a “victim” under OAR 213-008-0002. After reviewing the legislative history, intent, and context of ORS 162.285, the Court determined that the victim of the crime of witness tampering is not the witness itself, but rather the state, in its official capacity as administrator of justice. The Court further held that, under OAR 213-008-0002, a “vulnerable” victim providing cause for upward departure of a criminal sentence must be the victim of the substantive crime for which the defendant is charged. Accordingly, the Court reversed the decision of the court of appeals, vacated the trial court’s sentence and remanded the case to the trial court for resentencing.