State v. Lykins, 348 P.3d 231

Defendant Michael Lykins was convicted of tampering with a witness (ORS 162.285) after calling his girlfriend (O’Connor) from jail and urging her to give false testimony about his presence in her apartment.
At sentencing the state sought an upward durational departure under OAR 213-008-0002(1)(b)(B), arguing O’Connor was a “vulnerable victim” whose frailty increased the harm or threat of harm.
Defendant objected, arguing a witness in a tampering prosecution is not a "victim" for purposes of that departure factor because the substantive offense protects the state/public justice system, not an individual witness.
The trial court found both the state and O’Connor were victims for the rule and imposed a 48-month durational departure; the Court of Appeals affirmed by adopting a broader definition of “victim.”
The Oregon Supreme Court granted review, concluded the witness was not a “victim” of the tampering offense for purposes of OAR 213-008-0002(1)(b)(B), reversed the Court of Appeals, vacated the sentence, and remanded for resentencing.

Issue	State's Argument	Lykins' Argument	Held
1) What does “victim” mean in OAR 213-008-0002(1)(b)(B)?	"Victim" should be read broadly (ordinary dictionary sense) to include anyone directly harmed by the defendant’s criminal conduct, including a tampered witness.	"Victim" should be read with reference to the substantive offense being sentenced; for tampering the victim is the state/public justice system, not the witness.	The rule’s "victim" means the person/entity the substantive statute protects; here the witness is not a victim of ORS 162.285.
2) Could the court use OAR 213-008-0002(1)(b)(B) to justify an upward departure here?	The court may apply the vulnerable-victim factor because O’Connor suffered psychological harm and defendant knew of her vulnerability.	The factor is inapplicable because it refers to the victim of the offense of conviction, and tampering’s victim is the state.	No: because the witness is not a victim of tampering, the vulnerability factor could not support departure on this conviction.

State v. McClure, 355 Or 704 (2014) (describes framing facts in the light most favorable to the state after conviction)
State v. Teixeira, 259 Or App 184 (2013) (Court of Appeals adopted broader "victim" definition for another guideline provision)
State v. Glaspey, 337 Or 558 (2004) (interpreting "victim" by reference to the substantive offense’ elements)
State v. Bea, 318 Or 220 (1993) (party concessions on legal questions not binding on court)
State v. Speedis, 350 Or 424 (2011) (background on sentencing guidelines and role of departures)
State v. Gaines, 346 Or 160 (2009) (methodology for statutory and regulatory interpretation)
Wetherell v. Douglas County, 342 Or 666 (2007) (same interpretive approach applies to administrative rules)
State v. Lopez-Minjarez, 350 Or 576 (2011) (use of definite article to indicate particular/known referent)
Force v. Dept. of Rev., 350 Or 179 (2011) (similar grammatical/semantic reasoning about definite article)
PGE v. Bureau of Labor and Industries, 317 Or 606 (1993) (same-term usage across related provisions suggests same meaning)
Tharp v. PSRB, 338 Or 413 (2005) (same-term reasoning when provisions enacted together)