State v. Enemesio

225 P.3d 115, 233 Or. App. 156, 2010 Ore. App. LEXIS 8
CourtCourt of Appeals of Oregon
DecidedJanuary 6, 2010
Docket070043CR, 060040CR; A136698, A137263
StatusPublished
Cited by7 cases

This text of 225 P.3d 115 (State v. Enemesio) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Enemesio, 225 P.3d 115, 233 Or. App. 156, 2010 Ore. App. LEXIS 8 (Or. Ct. App. 2010).

Opinion

BREWER, C. J.

This is a criminal case in which defendant was convicted of second-degree assault, ORS 163.175, fourth-degree assault, ORS 163.160, strangulation, ORS 163.187, and coercion, ORS 163.275. Following a bench trial, the trial court merged the second- and fourth-degree assault convictions. On appeal, defendant assigns error to the trial court’s rejection of his argument that the state did not present sufficient evidence to support his conviction for second-degree assault. We reject that assignment without discussion. Defendant also asserts that the trial court erred in imposing an upward departure sentence on the coercion conviction on the ground that the victim was particularly vulnerable. We agree with defendant on that point; accordingly, we affirm defendant’s convictions, but remand for resentencing.

Because defendant was convicted of the charged offenses, we recount the facts in the light most favorable to the state, State v. Johnson, 345 Or 190, 192, 191 P3d 665 (2008), setting out only those facts that are relevant to the sentencing issue or that are necessary to provide context. One cold February night, when the victim stepped onto her back porch to retrieve some firewood, defendant grabbed her from behind. As he grabbed her, he said that, if she “told,” he would “come back for [her] kids.” It was that conduct that formed the basis for the coercion conviction. Defendant then assaulted and strangled the victim, which led to his other convictions.

In the indictment, the state alleged four aggravating sentencing factors that applied to all counts, including the coercion count: (1) that the crimes involved deliberate cruelty to the victim; (2) that defendant knew or had reason to know of the victim’s particular vulnerability; (3) that defendant showed a lack of remorse; and (4) that defendant was on supervision at the time of the current crimes.

As noted, following a trial to the court, defendant was convicted of the crimes set out above. The only crime that is relevant to the issue we address on appeal is coercion, which is defined by ORS 163.275(1):

[159]*159“A person commits the crime of coercion when the person compels or induces another person to * * * abstain from engaging in conduct in which the other person has a legal right to engage, by means of instilling in the other person a fear that, if the other person * * * engages in conduct contrary to the compulsion or inducement, the actor or another will:
“(a) Unlawfully cause physical injury to some personf.]”

At sentencing, the state asked the court to impose an upward departure sentence on the coercion conviction. The state relied on, among other factors, OAR 213-008-0002(l)(b)(B): “The offender knew or had reason to know of the victim’s particular vulnerability, such as the extreme youth, age, disability or ill health of victim, which increased the harm or threat of harm caused by the criminal conduct.” The state presented testimony from a detective who had investigated both the crimes in this case and a rape of the victim that had occurred about a year before these crimes were committed. The detective testified that he had interviewed defendant as a “person of interest” at the time of the earlier rape. Although another person was convicted of that crime, the point of the testimony was that, at the time he committed the crimes in this case, defendant was aware that the victim previously had been raped.

On cross-examination, defense counsel asked the detective about the victim’s particular vulnerability:

“Q. —What is [the victim’s] particular vulnerability?
“A. Her vulnerability? I don’t understand, you know. Being home alone? You know, whether that’s vulnerable or not, I don’t know what you’re getting at for sure.
“Q. Okay, so you’re not aware of any particular condition that she was suffering regarding this [previous rape]?
“A. I’m sure it has a lasting effect on everybody—
“Q. No, I know, and I’m asking you specifically for [the victim]?
‘A. Yeah. Not that I know of;

[160]*160On redirect examination, the prosecutor attempted to elicit additional testimony that would support the “vulnerable victim” aggravating factor:

“Q. Well, Detective, in your training and experience, are you aware of the long lasting vulnerability or harm that is suffered by victims of sex crimes?
“A. Yes, I am.
“Q. And could you describe a little bit to the Court what your knowledge is with respect to that?
“A. Just that it’s long lasting, and it has obviously various kinds of psychological and physical problems, that they can — you know, it can go on for years, you know, depending on the person and the kind of treatment that they get for those — you know, type of things.”

Following argument, the prosecutor requested that the court find all four of the aggravating factors alleged in the indictment: “I’d ask the Court to use the aggravating factors, specifically two of the four aggravating factors, any two, but I’d still ask the Court to find that all four of the aggravating factors alleged are present in this case.” Defense counsel argued that the state had failed to prove any of the aggravating factors, including the “vulnerable victim” factor. Defense counsel also argued for the application of at least one mitigating factor.

The trial court found that the state had proved the “vulnerable victim” factor beyond a reasonable doubt: “I will accept as an aggravating factor that [defendant] was aware that [the victim] was particularly vulnerable in that she had been subjected to a sexual assault at virtually the same place within the year before.” The court also found that the state had proved the deliberate cruelty factor and the factor that defendant was on supervision at the time of the crimes. Based on finding one mitigating factor (that defendant cooperated with the prosecution) and three aggravating factors, the court imposed an upward departure sentence of 16 months’ incarceration on the coercion conviction; the presumptive sentence for that crime is 36 months of probation. The court ordered that the sentence be served consecutively to the sentence imposed on the assault conviction.

[161]*161On appeal, defendant argues that the state failed to prove that defendant knew or had reason to know that the victim was particularly vulnerable and that the vulnerability increased the harm or threat of harm caused by defendant’s criminal conduct. Defendant acknowledges that he knew that the victim had been raped. But that, he argues, is not enough. He asserts that the state failed to adduce any evidence as to how the victim, in particular, was affected by the sexual assault.

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Cite This Page — Counsel Stack

Bluebook (online)
225 P.3d 115, 233 Or. App. 156, 2010 Ore. App. LEXIS 8, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-enemesio-orctapp-2010.