State v. Flanigan
Opinion
The issue in this criminal case is the application of the offense subcategories of Burglary I provided in the Oregon sentencing guidelines, OAR chapter 253, division 4.
Defendant was charged with burglary in the first degree, ORS 164.225, 1 and robbery in the second degree, ORS 164.405. The accusatory instrument alleged that, during the commission of the burglary, “defendant caused or threatened physical injury to the * * * victim.”
A jury convicted defendant of burglary but acquitted him of robbery. In its verdict, the jury made a special finding that defendant personally did not cause or threaten to cause physical injury to the victim, but that he aided and abetted another person who engaged in that conduct. Based on that finding, the trial court placed defendant’s offense in Crime Category 7 on the sentencing guidelines Crime Seriousness Scale and sentenced him accordingly. 2
*332 The state appealed, arguing that a burglary in which the victim is physically injured or is threatened with physical injury properly is ranked at Crime Category 9, whether or not the defendant personally caused or threatened to cause the injury. The state argued that a defendant’s personal role in causing or threatening to cause physical injury to the victim is relevant only to the trial court’s determination whether to impose a “departure” sentence on the defendant. See OAR 253-03-001(5) and 253-08-002 (relating to the imposition of a sentence that departs from the presumptive sentence for an offense under the sentencing guidelines).
In response, defendant argued that the subclassification of burglary at issue in this case was based on “personal conduct of The offender’ ” and that he could not be held vicariously liable for the conduct of his accomplice in that regard. Defendant also cross-appealed, arguing that the trial court erred in admitting certain testimony by one of the state’s witnesses.
The Court of Appeals held that the trial court did not err in admitting the challenged evidence. State v. Flanigan, 114 Or App 50, 53, 834 P2d 472 (1992). The court also concluded that, because the jury found that defendant personally did not cause or threaten to cause physical injury to the victim, defendant’s burglary conviction could not be ranked at Crime Category 9 unless he could be held vicariously liable for the conduct of his accomplice. Ibid. Relying on its holding in State v. Lark, 113 Or App 458, 833 P2d 1286 (1992), the court held that a defendant “cannot be held vicariously liable for conduct that serves only to subclassify a crime under the sentencing guidelines.” 113 Or App at 53-54. We allowed the state’s petitions for review in this case and in State v. Lark in order to answer the question of regulatory *333 interpretation presented. 3 We affirm the decision of the Court of Appeals, in part on different grounds.
In State v. Lark, 316 Or 317, 851 P2d 1114 (1993), decided this date, this court examined the text of OAR chapter 253, division 4, Appendix 3, which sets forth the offense subcategories. We noted that some offense subcategories are based on factors that describe conduct of the offender, while other subcategories are based on factors that describe circumstances attendant on, or resulting from, the commission of the offense. 316 Or at 324. We concluded that that distinction in the manner of expression of the offense subcategory factors disclosed the intent of the State Sentencing Guidelines Board, the agency that promulgated the sentencing guidelines. Ibid. We held:
“When a factor describes conduct of the offender — such as, ‘the offender caused or threatened to cause serious physical injury to the victim’ — then the subcategory based on that factor applies to a defendant only if the defendant personally engaged in the described conduct.
“In contrast, when a factor describes a circumstance attendant on, or resulting from, the commission of the offense — such as, ‘the offense was committed in an occupied dwelling’ — then the subcategory based on that factor applies to a defendant whenever that circumstance attends, or results from, the commission of the offense, whether or not the defendant personally caused the circumstance. In this situation, it does not matter whether or not a defendant is convicted as a principal; it is enough that the circumstance, described in the factor on which the relevant offense subcategory is based, exists.”
Id. at 325.
We apply that holding to the offense subcategory at issue in this case. Defendant was convicted of burglary in the first degree. The offense subcategory factor relating to causing, or threatening to cause, physical injury to the victim of a burglary, describes conduct of the offender. The subcategory based on that factor applies to a defendant only if the defendant personally engaged in the described conduct.
*334 The jury in this case found that defendant did not engage in such conduct personally. That being so, the subcategory cannot be applied to him. The trial court did not err in placing defendant’s offense in Crime Category 7 or in sentencing him accordingly.
The decision of the Court of Appeals is affirmed, in part on different grounds. The judgment of the circuit court is affirmed.
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851 P.2d 1120 (State v. Flanigan) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.