Is the Existence of a Victim a Legal or Factual Question?
by: Ryan • October 25, 2011 • no comments
In one of today's opinions, the Court of Appeals indicated its continuing support for State v. Sumerlin. Today's case was an appeal of an denial of post-conviction relief, so perhaps it didn't technically reaffirm Sumerlin, but certainly the court gave no reason to think the Sumerlin holding was in doubt.
Sumerlin stood for the proposition that there are as many different convictions for reckless endangering as there are victims. Each person who is put in danger is a victim. This is in contrast to crimes that are against the public at large, such as reckless driving or public indecency, neither of which has a discrete victim. Whether or not a crime has a victim impacts whether multiple counts of that same crime can merge into a single conviction.
However, there are times there is no victim at all in the crime of reckless endangering. As the Sumerlin court noted, and today's opinion reaffirmed, "[t]he [reckless endangering] statute covers potential risks as well as cases where a specific person is within the zone of danger." [Emphasis added.]
In other words, a person could be convicted of reckless endangering even if no one person was in the zone of danger, even if there were no victim, as long as the behavior constituted a "potential risk."
What Sumerlin has done, in effect, is made the existence of a victim a factual question. I'm not talking about being able to identify victims. You can have an unnamed victim of attempted murder (e.g., shots directed at someone who fled, who was never identified by the police) but there's still a victim. With Sumerlin, however, you might have a victim (if someone is in the zone of danger) or you might not have a victim (because the behavior created a potential risk but no one person was endangered).
And this is where I think Sumerlin got it wrong. As we have seen in Oregon Supreme Court merger cases, such as State v. Glaspey and State v. Luers, the existence of a victim isn't a factual question, it's a legal one. Whether or not the crime has a victim is entirely a legal question based on legislative intent. Assuming a crime has been proven, the facts of a case only help to determine who the victim is, not whether or not the crime itself has a victim.
But the Sumerlin court has converted the existence of a victim from a legal question to a factual question. This is, in my opinion, at odds with the Supreme Court precedent I cited above, although perhaps only implicitly so.
Reckless Endangering isn't the only place where this happens. Ryan's article , in State v. Mullens, the COA indicated that real people whose identity is stolen are victims of ID Theft, which leaves open the possibility that there is no victim when the identity taken belongs to an imaginary person. This then converts a legal question into a factual one: was the person on client's fake ID ("Richard Tubigge"*) a real or imaginary person? As I mentioned, I think converting the question from a legal one to a factual one is inconsistent - at least implicitly - with Glaspey and Luers.
* I had a friend in college who had a fake ID for the purposes of getting into bars that was in the name of Richard Tubigge. He thought the name was hilarious and probably I did too.
