Persistent Involvement, part 2
What is a "similar" offense, as required by the OAR on "persistent involvement"?
OAR 253-08-002(1)(b)(D) does not define "similar offenses." The commentary says that the "similar offenses" aggravating factor need not involve the "same" offense. The determination of what is similar requires consideration of the nature of the offenses:
"EXAMPLE: If an offender has an extensive record of fraud-related convictions and he or she has been convicted for a similar fraud scheme, the sentencing judge may impose an aggravated departure sentence. Such a departure would be most appropriate if the offender's criminal conduct demonstrated a significant level of sophistication and his or her criminal history strongly suggests that the offender will continue to engage in such illegal enterprises. "EXAMPLE: A departure sentence might also be appropriate under this paragraph for an offender convicted of ORS 163.125 Manslaughter II arising from a domestic dispute if that offender also has an extensive record of domestic violence. The prior history of domestic violence does not need to be represented in the offender's criminal history record to be cited as an aggravating factor."
Commentary, Oregon Sentencing Guidelines Implementation Manual 130 (1989).
Note that "similar" does not mean "all person crimes are similar" or "all property crimes are similar." Manslaughter in the second degree is only similar to an assault if both arise of domestic violence situations. Implicitly, a DUII/manslaughter situation cannot be enhanced by prior assaults arising out of schoolyard fights or domestic violence.
Similarly, it appears from the first example that it's the existence of "fraud" that justifies an upward departure, not the mere existence of property related crimes. Implicitly, an unlawful use of a vehicle or a criminal mischief would not automatically serve as a basis for upward departing on an embezzlement case.
Now, here's where this gets tricky. In my opinion, not enough trial attorneys are taking these upward departure arguments to a jury, and I understand the logic why, but you lose appellate issues. For example, if the state is trying to get in prior convictions as evidence of persistent involvement in the sentencing phase, and you've lost the motion to keep them out (on the grounds that they are too dissimilar and therefore irrelevant), you are still entitled to a jury instruction on what constitutes "similar" offenses. Pretty much your only guide in writing that instruction are those two examples from the commentary.
What are the odds that you, the prosecutor and the judge will agree on a definition of "similar?" And if you can't, what are the odds of the instruction the judge gives being one that will satisfy the appellate courts? Who knows? And as I've discussed numerous times before, an incorrect jury instruction - or the failure to give a correct one - are the most statistically favorable ways to obtain a reversal.