State v. J. M. M.

342 P.3d 1122, 268 Or. App. 699, 2014 Ore. App. LEXIS 1865
CourtCourt of Appeals of Oregon
DecidedJanuary 28, 2015
Docket1200295; Petition Number 13JU036; A154011
StatusPublished
Cited by4 cases

This text of 342 P.3d 1122 (State v. J. M. M.) 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. J. M. M., 342 P.3d 1122, 268 Or. App. 699, 2014 Ore. App. LEXIS 1865 (Or. Ct. App. 2015).

Opinion

GARRETT, J.

In this juvenile delinquency case, youth seeks reversal of a judgment finding him within the jurisdiction of the juvenile court for acts that, if committed by an adult, would constitute one count of first-degree theft, ORS 164.055, and one count of second-degree burglary, ORS 164.215. Youth argues that the evidence was insufficient to prove beyond a reasonable doubt that he aided and abetted any crime. We agree and reverse the judgment.

A church building was broken into, and several items of value were taken. Surveillance video showed four people outside the building between 10:00 p.m. and 11:00 p.m. on the night of the break-in. One of them was youth. The video showed the other individuals carrying items away from the church, but youth was not carrying anything. The state proceeded against youth on a theory of accomplice liability, and presented testimony from Officer Sheldon, who investigated the break-in and interviewed youth:

“[SHELDON:] *** [I]n my conversation with him I asked about the burglary. He knew about the burglary. He stated that he had been standing outside towards the back door of the place. That he actually did not want to be a part of the burglary but that he knew about the burglary and that he knew, you know, when they took the items away and everything. I advised him that because you did not report this, you did not walk away from it, you stayed there, you know, and I even used the term kind of like, ‘Were you like a lookout?’ And he kind of shook his head no. And I said, ‘So kind of back watching out for us to see if we were coming?’ And he goes ‘noooo,’ like that. And I go, ‘But you were there?’
“‘Yes, I was there.’
“‘You knew about it. You knew about the planning of it, you know. By being there do you understand that that makes you a conspirator to the crime.’
“And he goes, ‘Yeah, I know.’
“And so I felt that he was actually being very honest with me and up front to that point and so I told him, I said, ‘Listen, I’m going to kind of reward you for this. I’m not tak[ing] you in,’ because I knew he was on probation, and I [702]*702cited and released him at the scene, and, obviously, I had to contact [youth’s probation officer] and let [him] know. And so that was done. But, anyway, he — and then I was able to support that through another statement that he did stay at the back door.
“[PROSECUTOR:] Okay. And but he said he knew of the planning?
“[SHELDON:] Yes.
“[PROSECUTOR:] Did he say if he was there when they planned it?
“[SHELDON:] Yes, they were all — all parties were together when they — and everybody kind of leaned towards Michael, the head person on this whole thing, the one that kind of thought it up * * *. So, but, yeah, all four of the kids were together when it was thought up.
“[PROSECUTOR:] And at any time did [youth] say that he told him it wasn’t a good idea, you shouldn’t do it?
“ [SHELDON:] Not to my recollection, no.
“[PROSECUTOR:] And he never once told you that he tried to—
“[SHELDON:] No.
“[PROSECUTOR:] —breakaway.
“[SHELDON:] No. He stayed there until it was done, until they were done.
“[PROSECUTOR:] And he never said that he was forced to be there in any way?
“[SHELDON:] No.
«Hj * * *
“[SHELDON:] *** I said, ‘Do you understand this?’ And [youth] said ‘yes.’ So that’s, you know, I go, ‘Do you understand this makes you part of the crime?’ And he goes ‘yes.’”

On cross-examination, Sheldon further testified:

“[DEFENSE COUNSEL:] And you believed what [youth] said, though, too?
“[SHELDON:] Yeah. I had no reason to doubt.
[703]*703“[DEFENSE COUNSEL:] Okay. Andit was — his statements were corroborated by the rest of your investigation?
“[SHELDON:] By one of the other individuals—
“[DEFENSE COUNSEL:] Okay.
“[SHELDON:] —that I took a statement from.”

At the close of the state’s case, and again in closing argument, youth moved for a judgment of acquittal, arguing that the evidence established only that youth knew about the planning of the crime and was present while the crime was committed, which was insufficient for liability. The juvenile court denied the motion and ruled as follows:

“Well, Officer Sheldon did clearly testify that [youth] was present and he told him that he was present at the planning. He clearly knew that this was going to happen, which he admitted, and although I appreciate [youth’s] honesty that he knew it was going to happen, he didn’t take any effort not to be there. It’s not okay to say, well, I’m just going to stand outside while you guys burglarize this and I know we’re all going to go and do this but I’m going to stand outside because I don’t want to be part of it. That’s not going to relieve one of one’s responsibility when one is part of the planning, participates, goes there, stands outside, leaves with. All of that is on videotape. I believe that [youth] did, in fact, aid and abet in the theft and the burglary and I am going to find that he did commit those crimes.”

On appeal, youth reprises his argument that the evidence was insufficient to establish his guilt beyond a reasonable doubt.

Youth requests that we review this appeal de novo, as we have the discretion to do in juvenile and other equitable proceedings. ORS 19.415(3)(b); ORAP 5.40(8)(a), (b). We exercise such discretion sparingly and only in exceptional cases. Dept. of Human Services v. M. E. (A150359), 255 Or App 296, 298, 297 P3d 17 (2013). Youth has not identified a reason why this is an exceptional case, and we do not perceive one. Accordingly, we apply our ordinary standard of review, under which we are bound by the juvenile court’s findings of fact if they are supported by evidence in the record, and we review the juvenile court’s legal conclusions [704]*704for errors of law. Dept. of Human Services v. C. Z., 236 Or App 436, 442, 236 P3d 791 (2010).

ORS 161.155 provides:
“A person is criminally liable for the conduct of another person constituting a crime if:
«* * * * *
“(2) With the intent to promote or facilitate the commission of the crime the person:
«Hi * * * *

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Cite This Page — Counsel Stack

Bluebook (online)
342 P.3d 1122, 268 Or. App. 699, 2014 Ore. App. LEXIS 1865, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-j-m-m-orctapp-2015.