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State ex rel Juvenile Department of Washington County v. Saechao5/10/2000
Argued and submitted January 31, 2000.
Affirmed.
Landau, P. J., concurring in part; dissenting in part.
Youth appeals from an order finding him within the jurisdiction of the juvenile court because of acts that, if committed by an adult, would constitute the crimes of riot, assault in the third degree and disorderly conduct. ORS 166.015; ORS 163.165; ORS 166.025. Youth contends that the state failed to prove beyond a reasonable doubt one or more of the elements of each of the charged offenses. We review the juvenile court's orders de novo. ORS 419A.200(5); ORS 19.415(3). The juvenile court accepted the version of facts to which the alleged victim testified, we give due deference to the court's credibility determination. State ex rel Juv. Dept. v. Millican, 138 Or App 142, 144, 906 P2d 857 (1995), rev den 323 Or 114 (1996). We affirm.
Vinh Huynh attended Century High School in 1997, as did youth and his four cousins, Ou Saechao, San Pu Saechao, Michael Saephanh, and Nay Saephanh. On October 3, Vinh complained to a school official that he was being harassed by other students. As a result, two school vice principals met with Michael that day and told him that such behavior would not be tolerated. Michael told the officials that he was "not responsible for other people." One of the vice principals, Mr. Orme, testified that he met with one of the two Sans, he believed it was youth, about the problem. Later that day, Michael confronted Vinh and accused him of complaining to the official about Michael's conduct. The boys went into the hallway to fight but were stopped by a teacher. After school the same day, Vinh was confronted at his school locker by Michael, youth and the other three cousins. The five cousins came up behind Vinh and were talking to each other in their native language, which Vinh did not understand. The cousins moved in front of Vinh and stood about six or seven feet away from him. A larger group of students also gathered near the scene but stood farther away. San Pu asked Vinh if he wanted to "finish it."
Vinh knew that something was going to happen, so he dropped his school bag and got ready. San Pu swung at Vinh, so Vinh struck San Pu. Ou then charged Vinh and hit him on the left side while Nay charged from the other side and began hitting Vinh as well. Vinh tried to run away but his escape was blocked by the locker wall. Nay then kicked Vinh, who fell to the ground. When Nay kicked Vinh, the other cousins, including youth, were "moving everywhere" and Vinh's attention was focused on them. When Vinh got to his feet, a teacher broke up the confrontation. Vinh tried to strike his attackers after the teacher intervened. Youth and his cousins ran from the scene. Vinh did not seek medical attention but suffered a bruised elbow and scratched forehead in the attack.
Because youth was part of the group that surrounded him, Vinh included youth's name on a list of people involved in the incident. Youth did not speak to Vinh during the confrontation and, because Vinh's head was down, Vinh did not know whether youth struck him. The juvenile court found youth, together with the other four cousins, within the court's jurisdiction on each of the charged offenses. Youth appeals from those findings and from the denial of his motion for acquittal on each charge. We turn first to the riot charge.
ORS 166.015(1) provides:
"A person commits the crime of riot if while participating with five or more other persons the person engages in tumultuous and violent conduct and thereby intentionally or recklessly creates a grave risk of causing public alarm."
Youth argues that the state failed to prove that he
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