In the Matter of J. M. M., a Youth.
J. M. M., Appellant STATE OF OREGON, Respondent,
Argued and Submitted, Roosevelt High School, Portland
November 14, 2014
Douglas County Circuit Court. 1200295; Petition Number 13JU036. Julie A. Zuver, Judge pro tempore.
Angela Sherbo argued the cause and filed the brief for appellant.
Cecil A. Reniche-Smith, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.
[268 Or.App. 701] 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 [268 Or.App. 702] cited 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, ...