In re W.E.M.

               THE UTAH COURT OF APPEALS

           STATE OF UTAH, IN THE INTEREST OF W.E.M.,
            A PERSON UNDER EIGHTEEN YEARS OF AGE.


                            W.E.M.,
                           Appellant,
                               v.
                         STATE OF UTAH,
                           Appellee.

                            Opinion
                        No. 20150681-CA
                    Filed December 30, 2016

      Third District Juvenile Court, Salt Lake Department
                 The Honorable Mark W. May
                          No. 1108641

              Joseph C. Rust, Attorney for Appellant
         Sean D. Reyes and William M. Hains, Attorneys
                         for Appellee

 JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES
   STEPHEN L. ROTH and MICHELE M. CHRISTIANSEN concurred.

TOOMEY, Judge:

¶1     W.E.M. appeals his adjudication for assault against a
school employee, a class A misdemeanor if committed by an
adult. See 

 (LexisNexis 2012). We
vacate the juvenile court’s adjudication and remand with a
direction to enter an adjudication for the lesser included offense
of simple assault.
                          In re W.E.M.


                        BACKGROUND

¶2      W.E.M. often arrived early to his junior high school. To
pass the time before class began, W.E.M. and his friends usually
walked the halls or sat and talked with one another, and
sometimes they engaged in horseplay. The friends had
developed a ‚bumping game,‛ in which one friend bumped into
or pushed another friend, causing the person being bumped in
turn to bump into other people passing by. W.E.M.’s friend, K.J.,
testified that the game involved bumping into random people,
but W.E.M. said the game was only among those in their group
of friends.

¶3     One morning in December 2014, W.E.M. was walking the
crowded hallways with K.J. and another friend. As they walked
down the hall, K.J. bumped W.E.M. several different times,
pushing him into passersby. An assistant principal (Principal),
who was patrolling the hallways with a teacher, walked down
the hall toward W.E.M. and K.J. As Principal passed them, K.J.
pushed W.E.M., and W.E.M., in one fluid motion, lowered his
shoulder and struck Principal. This threw her off balance, and
she felt pain in her arm, ‚like . . . when someone hits your arm
hard.‛ Principal saw W.E.M. run into her, though she did not see
K.J. After the incident she looked behind her ‚to make sure *she+
knew who did [it,] and saw W.E.M.‛ When she reported the
encounter she characterized it as a ‚shoulder check*+.‛

¶4     Although W.E.M. knew Principal and had interacted with
her in her role as an administrator, he testified that he did not
see her before he struck her and that after the impact he ‚turned
around to see who it was.‛ K.J. also testified that he did not see
Principal before he pushed W.E.M. in her direction.

¶5     The State sought to adjudicate W.E.M. delinquent for
assault against a school employee. At a bench trial, the juvenile
court made the following findings:




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     [Principal] was an assistant principal at [the junior
     high school]. W.E.M. knew [Principal] was a school
     employee and had had dealings with her in the
     past in that capacity. W.E.M. engaged in what I
     will call the bumping game with his friends on
     more than one occasion. W.E.M. knew that the
     bumping game could result in someone getting
     hurt.

     [One day in December], W.E.M. and his friends
     were . . . playing the bumping game at the [junior
     high school]. At least three incidents of the
     bumping game occurred that morning, one before
     the incident involving [Principal], the incident
     involving [Principal] and the one after the incident
     with [Principal]. And while playing the bumping
     game W.E.M. dipped his shoulder and struck
     [Principal]. The force of the impact knocked her off
     balance. She felt as if she had been hit hard and [it]
     caused her bodily pain.

     [One of the] requirements for assault against a
     school employee is that [a person must assault] a
     public employee. So we have to look at what
     assault is. The definition of assault is an act
     committed . . . with unlawful force or violence that
     causes bodily injury to another or creates a
     substantial risk of bodily injury and bodily injury is
     defined as pain. So there was an assault [on] an
     employee. W.E.M. again had knowledge that the
     individual was an employee. The employee was
     acting in the scope of her authority as she’s
     testified and I’ll find also that she was walking up
     and down the halls as was one of her normal
     obligations as an assistant principal.




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Based on these findings, the juvenile court adjudicated W.E.M.
delinquent for this offense. W.E.M. appeals this determination.


             ISSUE AND STANDARD OF REVIEW

¶6      W.E.M. raises several different issues on appeal, but the
central basis of his argument is that there was insufficient
evidence for the juvenile court to adjudicate him delinquent for
assault against a school employee. Challenges to the sufficiency
of the evidence are reviewed for clear error. See State v. Finlayson,

, 

. ‚When reviewing a bench
trial for sufficiency of the evidence, we must sustain the trial
court’s judgment unless it is against the clear weight of the
evidence, or if [we] otherwise reach[] a definite and firm
conviction that a mistake has been made.‛ 

 (alterations in
original) (citation and internal quotation marks omitted).


                            ANALYSIS

¶7     W.E.M. contends there was insufficient evidence to
establish an assault against a school employee, arguing he did
not know at the time of the incident that the person he struck
was a school employee.1



1. W.E.M. also contends there was insufficient evidence to
establish he intended to assault a school employee. This
argument appears to have two parts. He asserts there was
insufficient evidence to show he knew he was assaulting a
school employee; we address this issue in paragraphs eleven
through seventeen. W.E.M. also argues there was insufficient
evidence to establish the requisite culpable mental state for this
offense; we address this issue in paragraph twenty-three. W.E.M.
raises other issues in his brief, but because we determine that the
evidence was insufficient to adjudicate W.E.M. delinquent for
                                                     (continued…)


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¶8     As stated, this court will not vacate a trial court’s
judgment ‚unless it is against the clear weight of the evidence‛
or unless this court reaches ‚a definite and firm conviction that a
mistake has been made.‛ State v. Larsen, 

,

 (citation and internal quotation marks omitted).
‚However, before we can uphold a conviction it must be
supported by a quantum of evidence concerning each element of
the crime as charged from which the [factfinder] may base its
conclusion of guilt beyond a reasonable doubt.‛ 

 (alteration in
original) (citation and internal quotation marks omitted). Any
legal conclusions underlying the juvenile court’s findings are
reviewed for correctness. 

¶9     To establish that W.E.M. committed an assault against a
school employee, the State was required to prove beyond a
reasonable doubt that W.E.M. ‚assault*ed+ an employee of a
public or private school, with knowledge that the individual
[was] an employee, and when the employee [was] acting within
the scope of [her] authority as an employee.‛ See 

(1) (LexisNexis 2012).

¶10 W.E.M. does not challenge the court’s findings that
Principal was an employee of the school and that she was acting
within the scope of her authority when the incident occurred.
But he contends there was insufficient evidence to establish that
he assaulted Principal knowing, as the assault occurred, that he
was assaulting a school employee. W.E.M. also contends there
was insufficient evidence to find the assault was voluntary.




(…continued)
assault against a school employee and vacate the determination
of the juvenile court on this basis, we need not reach these other
issues on appeal. See infra ¶¶ 11–17.



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I. There Is Insufficient Evidence Establishing That W.E.M. Knew
              He Was Assaulting a School Employee.

¶11 W.E.M. argues he did not know the identity of the
individual he struck when he bumped Principal, and that the
State therefore did not meet its burden of proving every element
of the offense beyond a reasonable doubt.

¶12 The statute requires that the assault be ‚with knowledge
that the individual is [a school] employee.‛ 

(1). The State asserts this element does not require
that a person specifically target an employee based on her school
employment or intend to assault a school employee based on
this status. Instead, the State argues the statute requires the
person to be aware of the victim’s status at the time of the assault.

¶13 The State asserts there was sufficient evidence to
demonstrate that W.E.M., at the time of the assault, was aware of
the identity of the victim. The State postulates that because
W.E.M. was acquainted with Principal and had interacted with
her in her role as an administrator, it is reasonable to infer that if
W.E.M. saw Principal before he struck her, he would have been
aware that he was striking a school employee. So, in order to
prove that W.E.M. knew the identity of the victim at the time of
the assault, the inquiry becomes whether W.E.M. saw Principal
before he struck her. Next, the State argues that there is sufficient
evidence from which the court could infer that W.E.M. saw
Principal before the incident.

¶14 We agree the statute requires W.E.M. to be aware of the
victim’s status at the time of the assault. We also agree with the
State that if there is sufficient evidence that W.E.M. saw
Principal before the collision, then there is sufficient evidence for
the juvenile court to infer W.E.M. was aware of the victim’s
status as a school employee at the time of the assault. However,
we disagree that there is sufficient evidence from which the
court could infer W.E.M. saw Principal before the collision.



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¶15 The State argues there is sufficient evidence that W.E.M.
saw Principal because they were walking down the same hall
toward each other and a surveillance video establishes there was
a period as long as twelve seconds for W.E.M. to see and
recognize Principal before he struck her. Additionally, Principal
testified that before the assault ‚W.E.M. was walking toward
[her],‛ which indicates that she saw W.E.M. before the incident.

¶16 But this evidence establishes only a possibility that
W.E.M. could have seen Principal before he struck her, not that
he actually saw her. Though Principal testified she saw W.E.M.
before the collision, her testimony offered no details that would
support an inference that W.E.M. saw her.2 The inference that
W.E.M. saw Principal also controverts W.E.M.’s direct testimony
that he did not see Principal before the collision and that he had
to turn around to identify who he had struck. In addition, K.J.
testified that he did not see Principal before the incident, and
Principal testified that she did not see K.J., even though he was
walking right beside W.E.M. at the time of the incident. The State
also concedes that the ‚window of opportunity‛ that W.E.M.
had to see and recognize Principal while they were walking
toward each other could have been as brief as two seconds.
Finally, the surveillance video shows the halls were crowded
when the incident occurred, obstructing long-distance views,
which supports an inference opposite to the one urged by the
State.

¶17 The slight possibility that W.E.M. saw and recognized
Principal coming down a crowded hallway contradicts the
evidence from the surveillance video; the testimonies of W.E.M.
and K.J., who both said they did not see her; and Principal’s own
testimony that she did not see K.J. Thus, the inference that
W.E.M. knew he was striking Principal is against the clear


2. For example, Principal did not testify that she and W.E.M.
made eye contact.



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weight of the direct evidence. See State v. Larsen, 

, 

 (citation and internal quotation marks
omitted).

¶18 Moreover, there is no indication that the court, when it
made its findings, drew the inference the State urged. The record
seems to indicate that the juvenile court had a different
understanding of the statute’s requirement that the assault be
‚with knowledge that the individual is an employee.‛ 

 (LexisNexis 2012).

¶19 As indicated above and as the State concedes on appeal,
the plain language of the statute requires that the assault be with
knowledge that the individual is a school employee. See supra
¶ 12; see also Salt Lake County v. Holliday Water Co., 

, 

 (‚When interpreting statutes, we look first to
the plain language of the statute, and give effect to that language
unless it is ambiguous.‛ (citation and internal quotation marks
omitted)). This requires not only that W.E.M. be acquainted with
Principal and her employment with the school, but requires
W.E.M. to have known at the time of the incident the identity of
the person he struck. Because W.E.M. did not see who he was
bumping before the collision, he could not have known he was
striking Principal, and so he had no way of knowing he was
striking a school employee.

¶20 It appears the juvenile court, on the other hand, believed
that the requirement of ‚with knowledge the individual is an
employee‛ could be met with just the evidence that W.E.M. was
generally acquainted with Principal and had previous
interactions with her in her role as an administrator.

¶21 The State acknowledged that ‚the assault *had to be+ with
knowledge that [Principal+ was an employee.‛ But it argued that
the court could find this element beyond a reasonable doubt
because, as the court noted, Principal testified W.E.M. ‚knew
that she was an employee of the school because she had several
interactions with him in her role as the [assistant principal] and


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his role as a student.‛ The State did not argue that W.E.M.
recognized he was making physical contact with a particular
person.3

¶22 Defense counsel responded that because W.E.M. did not
intend to run into anyone and did not target Principal, the
elements of the statute were not met. The State rebutted this,
arguing that because section 76-5-102.3 does not define a
culpable mental state, the elements of the statute were satisfied
so long as the act was intentional, knowing, or reckless. See 

 (LexisNexis 2012).4 Because of this, neither
the State nor defense counsel highlighted the requirement of the
statute that, at the time of the assault, W.E.M. had to be aware of
the status of the victim as a school employee.

¶23 This is demonstrated in the court’s summary of the
parties’ arguments:

      [T]he key argument seems to be *W.E.M.’s+
      knowledge of whether [Principal is] a school
      employee[,] and [the defense] keeps arguing that
      he didn’t target her, didn’t know she was, didn’t
      intentionally go after a school employee, and [the
      State’s+ argument is that doesn’t matter, she’s a


3. The State argued that W.E.M. ‚was fully aware of what was
going on,‛ but this statement was in the context of W.E.M. being
aware that he was participating in the bumping game and that
his behavior was wrong.

4. ‚Every offense not involving strict liability shall require a
culpable mental state, and when the definition of the offense
does not specify a culpable mental state and the offense does not
involve strict liability, intent, knowledge, or recklessness shall
suffice to establish criminal responsibility.‛ 

 (LexisNexis 2012).



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      school employee, [W.E.M.] knows she’s a school
      employee and the fact that he ran into her doesn’t
      have to specifically be targeting her as a school
      employee.

The court’s findings also indicate that the court believed the
statute required W.E.M. to have only some prior acquaintance
with Principal and her employment. It stated, ‚W.E.M. knew
[Principal] was a school employee and had had dealings with
her in the past in that capacity.‛ It did not find that the assault
was with knowledge that the individual was a school employee;
rather it found that there was an assault, and it found that
W.E.M. knew that the individual was an employee. See supra ¶ 5
(‚So there was an assault *on+ an employee. W.E.M. again had
knowledge that the individual was an employee.‛).

¶24 Thus, our review of the trial transcript suggests that the
court misunderstood this particular element of the statute,
finding the knowledge requirement proven beyond a reasonable
doubt simply because W.E.M. knew that Principal was a school
employee, instead of finding that W.E.M. commited the assault
with this knowledge.

¶25 Because there is no evidence aside from the possibility
that W.E.M. might have seen Principal before he struck her, and
because it is doubtful the court actually inferred that before the
incident W.E.M. knew the individual he was about to strike was
a school employee, this inference is against the clear weight of
the other evidence presented. See State v. Cristobal, 

, 

 (‚When the evidence supports more
than one possible conclusion, none more likely than the other,
the choice of one possibility over another can be no more than
speculation; while a reasonable inference arises when the facts
can reasonably be interpreted to support a conclusion that one
possibility is more probable than another.‛). Thus, we vacate the
juvenile court’s ruling that W.E.M. committed an assault against
a school employee on this basis.



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  II. There Is Sufficient Evidence That W.E.M.’s Actions Were
                            Voluntary.

¶26 W.E.M. next contends that there is insufficient evidence to
find he voluntarily assaulted Principal. W.E.M. maintains that
the collision was an accident and that he ‚did not voluntarily get
pushed into a school employee.‛

¶27 The juvenile court determined that W.E.M. assaulted
Principal when he lowered his shoulder and struck her. An
assault is ‚an act, committed with unlawful force or violence,
that causes bodily injury to another.‛ 

-
102(1)(b) (LexisNexis 2012). An ‚act‛ is ‚a voluntary bodily
movement.‛ 

 § 76-1-601(1).

¶28 Even though W.E.M. and the State agree that W.E.M. was
pushed when he struck Principal, the State asserts that W.E.M.
‚had been involved in ‘multiple’ prior incidents of shoulder
checking in the halls‛ and argues that ‚W.E.M.’s prior
participation in actively shoulder checking others makes it less
likely that this occasion of shoulder checking was accidental.‛
We agree.

¶29 ‚An innocent person may be falsely accused or suffer an
unfortunate accident, but when several independent accusations
arise or multiple similar ‘accidents’ occur, the objective
probability that the accused innocently suffered such
unfortunate coincidences decreases.‛ State v. Verde, 

, 

. The juvenile court found that W.E.M. had
engaged in ‚the bumping game with his friends on more than
one occasion. W.E.M. knew that the bumping game could result
in someone getting hurt.‛ W.E.M. testified that he had
participated in the bumping game in the past and that he knew a
person could be hurt by this behavior. The court also found that
W.E.M. had been pushed into someone else just before he was
bumped into Principal. This finding is supported by K.J., who
watched the surveillance video and testified there were three



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different pushing incidents on film that morning, one of which
occurred before the incident with Principal.

¶30 This evidence is sufficient to establish that W.E.M. acted
voluntarily. W.E.M. knew this behavior presented a risk, and his
participation in the game was no accident, as he had allowed
himself to be pushed into others on multiple occasions.

¶31 The other elements of assault were also established with
sufficient evidence. W.E.M. testified he participated in the
bumping game on other occasions and that he knew that people
could be hurt, which satisfies the culpable mental state of
recklessness. W.E.M. admitted he struck Principal, who
experienced pain. Thus, there is sufficient evidence supporting
the court’s conclusion that W.E.M. committed an act, with
‚unlawful force or violence, that cause*d+ bodily injury to
another.‛ See 

; see also 

 § 76-1-601(3)
(defining bodily injury as physical pain). Accordingly, we
remand with a direction for the juvenile court to enter an
adjudication for the lesser included offense of simple assault.


                         CONCLUSION

¶32 In sum, the evidence presented to the juvenile court was
insufficient to establish every element of assault against a school
employee. Specifically, the evidence was insufficient to show
that W.E.M. assaulted Principal with knowledge that the person
he was assaulting was a school employee. There was, however,
sufficient evidence to establish that W.E.M. acted voluntarily
when he assaulted Principal. We therefore vacate the juvenile
court’s ruling and remand for the court to enter an adjudication
for simple assault.




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