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State ex rel. W.E.M. v. State

Court of Appeals of Utah

December 30, 2016

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.

         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.

          OPINION

          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 Utah Code Ann. § 76-5-102.3 (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.

          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:

[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.

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


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