State v. B. I. Z. V.

Under ORS 163.165(1)(e), a person commits third-degree assault when the person “while being aided by another person actually present, intentionally or knowingly causes physical injury to another.”

Youth appealed the court's ruling that placed him under its jurisdiction for actions that, if committed by an adult, would be classified as third-degree assault (Count 1), fourth-degree assault (Count 2), and harassment (Count 3). He contended that the evidence was inadequate for Count 1, arguing it failed to demonstrate he was “aided by another person actually present.” He also claimed that the juvenile court erred by not merging Counts 1 and 2. Under  ORS  163.165(1)(e), a person commits third-degree assault when the person “while being aided by another person actually present, intentionally or knowingly causes physical injury to another.” The Court found that Youth had preserved his argument regarding insufficient evidence during closing arguments by highlighting that the other boys did not aid him. The Court reasoned that the evidence supported the conclusion that he was indeed aided by someone present, as proximity can imply an additional threat to the victim's safety. However, the Court found that the trial court erred in not merging Counts 1 and 2. The Court reversed the initial judgment, ordering a new judgment to reflect one count of third-degree assault and one count of harassment.