Lead Opinion
Appellant, a juvenile, was charged with assault with a deadly weapon in violation of U.C.A., 1953, 76 — 5—103(l)(b), for having allegedly shot another youth in the leg. The juvenile court, Judge Judith Whitmer, found the allegation to be true. The matter was then set for disposition before Judge Regnal Garff. Appellаnt was committed to the Youth Development Center, which order was suspended upon condition that he commit no further felonies nоr exhibit assaultive behavior. Custody and guardianship was transferred to the Utah State Division of Family Services for placement at the Utаh Boys Ranch.
Appellant seeks reversal of the findings and order, claiming error for failing to acquit on self defense. Furthermore, he сlaims the court erred in denying his motion for a new trial based on perjury of the witnesses and in setting the disposition hearing before a judge оther than the one before whom the adjudication hearing was heard.
On May 20, 1977, appellant and one Tony Maestas, also a juvеnile entered the game room at Trolley Square in Salt Lake City. The two boys approached two girls, Sharon Reeves and Kathy Hirе, and asked if the girls would like to play an electronic racing game. The girls agreed and during the game two older boys, Mike Bennett and Cоry John appeared. Bennett told appellant and Maestas to “get lost” as the girls were with them. An argument ensued and Maestas threatened Bennett. Bennett thereupon grabbed Maestas, searched his coat pockets for weapons and shoved him bаckward. Appellant and Maestas left the game room and proceeded downstairs and left the building where they waited outside. Bеnnett came down the stairs a few minutes later and was confronted by Maestas who then had a knife. Bennett reentered the building and informеd John that appellant and Maestas had threatened him with a knife. John ran down the stairs with Bennett close behind, carrying a pool cue.
While there is some conflict in the testimony concerning the events that ensued it is clear that Bennett and John set out in pursuit of appellant and Maestas who ran into the parking lot. Sharon Reeves, who had followed Bennett and John, testified that “Cory was running after the two kids, Mike was running after Cory and I was running after both of them.” The chase continued into an area where a construction projeсt was under way. At that time appellant produced a gun and aimed it at Bennett who was pursuing him. There is conflicting testimony as to whether thе pool cue was being held in a threatening manner, as to the distance between appellant and Bennett, and as to whethеr appellant ever warned Bennett. It is clear, however, that appellant fired one shot into the
The trial judge made the following finding relating to the claim of self defense:
4. Although the issue of self-defense was raised by counsel for Mr. S-, according to the testimony а period of time from two minutes to ten minutes elapsed between the time of the incident inside Trolley Games which provoked the аttack and the assault. Mr. S-had ample opportunity to exit the building, and, in fact, Mr. S_ did exit the building prior to the confrontation with the victim in the parking lot.
Under Utah law there is no duty to retreat from an assault. There is, however, a duty to act reasonably in defending oneself.
Appellant asserts that the testimony of the witnesses against him was perjured. As indicated above, the finder of fact has the duty of deciding who to believe when evidence is conflicting. There is substantial evidence in the record for the trial court to conclude that the allegations were true and that aрpellant was not acting in self defense. Furthermore, a person is not guilty of perjury
The final claim of error relates to the disposition of the case. Rule 25 of the Utah Rules оf Juvenile Court Procedure provides that “the judge who presided at the adjudicatory hearing shall, wherever possible, preside at the dispositional hearing.” The obvious reason for such Rule is to insure that the judge who presides at the disposition hearing is familiar with the case so as to secure for each child such “care, guidance, and control ... as will serve his welfare and the best interest оf the state.”
Notes
. State v. Molitz,
. State v. Romero, Utah,
. U.C.A., 1953, 76-8-502.
. U.C.A., 1953, 78-3a-l.
Dissenting Opinion
(dissenting):
The facts as set out in the main opinion convince me that there is a jury question as to whether the "accused boy acted out of fear and in self defense. The judge found that because several minutes elapsed between the argument inside the building and the shooting that the acсused had ample opportunity to exit the building, therefore, no self defense.
I think that the case should be remanded for the purpose of determining if in fact the lad shot in self defense. This is especially true since the accused and his companion were younger than the victim and his associate.