363
Submitted August 20, 2020, affirmed February 2, 2022
In the Matter of A. E. J.,
a Youth.
STATE OF OREGON,
Respondent,
v.
A. E. J.,
Appellant.
Yamhill County Circuit Court
18JU06369; A169802
505 P3d 422
Ladd J. Wiles, Judge.
Matthew J. Steven, and Youth, Rights & Justice filed the
brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jonathan N. Schildt, Assistant Attorney
General, filed the brief for respondent.
Before Mooney, Presiding Judge, and Lagesen, Chief Judge,
and DeHoog, Judge pro tempore.
PER CURIAM
Affirmed.
364 State v. A. E. J.
PER CURIAM
Youth appeals from a delinquency proceeding finding her within the jurisdiction of the juvenile court based on
conduct that, if committed by an adult, would constitute the
crimes of harassment, ORS 166.065,1 and attempted fourth-degree assault, ORS 161.405(2)(e).2 On appeal, youth raises
three assignments of error. In youth’s first assignment of
error, she asserts that the juvenile court erred by finding
that she had not acted in self-defense. In youth’s second and
third assignments of error, she asserts that the court erred
by finding her within its jurisdiction for harassment and
attempted fourth-degree assault, contending that the evidence was legally insufficient to support that finding. For
the reasons that follow, we conclude that youth did not preserve the assignments of error that she advances on appeal
and that it would not be appropriate to address the claims
on a “plain error” basis. Accordingly, we affirm.
Neither party has requested that we conduct
de novo review, and we decline to do so. ORS 19.415(3)(b).
Therefore, we review the juvenile court’s legal conclusions
for errors of law, and we are bound by its findings of historical fact as long as they are supported by evidence in the
record. State v. J. M. M., 268 Or App 699, 703-04,
342 P3d
1122 (2015). We review a challenge to the sufficiency of the
evidence to determine whether, “viewing the evidence in the
light most favorable to the state, a rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” State v. J. C. L.,
261 Or App 692, 700,
325
P3d 740 (2014). If the juvenile court did not make express
findings on disputed issues of fact, and the evidence permits
the dispute to be resolved in more than one way, we will
presume that the court decided the facts in a way that is
1
ORS 166.065 provides, in part:
“(1) A person commits the crime of harassment if the person intentionally:
“(a) Harasses or annoys another person by:
“(A) Subjecting such other person to offensive physical contact; or
“(B) Publicly insulting such other person by abusive words or gestures in
a manner intended and likely to provoke a violent response[.]”
2
ORS 161.405(1) provides that a “person is guilty of an attempt to commit
a crime when the person intentionally engages in conduct which constitutes a
substantial step toward commission of the crime.”
Cite as 317 Or App 363 (2022) 365
consistent with its ultimate conclusion. See Ball v. Gladden,
250 Or 485, 487,
443 P2d 621 (1968). We state the facts of
this case consistently with those principles.
During a family gathering, youth and her father
had a dispute that led to her father telling her to leave the
room multiple times, which youth refused to do. Youth’s
father, who is the victim in this case, had previously been
convicted of assaulting youth and her mother. On this occasion, youth’s father seemed to have been drinking, was redfaced, and appeared “intimidating.” Youth’s father told her
to “hit him,” and youth struck him on the cheek. Youth’s
father then left the gathering; he called the police the following day to report the incident.
Youth alleges various errors on appeal relating to
the juvenile court’s denial of her self-defense claim. First,
youth contends that the juvenile court applied an incorrect
legal standard by applying a “parental discipline defense”
on behalf of her father. Second, youth asserts that the court
erroneously failed to apply a “reasonable child” standard
when assessing the youth’s self-defense claim. The state
responds that youth failed to preserve those arguments at
trial. The state argues that, because youth did not argue
that the evidence was legally insufficient to establish that
youth did not act in self-defense, but instead made a factual appeal that the trial court should not be persuaded by
the evidence presented by the state, her legal arguments on
appeal are not preserved. Youth, on the other hand, contends
that she preserved her appeal issues in her closing argument, in which she made a factual appeal arguing that the
state had failed to disprove her self-defense claim beyond a
reasonable doubt.
We agree with the state that youth’s closing argument did not preserve the legal arguments she advances
on appeal. Although a party may preserve a challenge to
the legal sufficiency of the evidence by raising that issue in
closing argument, not all closing arguments will accomplish
that objective. State v. R. W. G., 288 Or App 238, 240-41,
404
P3d 1131 (2017) (distinguishing cases where the asserted
legal insufficiency of the state’s evidence was preserved
in closing argument from cases where the asserted legal
366 State v. A. E. J.
insufficiency was not preserved). For a closing argument to
preserve a challenge to the legal sufficiency of the evidence,
it must sufficiently identify the asserted legal insufficiency
as such, and not merely argue that the court should not be
persuaded by the state’s evidence.
Id.
In this case, youth’s closing argument failed to
include any discussion regarding the asserted legal insufficiencies of the state’s case. Youth did not challenge the self-defense standard that the juvenile court applied, nor did she
dispute the juvenile court’s reference to parental discipline
at trial. Instead, youth argued that the juvenile court should
find her version of the facts to be credible and, as a result,
should conclude that the state had failed to meet its burden
to disprove her self-defense claim. As a result, youth’s factual
appeal during closing to the juvenile court did not preserve
the legal-sufficiency arguments that youth now advances
on appeal. Moreover, youth does not attempt to overcome
the lack of preservation by arguing that the juvenile court
committed plain error, and, because youth has not explicitly
asked us to conduct plain-error review, we “will not proceed
to [that] question[.]” J. D. v. S. K., 282 Or App 243, 249,
385
P3d 1161 (2016), rev den,
361 Or 439 (2017) (declining to consider a particular argument on appeal “because it is unpreserved and petitioner does not request plain error review”).
Affirmed.
