State v. Chamroeun Pheng
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2002 ME 40
Docket:	Cum-01-559
Submitted
on Briefs:	February 11, 2002
Decided:	March 14, 2002

Panel:SAUFLEY, C.J., and CLIFFORD, RUDMAN, DANA, ALEXANDER, and CALKINS, JJ.


									

STATE OF MAINE

v.

CHAMROEUN PHENG

ALEXANDER, J.

	[¶1] Chamroeun Pheng appeals from a judgment of the Superior Court
(Cumberland County, Fritzsche, J.) following a jury verdict of guilty on the
charge of aggravated assault, Class B, 17-A M.R.S.A. § 208(1)(A) (1983).{1} Pheng
contends that the court erred in giving the jury an accomplice liability
instruction and that there was insufficient evidence to support the verdict. 
Because the accomplice liability instruction was proper and the evidence is
sufficient, we affirm.

I.  CASE HISTORY  

	[¶2] The victim in this case, a senior at Portland High School, was
severely beaten by a group of youths.  When the Portland police found him on
the evening of September 5, 2000, the victim was bleeding and unconscious. 
He was transported to a hospital by ambulance, where he remained for several
days.  Because of his injuries, the victim missed the first quarter of his senior
year in high school and could not eat solid food for several months.  Thus,
there was no question at trial that an aggravated assault causing serious
bodily injury had been committed upon the victim.  The issue for trial was the
extent of Chamroeun Pheng's involvement.  That issue was significantly
disputed.  
	[¶3] Based on the evidence construed most favorably to the jury's
verdict, see State v. Crossman, 2002 ME 28, ¶ 10, --- A.2d ---, the jury could
have reasonably found the following:
	[¶4] While bicycling home on the evening of September 5, 2000, the
victim came upon a group of people partying near a gazebo adjacent to Front
Street in Portland.  There he recognized several high school acquaintances,
including Pheng, whom he had known for several years.  While speaking with
Pheng and several others, the victim was hit from behind by a hard object
wielded by someone other than Pheng.  The victim then fell to the ground and
several people began kicking him.  The victim saw and felt Pheng kick him in
the face and chest.  Another witness testified that Pheng had indicated that he
was angry with the victim because of something the victim had said to Pheng's
brother.  
	[¶5] Over Pheng's objection, the court instructed the jury on an
accomplice liability theory.  The jury returned a verdict of guilty.  Following the
imposition of a sentence of seven years to the Department of Corrections with
all but four years suspended and a period of probation of three years, plus a
restitution order, Pheng brought this appeal.{2}

II.  DISCUSSION

	[¶6] A person may be guilty of a crime as a principal if, with the
requisite mental state, the person engages in the physical acts which
constitute the crime.  17-A M.R.S.A. §§ 32, 34 (1983 & Supp. 2001).  To convict
a person of aggravated assault as a principal, the State must prove, beyond a
reasonable doubt, that the person intentionally, knowingly or recklessly caused
serious bodily injury to another person.  17-A M.R.S.A. § 208(1)(A).   Where a
group of individuals attacks a person and, as a result of the kicks and blows
struck in their collective attack, the victim sustains serious bodily injuries,
then each of those persons who actually participated in the physical attacks
which collectively caused the serious bodily injury may be guilty of aggravated
assault.  See Cox v. State, 528 S.E.2d 871, 875 (Ga. Ct. App. 2000) (participant
in group attack "criminally responsible for the injuries inflicted by all parties to
the crime even if he personally delivered only one blow"); State v. Thomas, 314
N.W.2d 15, 18 (Neb. 1981) (holding defendant responsible for victim's injuries
because defendant participated in the group beating of the victim).
	[¶7] To sustain an aggravated assault conviction, a particular
individual among the group of attackers need not be identified as the one who
struck the blows that were the particular cause of the victim's serious bodily
injury.  Because Pheng was identified as one of the attackers, kicking the
victim in the chest and the face, and because the victim indisputably sustained
serious bodily injuries from the attack, there is sufficient evidence to support
finding Pheng guilty of aggravated assault as a principal.  
	[¶8] The defense contends that the instruction on the accomplice
liability alternative should not have been given, as the evidence, which Pheng
contested, supported only his liability as a principal.  A person may be guilty of
a crime as an accomplice if, with the intent that the crime be committed, the
person aids, or agrees to aid, or attempts to aid another in the planning or
commission of the crime.  17-A M.R.S.A. § 57(3)(A) (1983); Maine Jury
Instruction Manual § 6-31 (4th ed. 2001).
	[¶9] Although mere presence at the scene when a crime is committed is
not sufficient to establish accomplice liability, once presence is proven,
accomplice liability may attach upon the State's proof of any conduct
promoting or facilitating, however slightly, the commission of the crime.  State
v. Kaler, 1997 ME 62, ¶ 7, 691 A.2d 1226, 1229; State v. Libby, 435 A.2d 1075,
1077 (Me. 1981).  Accomplice liability may attach if a person, intending that a
crime be committed, aids by actively furnishing advice and encouragement.  See
State v. Flint H., 544 A.2d 739, 742 (Me. 1988).  An overt act of assistance or
actual physical participation in the commission of the crime is not required. 
Id.
	[¶10] The court correctly instructed the jury that mere presence at the
scene of a crime is not sufficient for accomplice liability to attach.  In this
case, the jury could have determined that the principal attacker was the
unknown individual who began the attack by striking the victim in the back
with a hard object and knocking him to the ground.  The jury could have
concluded that Pheng then joined and supported this attack, with Pheng's
kicks to the victim's chest and face being indicative of Pheng's intent that the
collective result of the attack upon the victim, initiated by another, be serious
bodily injury, thus constituting aggravated assault.  With this view of the
evidence, the court's accomplice liability instruction was proper.  
	The entry is:
			Judgment affirmed.
                                                         
Attorneys for State:

Stephanie Anderson, District Attorney
Julia Sheridan, Asst. Dist. Atty.
142 Federal Street
Portland, ME 04101

Attorney for defendant:

Mary Davis, Esq.
Tisdale & Davis, P.A.
P O Box 572
Portland, ME 04112

FOOTNOTES******************************** {1} . "A person is guilty of aggravated assault if he intentionally, knowingly, or recklessly causes . . . [s]erious bodily injury to another . . . ." 17-A M.R.S.A. § 208(1)(A). "Serious bodily injury" is defined as "bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement or loss or substantial impairment of the function of any bodily member or organ, or extended convalescence necessary for recovery of physical health." 17-A M.R.S.A. § 2(23) (1983). {2} . Leave to appeal sentence was denied on November 8, 2001. State v. Pheng, No. SRP- 01-56 (Me. Sent. Rev. Panel, Nov. 8, 2001).