DA will not file charges in fatal fight-related case
Aug 13, 2013 | 10 Comments
By Paul Daquilante
Of the News-Register
Berry announced his decision in a four-page memo to Detective Michelle Formway of the McMinnville police, the lead investigator in the case.
Agcaoili died June 4 at Oregon Health and Science University of a brain injury sustained as a result of the incident, according to Berry.
In his report, Berry referred to a “suspect” group that he said consisted of Leonard “Lonnie” Cain, Brandon Hubbell, Beau Herber and Brandon “Bam” Paholio. He referred to a “victim” group, saying it was comprised off Agcaoili, Eric Christensen, Daniel Garcia and Adrian Ulloa.
Berry said the case was thoroughly investigated, and that he personally reviewed all of the evidence, police reports and various surveillance videos, including a frame-by-frame examination of the video evidence. He asked several of his deputy district attorneys to review the case facts along with the still frame video.
“This is an extremely difficult case with absolutely tragic consequences,” Berry said. “The job of this office is to hold people accountable for such conduct, but we must do so within the confines of the law.”
Berry added, “There is no question that the punch delivered by Brandon “Bam” Paholio caused this death, but as we are unable to disprove the evident defenses, we are not in a position to prosecute.”
He gave this account:
Prior to the early morning incident, the “victim” group had been drinking throughout the day, beginning at a barbecue, then went to the China House on Southwest Baker Street before taking a cab to the Blue Moon Tavern on Northeast Third Street.
After drinking there, they walked a short distance to the Cabana Club, arriving there sometime after midnight.
The two groups began interacting about 2:15 a.m., and a series of events led up to activities starting at 2:32 a.m., which is when Agcaoili and Ulloa are seen in video supplied by the US Bank.
Ulloa turned his hat around.
According to witness statements, he was verbally engaged with Cain, and according to the video, he can be seen facing in Cain’s direction.
Agcaoili turned and began to raise his arms in what looked to be an offensive posture — that is not clear — or at least a defensive stance as if something was about to happen.
Seconds later, he was punched one time by Paholio and dropped to the cement in the area of the US Bank Plaza. Paholio’s momentum carried him over Agcaoili and to the ground. He is seen catching himself with his hands, and he immediately stands and moves toward where Ulloa and Cain are fighting (off video).
Christensen is seen in the video attending to Agcaoili, who is lying unconscious on the ground. Then Cain comes into the scene, and consistent with witness statements, confronts Christensen and shoves him.
The “suspect group” then moves to the north, and a vehicle is seen leaving the area. Ulloa, standing in the street, attempts to kick the vehicle.
Witness statements were obtained from all of the involved parties, according to Berry.
Statements from Ulloa, Christensen and Garcia are, at best, inconsistent with the video evidence.
Ulloa, based on the totality of the witness statements, clearly minimized his involvement in the verbal altercation and any continued escalation of the conflict, and any attempt to get Cain to fight. Cain declined to be interviewed.
Paholio was interviewed. His statement is fairly consistent with the video evidence and other witness statements, but inconsistent with some other information obtained.
He states, as did Herber, that as Agcaoili turned toward him, Paholio said something to the effect of, “You don’t want to do this,” or, “Stay out of it.” Paholio indicates that Agcaoili swung at him, but that is not corroborated by the video.
Paholio stated that he believed Agcaoili was going to join Ulloa in fighting Cain. From the video, both Agcaoili and Ulloa are side-by-side as they turn toward the south, facing Paholio and Cain. Ulloa did not appear to notice Agcaoili being struck as he and Ulloa moved in to fight with Cain.
Paholio said Agcaoili moved toward him aggressively when he was warned to keep out of the fight. The video is unclear in that regard beyond the fact that Agcaoili clearly turned toward Paholio and raised his arms consistent with a fighting position.
“He did not retreat or move in a direction away from the altercation,” Berry said. “In fact, he entered the area of the other two men, crossed paths with them much like a fighter circling and turned toward them.”
Berry said he felt compelled to address some social media issues related to the case, which he said created many rumors and significant misinformation.
* Agcaoili was not jumped by a group of men, allegedly as many as four to six.
* He was not beaten while he was on the ground, and was clearly struck a single time by one individual. There was very little external injury sustained by Agcaoili (a black eye).
* There was no argument inside the Cabana Club between Cain and Agcaoili during the evening.
“This is a tragic case, but the end decision must be based on the facts and the law,” Berry said. “Hopefully, as more factual information becomes available, the community will have a better understanding of what actually occurred.”
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