In the Interest of T. W., a Child , 810 S.E.2d 582 ( 2018 )

SECOND DIVISION
MILLER, P. J.,
DOYLE, P. J., and REESE, J.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
January 25, 2018
In the Court of Appeals of Georgia
A17A1681. IN THE INTEREST OF T. W., a child.
REESE, JUDGE.
Following a bench trial, the juvenile court found T. W. delinquent for
committing the offenses of possession of a pistol by a person under the age of 18 and
participation in criminal street gang activity. In his sole enumeration of error on
appeal, T. W. challenges the sufficiency of the evidence for the offense of
participation in criminal street gang activity.1 For reasons that follow, infra, we
reverse the adjudication of delinquency to the extent it was based upon a finding that
T. W. had participated in criminal street gang activity.
1
T. W. does not challenge the juvenile court’s adjudication of delinquency to
the extent the adjudication was based on his admission to the charge of illegally
possessing a firearm.
“In reviewing an adjudication of delinquency, this Court construes the evidence
and all reasonable inferences therefrom in favor of the juvenile court’s adjudication
to determine if a reasonable finder of fact could have found, beyond a reasonable
doubt, that the juvenile committed the acts charged.” In the Interest of W. B., 342 Ga.
App. 277 (801 SE2d 595) (2017) (citation and punctuation omitted). In so doing, we
do not weigh the evidence or determine witness credibility. See id.So viewed, the evidence shows that, in January 2017, corrections officer Kevin
O’Steen was supervising a prison work detail that was approached by a group of
young people. O’Steen told them to leave, and the group walked over to an
abandoned house across the street. After watching one of the group break a window
at the house, O’Steen called police. When police arrived on the scene, the group
dispersed.
Police Sergeant Matthew Wilson approached T. W., who had started walking
away from the house with his cousin, Charshaun Simmons. According to Wilson,
T. W. appeared to be of school age, so he stopped him to ask him why he was not in
school. While speaking with T. W., Wilson observed that T. W. was palpably nervous
and kept his hand in his pocket, and the officer asked T. W. to take his hand out of
the pocket. The officer searched T. W. and found a .22 caliber handgun in his pocket.
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T. W. was taken to the police station, where he gave a recorded statement.
T. W. told an investigator that Lawrence Bell, one of the other young people who had
been at the house, originally had the gun. When police officers approached them, Bell
slid the gun toward T. W. and told him to take it because, as a juvenile, T. W. would
get a lighter sentence if he was caught. Although T. W. claims he initially refused to
pick up the gun, he ultimately picked up the gun and put it in his pocket before
walking away from the house.
The State filed a delinquency petition against T. W. based upon the offenses
of possession of a pistol by a minor and participation in criminal street gang activity
as a member of the “Folk Nation” gang. At the delinquency hearing, the State
tendered certified copies of criminal convictions for Simmons and Bell showing that
the two were affiliated with gangs. In 2014, Bell – then a juvenile – admitted to
participating in street gang activity as a member of the Folk Nation gang. Simmons
was adjudicated delinquent for participating in street gang activity as a member of the
“Bloods” street gang.
The State tendered Detective Garrett Wright as an expert witness on gang
identity, membership, affiliation, and investigation. Wright testified that Folk Nation
is an umbrella street gang organization and that gangs under its control often had a
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“para-military style ranking structure” with subordinate gang members under ranking
officers. According to Wright, it is not uncommon for ranking gang members “to pass
guns to juveniles” who face reduced scrutiny and lesser sentences. Wright testified
it was his expert opinion that T. W. “is an associate of Lawrence Bell’s and the Folk
Nation” gang.
Based upon the evidence, the juvenile court adjudicated T. W. delinquent for
both possessing a gun and participating in street gang activity as an affiliate of the
Folk Nation gang. T. W. appeals this ruling, arguing that the State presented
insufficient evidence that he was associated with the Folk Nation criminal street gang
or that he knowingly and intentionally participated in street gang activity.
Georgia’s Street Gang Terrorism and Prevention Act, OCGA § 16-15-1 et seq.,
makes it “unlawful for any person employed by or associated with a criminal street
gang to conduct or participate in criminal gang activity through the commission of”
certain enumerated criminal offenses, including possession of a firearm. OCGA §
16-15-4 (a). See OCGA § 16-15-3 (1) (J). In order to prove a violation of this Act, the
State must show: (1) that T. W. was associated with a criminal gang; (2) that he
committed the act of possessing a firearm; and (3) that the firearm possession was
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intended to further the interests of the criminal gang activity. See Zamudio v. State,
332 Ga. App. 37, 39-40 (2) (771 SE2d 733) (2015).
In the case at bar, there was insufficient evidence to demonstrate gang
affiliation. Pursuant to OCGA § 16-15-3 (2), “[c]riminal street gang” is defined as:
any organization, association, or group of three or more persons
associated in fact, whether formal or informal, which engages in
criminal gang activity[.] The existence of such organization, association,
or group of individuals associated in fact may be established by
evidence of a common name or common identifying signs, symbols,
tattoos, graffiti, or attire or other distinguishing characteristics,
including, but not limited to, common activities, customs, or behaviors.
Such term shall not include three or more persons, associated in fact,
whether formal or informal, who are not engaged in criminal gang
activity.
The only evidence that T. W. was involved with a criminal street gang is that
he was in the presence of two people who had previously been adjudicated as gang
members and that he performed an act which might be expected of a junior gang
member. But the Supreme Court of Georgia has made clear that “the commission of
an enumerated offense by the defendant is not itself sufficient to prove the existence
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of a criminal street gang.”2 Rodriguez v. State, 284 Ga. 803, 808 (2) (671 SE2d 497)
(2009) (punctuation omitted). Thus, the State must present more evidence than the
fact that T. W. was in the mere presence of gang members and in possession of a gun
belonging to a gang member (Bell).
In previous cases before this Court, the State proved that a juvenile was a gang
member or otherwise connected to a gang by showing that he was wearing clothing
or symbols associated with the gang or through the juvenile’s admission that he was
a gang member. See In the Interest of D. M., 307 Ga. App. 751, 752 (1) (706 SE2d
683) (2011) (evidence was sufficient where the juvenile admitted to gang
membership, the juvenile wore a black bandana that was associated with the gang,
and the State tendered expert testimony that wearing a black bandana was a
proclamation that the shooting at issue was a gang-related act); In the Interest of
C. P., 296 Ga. App. 572, 575 (675 SE2d 287) (2009) (evidence was sufficient where
the juvenile wore colors associated with the gang, carried paper depicting gang
symbols and codes, and admitted to gang membership); see also Morris v. State, 340
2
The Supreme Court noted that, if such evidence, standing alone, was
sufficient, “the nonsensical result would be that a member of any legitimate group
could violate the Act merely by committing an enumerated offense.” Rodriguez, 284
Ga. at 808 (2).
6
Ga. App. 295, 299-300 (1) (797 SE2d 207) (2017) (evidence was sufficient to show
that the defendant was associated with a criminal street gang when the State presented
Facebook posts by the defendant in which he “displayed various distinguishing
characteristics . . . (e.g., hand signs/symbols, language, tattoos)” associated with a
specific criminal street gang); Taylor v. State, 331 Ga. App. 577, 578, 581-583 (2)
(771 SE2d 224) (2015) (evidence was sufficient where the State showed that the
defendant had “hung” out with gang members previously and that he armed himself
with a handgun before going with those gang members to an area occupied by a rival
gang in order to “invade” the rival gang’s territory). Here, the State presented no
evidence that T. W. was wearing any colors or attire that were uniquely associated
with the Folk Nation gang, that he had ever displayed signs or symbols affiliated with
Folk Nation gang membership, or that he had previously spent time with members of
Folk Nation.
The fact that Simmons and Bell (two of the individuals who were present just
before T. W. was taken into custody) were members of criminal street gangs – albeit
different gangs – may provide circumstantial evidence of T. W.’s gang membership.
However, to warrant an adjudication of delinquency based solely upon circumstantial
evidence, “the proved facts shall not only be consistent with the hypothesis of guilt,
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but shall exclude every other reasonable hypothesis save that of the guilt of the
accused.” OCGA § 24-14-6. See In re E. A. D., 271 Ga. App. 531, 532 (610 SE2d
153) (2005). As we have held,
[i]n a case entirely dependent on circumstantial evidence, . . . the State’s
evidence must both be consistent with the hypothesis of guilt and must
exclude every other reasonable hypothesis. Even when the
circumstantial evidence creates a strong suspicion of guilt, mere
suspicion is insufficient to support a conviction.
In re E. A. D., 271 Ga. App. at 532 (citation and punctuation omitted).
Here, while T. W.’s conduct in socializing with gang members and accepting
a gun from a Folk Nation gang member might create a mere suspicion that he was
affiliated with the Folk Nation gang, such circumstantial evidence is legally
insufficient to meet the State’s burden of establishing that T. W. was a member of or
associated with the Folk Nation gang beyond a reasonable doubt. See Jones v. State,
292 Ga. 656, 659-660 (1) (b) (740 SE2d 590) (2013) (conviction was reversed where
the State failed to prove that the defendant was a member of or associated in any way
with a criminal street gang); In the Interest of A. G., 317 Ga. App. 165, 166-167 (730
SE2d 187) (2012) (convictions were reversed because the evidence was insufficient
to establish that the juvenile defendants were members of a criminal street gang;
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while the evidence showed that the juveniles possessed purple bandanas and a
notebook that appeared to refer to a gang, there was no evidence that any local gangs
used purple bandanas or used the name written in the notebook). Thus, we must
reverse the juvenile court’s adjudication of T. W. as delinquent to the extent such
adjudication was based upon a finding that T. W. participated in criminal street gang
activity.
Judgment reversed. Miller, P. J., and Doyle, P. J., concur.
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