In the Interest of I. H., a Child ( 2019 )

SECOND DIVISION
MILLER, P. J.,
RICKMAN and REESE, JJ.
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
June 11, 2019
In the Court of Appeals of Georgia
A19A0462. IN THE INTEREST OF I. H., a child.
RICKMAN, Judge.
In October 2017, the Juvenile Court of Chatham County adjudicated I. H.
delinquent based upon offenses which, if committed by an adult, would have
constituted the crimes of aggravated assault on a peace officer, aggravated assault,
two counts of obstruction of an officer, interference with government property, simple
battery, disorderly conduct, disrupting public school, and three counts of simple
assault. On appeal, I. H. contends that the evidence did not support his adjudication
for aggravated assault on a peace officer beyond a reasonable doubt and that the trial
court erred by failing to merge certain counts in the delinquency petition. For the
following reasons, we affirm.1
In considering a challenge to the sufficiency of the evidence supporting
an adjudication of delinquency, we construe the evidence and every
inference from the evidence 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. Thus, the
standard of review on appeal in a case of adjudication of delinquency of
a juvenile is the same as that for any criminal case. In reviewing such
cases, we do not weigh the evidence or determine witness credibility.
(Citation and punctuation omitted.) In the Interest of M. L., 316 Ga. App. 413 (729
SE2d 548) (2012).
So construed, the evidence showed that on February 24, 2017, I. H., a student,
went into a classroom that he did not belong in. The teacher asked I. H. to leave the
classroom, but he refused and she had to call the office for assistance. I. H. was using
profanity and disrupting other students. The principal and school resource officer
came to the teacher’s classroom and escorted I. H. to the principal’s office.
1
We have circulated this decision among all non-disqualified judges of the
Court to consider whether this case should be passed upon by all members of the
Court. Fewer than the required number of judges, however, voted in favor of
considering the case en banc.
2
Once in the principal’s office, I. H. attempted to retrieve his cell phone out of
a cabinet. I. H. was not supposed to have his phone, so the officer tried to redirect him
away from the cabinet. Thereafter, I. H. picked up an approximately ten-pound
wooden office chair and threw it at the officer. The officer had to make an evasive
move to prevent the chair from hitting him. The officer testified that he was
apprehensive that he would be injured when I. H. threw the chair. I. H. then pushed
the principal. While the officer was trying to get control over I. H., his body
microphone fell off, and I. H. slammed the microphone on the floor causing it break.
I. H. attempted to flip over a table in the office, and he threw a heavy, rolling office
chair at the principal. The incidents in the classroom and the principal’s office were
recorded, and the videos were played for the juvenile court.
At some point, I. H. left the principal’s office, and the principal followed him
outside. I. H. walked down to the athletic fields, picked up an approximately three
and a half to four feet long metal pipe, and brandished it at the principal. The
principal was in fear that I. H. would hit him with the pipe.
The juvenile court adjudicated I. H. delinquent, and following a disposition
hearing, the juvenile court found that I. H. was a delinquent child in need of
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rehabilitation, treatment, and supervision. I. H. was placed on specialized probation
with an electronic monitoring device. I. H. appeals from his adjudications.
1. I. H. contends that the evidence did not support his adjudication for
aggravated assault on a peace officer beyond a reasonable doubt. Specifically, he
argues that the State failed to meet its burden to prove both that the wooden chair I.
H. threw at the officer was an object that when used offensively against a person, is
likely to result in serious bodily injury and that I. H. possessed a general intent to
injure the officer.
“A person commits the offense of aggravated assault when he or she assaults:
. . . with any object, device, or instrument which, when used offensively against a
person, is likely to or actually does result in serious bodily injury.” OCGA § 16-5-21
(a) (2). It is the factfinder’s role to determine whether “the State has shown that the
circumstances under which the object was used caused it to function, when used
offensively, in a way likely to result in serious bodily injury.” Hendrix v. State, 328
Ga. App. 819, 820 (1) (762 SE2d 820) (2014). “General intent to injure is a question
for the factfinder and may be determined upon consideration of the words, conduct,
demeanor, motive, and all other circumstances connected with the act for which the
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accused is prosecuted.” (Citation and punctuation omitted.) Frayall v. State, 259 Ga.
App. 286, 288 (1) (576 SE2d 654) (2003).
Here, the evidence showed that I. H. picked up an approximately ten pound
wooden chair and threw it at the officer. The officer testified he was apprehensive
that he would receive a violent injury when I. H. threw the chair and that he had to
make an evasive move to prevent the chair from hitting him. Accordingly, there was
sufficient evidence to sustain I. H.’s adjudication for aggravated assault on a peace
officer. See Hendrix, 328 Ga. App. at 820-821 (1) (affirming defendant’s conviction
for aggravated assault where he threw a table at the victim); Watson v. State, 301 Ga.
App. 824, 826 (689 SE2d 104) (2009) (holding that there was sufficient evidence to
show that the defendant committed aggravated assault when he threw a glass bowl
at the victim); Sims v. State, 296 Ga. App. 461, 463 (1) (675 SE2d 241) (2009)
(finding in an aggravated assault case that “the evidence was sufficient to support an
inference by the jury that [the defendant] had the requisite general intent to injure the
deputy”).
2. I. H. contends that the trial court erred by failing to merge certain counts in
the delinquency petition. I. H. argues that the juvenile court erred by relying on In the
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Interest of M. J. F., 191 Ga. App. 792 (383 SE2d 173) (1989), to conclude that the
doctrine of merger is inapplicable in juvenile court. We disagree.
“The doctrine of merger precludes the imposition of multiple punishments
when the same conduct establishes the commission of more than one crime. While a
defendant’s conduct may constitute more than one crime, Georgia law bars conviction
and punishment of more than one crime if one crime is included in the other.”
(Citation and punctuation omitted.) Colbert v. State, 345 Ga. App. 554, 558 (3) (813
SE2d 777) (2018). See OCGA § 16-1-7 (“When the same conduct of an accused may
establish the commission of more than one crime, the accused may be prosecuted for
each crime. He may not, however, be convicted of more than one crime if: [o]ne crime
is included in the other; or [t]he crimes differ only in that one is defined to prohibit
a designated kind of conduct generally and the other to prohibit a specific instance
of such conduct.”) (emphasis supplied).
In the context of juvenile court proceedings, “[a]n order of disposition or
adjudication shall not be a conviction of a crime and shall not impose any civil
disability ordinarily resulting from a conviction nor operate to disqualify the child in
any civil service application or appointment.” OCGA § 15-11-606. Once a juvenile
court finds that a child has committed a delinquent act, the court does not sentence
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the child; instead it must determine whether, “[s]uch child is in need of treatment,
rehabilitation, or supervision.” OCGA § 15-11-600 (a) (1) (A). In In the Interest of
M. J. F., this Court held that because of the unique nature of juvenile court
proceedings and the fact that a disposition or adjudication order is not a conviction
of a crime, the doctrine of merger is inapplicable. In the Interest of M. J. F., 191 Ga.
App. at 793 (5).
I. H. is a juvenile and he was neither convicted of anything nor did he receive
multiple punishments for the same conduct. I. H. was found to be in need of
rehabilitation, treatment, and supervision, and he was placed on specialized probation
for his acts of delinquency as a whole. Accordingly, because the doctrine of merger
does not apply to juvenile adjudications of delinquency, we find no merit in I. H.’s
argument. See In the Interest of M. J. F., 191 Ga. App. at 793 (5).2
Judgment affirmed. Miller, P. J., and Reese, J., concur.
2
To the extent that In the Interest of D. M., 307 Ga. App. 751, 753 (2) (706
SE2d 683) (2011), and In the Interest of J. C., 255 Ga. App. 471, 473 (3) (566 SE2d
39) (2002), could be interpreted as authorizing the merger of juvenile adjudications
of delinquency they are hereby disapproved of.
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