In the Interest of S.B., a Child ( 2019 )

FIFTH DIVISION
MCFADDEN, P. J.,
RICKMAN and MARKLE, 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
January 4, 2019
In the Court of Appeals of Georgia
A18A1851. IN THE INTEREST OF S. B., a child.
MCFADDEN, Presiding Judge.
After his palm prints were found at the scenes of two burglaries, then-13-year-
old S. B. was adjudicated delinquent for acts that, if committed by an adult, would
constitute the offenses of burglary and attempted burglary. He appeals, challenging
the sufficiency of the evidence supporting the adjudications and arguing, based on
comments made by the juvenile court at the adjudicatory hearing, that the juvenile
court adjudicated him delinquent for acts not alleged in the delinquency petitions.
Because the evidence was sufficient and the juvenile court’s written orders indicated
that S. B. was adjudicated delinquent for the acts alleged in the petitions, we affirm.
1. Sufficiency of the evidence.
S. B. challenges the sufficiency of the evidence supporting his adjudications
of delinquency. In considering this challenge, “we construe the evidence and every
inference from the evidence in favor of the juvenile court’s adjudication[s] 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 J. D., 275 Ga. App.
147, 147-148 (619 SE2d 818) (2005) (citations omitted).
So construed, the evidence showed that in the early afternoon on November 30,
2017, a house on Ellis Street was burglarized. Two video gaming systems, numerous
video games, video game controllers, and other electronics were taken. It appeared
to the investigating officers that the burglar had entered through a kitchen window
at the rear of the house, and the officers found S. B.’s palm prints on the outside of
the bottom lower window pane of that window. The resident of the house testified
that she did not know S. B., did not give S. B. permission to be inside her house, and
did not know why his palm prints would have been on her kitchen window.
The following week, in the early afternoon on December 4, 2017, a house on
Cleburne Street was burglarized. The back door was kicked in, a bedroom was
ransacked, and numerous items were taken from the house, including video gaming
systems and video games. Screens had been cut out of three windows at the back of
the house, and it appeared to an investigating officer that someone had tried to open
those windows. Officers found S. B.’s palm prints on the outside of the windows. The
resident of the house knew S. B., who went to school with one of her children.
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Although S. B. had spent time at the house in the past, in March 2017 the resident had
forbidden him from her house, and he did not have permission to be there on
December 4, 2017.
In connection with both of these incidents, the state filed delinquency petitions
alleging that S. B. had committed acts that, if committed by an adult, would constitute
the offense of burglary in the first degree. The juvenile court adjudicated S. B.
delinquent for acts constituting the offense of first-degree burglary in connection with
the Cleburne Street house and for acts constituting the offense of criminal attempt to
commit first-degree burglary in connection with the Ellis Street house.
Pertinently, “[a] person commits the offense of burglary in the first degree
when, without authority and with the intent to commit a felony or theft therein, he or
she enters . . . an occupied, unoccupied or vacant dwelling house of another[.]”
OCGA § 16-7-1 (b). “A person commits the offense of criminal attempt when, with
intent to commit a specific crime, he performs any act which constitutes a substantial
step toward the commission of that crime.” OCGA § 16-4-1. Moreover, “[a] person
charged with commission of a crime may be convicted of the offense of criminal
attempt as to that crime without being specifically charged with the criminal attempt
in the [charging document],” OCGA § 16-4-3, and “[a] person may be convicted of
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the offense of criminal attempt if the crime attempted was actually committed in
pursuance of the attempt[.]” OCGA § 16-4-2.
S. B. argues that the evidence was insufficient to support his delinquency
adjudications because the palm-print evidence was the sole evidence of his
involvement in the burglaries but the state did not show that his palm prints were
impressed on the windows of the burgled houses at the time of the burglaries. He also
argues that there was a reasonable explanation for the presence of his palm prints on
the windows and he argues that the evidence supported other reasonable hypotheses
inconsistent with his having committed the acts alleged. We are not persuaded.
Fingerprint evidence is a form of circumstantial evidence. See Harris v. State,
298 Ga. 588, 593 (4) (783 SE2d 632) (2016). “To warrant a conviction on
circumstantial evidence, the proved facts shall not only be consistent with the
hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of
the guilt of the accused.” OCGA § 24-14-6. So “when fingerprint evidence is the only
evidence linking a defendant to the crimes on trial, the [s]tate must prove to the
exclusion of other reasonable hypotheses that the fingerprints could have been
impressed only at the time of the commission of the crimes.” Roberts v. State, 296 Ga.
719, 721 (1) (770 SE2d 589) (2015) (citations omitted). It is for the juvenile court,
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as factfinder, to decide whether the totality of the evidence supported a reasonable
hypothesis other than the hypothesis that the fingerprints were impressed at the time
of the burglaries. See White v. State, 253 Ga. 106, 107 (1) (317 SE2d 196) (1984); In
the Interest of H. A., 311 Ga. App. 660, 662 (716 SE2d 768) (2011).
The state argues that the palm-print evidence was not the only evidence
supporting the adjudications of delinquency. But even if we view the palm-print
evidence to be the only evidence supporting the adjudications, it was sufficient. From
the circumstances surrounding the presence of S. B.’s palm prints at the scenes of the
burglaries, the juvenile court could conclude that “the only reasonable explanation
[was] that they were impressed during the commission of the crimes.” Roberts, 296
Ga. at 722 (1) (citation omitted).
As to the Ellis Street house, S. B.’s palm prints were found on the window
through which the burglar gained entry. Although S. B. “testified that he had left his
[ ]prints [on] the window during an earlier attempted burglary[, t]he [juvenile court]
was not required to believe that the [ ]prints had been left at the earlier time but was
authorized to find that [S. B.’s] explanation was evidence of his commission of the
instant burglary.” Moore v. State, 189 Ga. App. 810, 811 (377 SE2d 897) (1989). See
Moon v. State, 187 Ga. App. 558, 558-559 (370 SE2d 808) (1988) (affirming burglary
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conviction where defendant’s fingerprints were on window through which entry was
gained to residence and there was no evidence presenting any other reasonable
explanation of how they came to be there than that they were impressed on window
at time of burglary).
As to the Cleburne Street house, S. B.’s palm prints were also found on exterior
windows. Although there was evidence that he previously had visited that house with
the resident’s permission, that had occurred more than six months before the
December 4 burglary. Since that time, the exterior of the house had been pressure-
washed. See In the Interest of J. D., 275 Ga. App. at 149 (1) (state met burden of
excluding every reasonable hypothesis except that defendant’s fingerprints were
impressed during burglary by, among other things, presenting evidence that victim
regularly washed kitchen window on which defendant’s prints were found).
Moreover, there was no evidence regarding or explanation for how S. B.’s prints
came to be on the outside of windows from which the screens had been cut, and the
juvenile court was authorized to conclude that — notwithstanding S. B.’s earlier
visits to the house — the only reasonable explanation for the presence of the prints
in that specific location was that they were impressed there during the commission
of the crime. See Roberts, 296 Ga. at 722-723 (1) (holding that circumstances
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surrounding presence of defendant’s fingerprints at crime scene led “to the only
reasonable explanation that they were impressed during commission of the crimes,”
despite evidence that defendant had been at scene for innocent reasons on other
occasions) (citation omitted); In the Interest of J. D., supra at 149 (1) (evidence that
defendant had been in victim’s house once and may have been in living room “does
not provide an innocent explanation for the presence of his prints on the exterior and
interior of the rear kitchen window”).
S. B. argues that other evidence shows that he was not the perpetrator. He
points to evidence that he was either in school or at home with his mother when the
burglaries occurred — primarily his own testimony and that of his mother but also
evidence that his school did not mark him absent on those days. He also points to
evidence that other persons were seen in the vicinity of the houses when the
burglaries occurred. But as stated above, it was for the juvenile court as factfinder to
assess this evidence and determine whether the state had excluded every reasonable
theory other than S. B.’s guilt. White, 253 Ga. at 107; In the Interest of H. A., 311 Ga.
App. at 662. Because the evidence supported a conclusion that the only reasonable
hypothesis was that the palm prints were impressed at the time of the burglaries, the
evidence was sufficient to adjudicate S. B. delinquent for those acts.
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2. Juvenile court’s comments at adjudicatory hearing.
In his reply brief, S. B. argues that the juvenile court erred by “adjudicat[ing
him] delinquent for acts wholly different and separate than that alleged in the
delinquency petitions.” The rule forbidding a “fatal variance” between the language
of the charging document and the proof at trial applies to juvenile delinquency
proceedings. See In the Interest of S. C. P., 320 Ga. App. 166, 167 (739 SE2d 474)
(2013). Pretermitting whether S. B. waived this contention by failing to specifically
enumerate it as error in his initial appellate brief, but see Lebis v. State, 302 Ga. 750,
759-760 (II) (A) (808 SE2d 724) (2017) (considering on appeal whether there was
fatal variance, even though appellant couched claim of error as challenge to
sufficiency of evidence), we find no merit in the argument.
S. B. argues the juvenile court made comments at the adjudicatory hearing
indicating that she based her adjudications, at least in part, on S. B.’s admitted
presence at both houses at times other than the dates when the burglaries occurred,
as alleged in the delinquency petitions. But
[t]he juvenile court’s statement[s] in court [are] of no legal significance.
A trial court’s oral pronouncement is not a judgment until it is put in
writing and entered as the judgment. Although a trial court’s oral
pronouncements on the record may provide insight of [her] subsequent
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written judgment, discrepancies between the [oral and written]
pronouncements must be resolved in favor of the written judgment.
In the Interest of L. H., 242 Ga. App. 659, 660 (2) (530 SE2d 753) (2000) (citations
omitted). In her written orders adjudicating S. B. delinquent, the juvenile court stated
that she “found that the allegations of the petition [were] true . . . , that the acts
attributed to [S. B.] were, in fact, committed by [him], and that such acts constitute[d]
acts of delinquency.” To the extent that her comments during the hearing reflect a
different factual basis for her adjudications, we look to the written judgments, which
reflect that the juvenile court based her adjudications on the facts alleged in the
delinquency petitions.
Judgment affirmed. Rickman and Markle, JJ., concur.
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