In the Interest Of: C. S., a Child , 334 Ga. App. 153 ( 2015 )

FIRST DIVISION
DOYLE, C. J.,
PHIPPS, P. J., and BOGGS, 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
October 14, 2015
In the Court of Appeals of Georgia
A15A1154, A15A1155. IN THE INTEREST OF: C. S., a child (two BO-0 4 2C,
cases). 043C
BOGGS, Judge.
A juvenile court adjudicated 16-year-old C. S. delinquent for acts which, if
committed by an adult, would have constituted aggravated assault, possession of a
firearm during the commission of a felony, and violation of the Georgia Street Gang
Terrorism and Prevention Act. The judge ordered that C. S. be placed in confinement
for 24 months and kept in the custody of the Department of Juvenile Justice until he
reaches age 21. In Case No. A15A1154, C. S. appeals, challenging among other
things, the sufficiency of the evidence. In Case No. A15A1155, he asserts error
related to the denial of his motion for an appeal bond. For the reasons explained
below, we affirm in Case No. A15A1154 and dismiss Case No. A15A1155 as moot.
1. C. S. asserts that the State failed to prove venue. But the victim’s testimony
that the crimes occurred in Glynn County was sufficient to establish venue. See Long
v. State, 324 Ga. App. 882, 889 (1) (752 SE2d 54) (2013).
2. C. S. challenges the sufficiency of the evidence.
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).
Construing the evidence presented at the adjudicatory hearing in the light most
favorable to the juvenile court’s ruling, the record showed that the victim, 19 years
old at the time of trial, had a verbal altercation with Josh Pasco: “We had like
exchanged words.” A few days later, at about 7:00 p.m., Pasco and two other males
approached the victim as he got out of his car in front of a recording studio. The
victim testified that the second man, whom he identified by the nickname “Amp” and
2
police identified as Anthony Thomas, “came up to me, and swung, and missed.” The
victim grabbed Thomas, sat back down in his car, and used Thomas as a shield to
peek around “to see what’s really going on.” The victim explained that Pasco stood
in front of his vehicle and fired a shot through the windshield that landed in the
passenger seat. The third person, whom the victim testified he did not know, reached
through the passenger side window with a gun and attempted to hit the victim to get
him to release his hold on Thomas.
The victim managed to push Thomas out of his car and drive away. He called
police once he was “four or five blocks” away. The victim stated that he described the
third person to police as an older guy, about “five-eight, five-nine,” with a black shirt
and “twist-ies in his hair.” The victim testified that he knew C. S. and that C. S. was
present the night of the attack, but he was “standing in the park, he didn’t have
nothing to do with it, he was just standing there,” about 15 yards away. The victim
explained that other people were standing in the park “coming to watch it, that’s all
they were doing, coming to watch it.” Three other witnesses also testified that C. S.
was in the nearby park with others observing the incident. One of these witnesses, a
friend of Pasco’s, testified that after the incident, Pasco told him “that the police
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caught everyone,” and that “that included [C. S.] because [C. S.] had been arrested
at that time.”
An investigator testified that she responded to the scene to find the victim
bleeding from the mouth. She explained that the victim identified Pasco as “Josh” and
Thomas as “Amp” but that he did not know the third person involved in the assault.
Although the victim asserted that he described the third person to police as an older
guy, about “five-eight, five-nine,” with “twist-ies in his hair,” the investigator
testified that the victim described the third person as younger than Thomas or Pasco,
Thomas’ height or a little shorter, with “dreds . . . like, twisted.” She testified that
Thomas is 17 years old, Pasco is 18 years old, Thomas is 5 foot 9 inches tall, and C.
S. is 5 foot 1 inch tall. She testified further that although the victim did not know the
third attacker, police were able to identify this third person as C. S. from the victim’s
description and from Thomas, who denied any involvement, but explained that he, C.
S., and Pasco “had been together all night.”
The investigator explained that the victim told her he was formerly in a gang
(“the 305 Boys and the 912 Boys”), and that when the three approached him in the
parking lot, they made comments that the attack was in retaliation for the death of
another “Blood member.” She testified further that the victim “stated he didn’t want
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anything to do with this, because he felt like the Bloods would come after him if he
would testify against the guys that were - - That shot at him.” A detective testified
that when he arrived at the scene, the victim told him “that the boys from 912 had
shot at him.” He stated further that C. S. “initially [ ] was associated or [a] member
of the 305 Miami Bloods,” Thomas and Pasco were each associated with the “912
criminal street gang,” and the victim “was an associate of the 305 Miami Bloods,” but
“has been pretty inactive with that organization since he’s been employed.” The
detective explained that “912, and 305, are both Bloods,” and that “[t]hey’re linked
by the fact that they’re family - - In the Blood family, they’re both bloods.”
Later that night, based upon information provided by the victim, officers went
to Pasco’s home where they found Thomas, C. S., Thomas’ cousin and Pasco’s
parents. C. S. attempted to flee upon seeing officers, but was apprehended and taken
to the police station. A detective testified that he interviewed C. S. for about 12
minutes. C. S. admitted that he, Thomas and Pasco had been “just hanging out,” but
denied any involvement in the assault. When the detective told C. S. that the police
had probable cause to arrest him, C. S. responded that “[h]e’d take the three felonies.”
The investigator further explained that during the investigation, the victim told
her that his mother informed him, before he went to the recording studio, that three
5
individuals had come to his home looking for him. The investigator stated that “one
of [the victim’s] siblings recognized and knew [C. S.] by name” as one of the three
individuals. The victim testified, however, that before he left for the recording studio,
his mother called and told him that “some boys came looking for [him]. And, I was
like, um who were they? And, my brother – And, he just said, [Pasco], [Thomas], and
another guy in another - - but I don’t know - -.”
With regard to the three witnesses who asserted that C. S. stood in a nearby
park during the assault, the juvenile court found: “[w]ith few exceptions, the Court
places no credibility on the testimony of these witnesses.” The court noted that two
of the three were members of a street gang, that their testimony was “evasive,
conflicting and inconsistent,” and that one of the witnesses sent a Facebook message
to C. S.’s mother stating that C. S. “was there when the shooting took place and that
he had gone all the way up there where everything happened.” The juvenile court
found that the victim’s testimony, to the extent it conflicted with his prior out of court
statements, lacked credibility, including his description to police of the third assailant.
The court noted that the victim, “[i]n violation of the court’s express instructions
when the witnesses were sequestered, [ ] put his arm around [ C. S.]’s mother . . . and
whispered in her ear.”
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The court also found significant that one of C. S.’s three witnesses, a cousin of
Pasco, testified that after Thomas and C. S. were arrested, Pasco told him “that the
police had gotten everyone who was involved in the attack on the [victim], except
him. Of course, the only others who had been “gotten” were [Thomas] and [C. S.]”
Finally, the court explained that it was permitted to draw an inference that C. S.’s
flight from police “evinces a consciousness of guilt,” See, e. g., State v. Frost, ___
Ga. ___ Slip op. at 18 (Case no. S14G1767; decided June 15, 2015).
C. S. contends that the evidence presented was insufficient to support a finding
that he assaulted the victim, either directly or as a party to a crime, because his mere
presence at the nearby park was not enough to establish that he was one of the
perpetrators. He argues that for this same reason, the evidence was insufficient to
establish that he was in possession of a firearm. C. S. argues further that the testimony
of the detective is insufficient to establish that he “was employed by or associated
with any gang,” and that “the assault in itself would not be enough to prove that [he],
Pasco, and Thomas were all associated with each other as part of the same criminal
street gang.”
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“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. And
[q]uestions as to the reasonableness of hypotheses are generally to be
decided by the [fact finder] which heard the evidence and where the
[fact finder] is authorized to find that the evidence, though
circumstantial, was sufficient to exclude every reasonable hypothesis
save that of guilt, that finding will not be disturbed unless the verdict of
guilty is insupportable as a matter of law.
(Citations and punctuation omitted.) Rogers v. State, 290 Ga. 18, 23 (4) (717 SE2d
629) (2011). Moreover, “criminal intent may be inferred from conduct before, during,
and after the commission of a crime.” (Citation, punctuation and footnote omitted.)
Gordon v. State, 316 Ga. App. 42, 47 (1) (b) (728 SE2d 720) (2012).
The juvenile court, as the trier of fact, found C. S.’s witnesses lacked
credibility, and that the victim lacked credibility to the extent his testimony was
inconsistent with his prior statements to police. And we must give “due regard to the
trial court’s opportunity to judge witness credibility.” (Citation, punctuation and
footnote omitted.) Snow v. State, 318 Ga. App. 131 (1) (733 SE2d 428) (2012). While
the court relied in part on hearsay testimony from the investigator and detective, this
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testimony was not objected to and was therefore admissible evidence.1 See OCGA §
24-8-802; Bradshaw v. State, 296 Ga. 650, 653 (2) n.2 (769 SE2d 892) (2015). The
evidence was sufficient to enable the juvenile court to reject as unreasonable the
hypothesis that C. S. stood in a nearby park and did not participate in the assault. See
Rogers v. State, 290 Ga. 18, 23 (4) (717 SE2d 629) (2011). The court as fact finder
could have found the hypothesis that C. S. was an innocent bystander unreasonable,
particularly in light of the evidence of Pasco’s statement that the police had “gotten”
everyone involved. “Because the fact[ ]finder has heard the witnesses and observed
them testify, it is considered more capable of determining the reasonableness of the
hypothesis produced by the evidence or lack thereof than is an appellate court.”
(Citation and footnote omitted.) Davidson v. State, 295 Ga. App. 702, 706 (673 SE2d
91) (2009). We therefore conclude that the evidence relied upon by the trial court to
find that C. S. was in fact the third assailant who put a gun in the car window and
attempted to hit the victim, while circumstantial, was sufficient to exclude every
reasonable hypothesis save that of C. S.’s guilt for the delinquent offenses of
aggravated assault and possession of a firearm during the commission of a felony. See
OCGA §§ 16-5-21 (b) (2), 16-11-106 (b) (1).
1
C. S. has not raised a claim of ineffective assistance of counsel in this appeal.
9
The evidence was also sufficient to establish that C. S. violated OCGA § 16-
15-4, which provides that it is unlawful for any person associated with a criminal
street gang to engage in criminal street gang activity, including offenses involving
violence or weapons. See OCGA § 16-15-3 (1) (j). The evidence presented showed
that Pasco, Thomas, and two of C. S.’s witnesses were all associated with the “912
criminal street gang,” that C. S. was initially associated with the “305 criminal street
gang,” that both of these gangs were in the Bloods family, and the attack upon the
victim was in retaliation for the death of a “Bloods” gang member. See Jackson v.
State, 272 Ga. 191,193 (1) (528 SE2d 232) (2000).
3. C. S. asserts that the juvenile court erred in considering evidence “not on the
record” of the adjudicatory hearing. C. S. argues further that the court’s failure to give
him prior notice of its intention to consider this evidence, in addition to the evidence
presented at the adjudicatory hearing, deprived him of due process. The court noted
in its order finding delinquency that in “hearing and deciding the issues presented,”
it also considered portions of the testimony presented at the detention hearing.
While C. S. argues that he was denied due process by the juvenile court’s
failure to give him notice of its intention to consider evidence presented at the
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detention hearing, his argument here in essence alleges an evidentiary error.2 It is true
that evidence presented at the detention hearing is for the purpose of determining
“whether preadjudication custody of an alleged delinquent child is required.” OCGA
§ 15-11-506 (a); see generally OCGA § 15-11-503. But even if C. S. is correct that
a juvenile court should not also consider this evidence for purposes of adjudication,
he has failed to show harm here, either from the court’s consideration of the evidence
or its failure to provide him with notice of its intention to do so. The juvenile court
sits as the trier of fact in delinquency proceedings, see OCGA § 15-11-582 (b) (1),
and here the same juvenile judge presided over both C. S.’s detention hearing and his
adjudicatory hearing. The State presented an investigator and a detective at the
detention hearing and they were cross-examined by C. S.’s counsel. The two also
testified at the adjudicatory hearing and their testimony was in large part the same.
Under these circumstances, we see no harm in the juvenile court’s consideration of
the testimony presented at the detention hearing. And, as we have held in Division 2,
the evidence presented in the adjudicatory hearing was alone sufficient to support the
juvenile court’s finding of delinquency.
2
C. S. cites to no authority, and we have found none, holding that the failure
to give such a notice constitutes a denial of due process.
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4. C. S. contends that the juvenile court erred in placing him in restrictive
custody without “expressly making reference to all the required factors set forth in
OCGA § 15-11-602 (b).” That Code section provides:
Every order shall include a finding, based on a preponderance of the
evidence, of whether such child requires placement in restrictive
custody. If placement in restrictive custody is ordered for a child
classified as low risk, the court shall make a specific written finding as
to why placement in restrictive custody is necessary. In determining
whether placement in restrictive custody is required, the court shall
consider and make specific written findings of fact as to each of the
following factors
(1) The age and maturity of such child;
(2) The needs and best interests of such child;
(3) The record, background, and risk level of such child as
calculated by a risk assessment, including, but not limited to,
information disclosed in the probation investigation, diagnostic
assessment, school records, and dependency records;
(4) The nature and circumstances of the offense, including
whether any injury involved was inflicted by such child or another
participant, the culpability of such child or another participant in
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planning and carrying out the offense, and the existence of any
aggravating or mitigating factors;
(5) The need for protection of the community;
(6) The age and physical condition of the victim;
(7) If the act was trafficking of substances in violation of Code
Section 16-13-31 or 16-13-31.1, whether the circumstances involved
sale, delivery, or manufacture of the substances, and if such
circumstances were not involved, the court shall dispose of the act as a
class B designated felony act; and
(8) If the act was aggravated child molestation and subject to the
provisions of paragraph (2) of subsection (d) of Code Section 16-6-4,
the court shall adjudicate the act as a delinquent act and impose a
disposition in accordance with Code Section 15-11-601.
C. S. argues that the juvenile court erred in failing to expressly recite and make
findings of fact regarding the third factor, OCGA § 15-11-602 (b) (3). But the court’s
order noted that it considered a Behavioral Health Evaluation, a Pre-Disposition
Investigation Report, and a Pre-Dispositional Risk Assessment, and incorporated the
information in those documents by reference. The court noted that the Behavioral
Health Evaluation revealed that C. S. had been diagnosed with attention-
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deficit/hyperactivity disorder; oppositional defiant disorder, unspecified depressive
disorder, cannabis abuse disorder, and borderline intellectual functioning. With
regard to C. S.’s record and background, the court found that at the time C. S.
committed the offenses, he “was on probation for violation of probation and two
counts of possession of a Schedule I Controlled Substance,” and had “not responded
to any of the efforts made by th[e] court to provide him with treatment and
rehabilitation.” The court found further that C. S. “has clearly been drawn into the
criminal street gang life and is currently a member or associate of the 912 Bloods, aka
912 Folk Nation, which is a criminal street gang.” So while not specifically
delineated under a separate heading, the court considered and made specific written
findings of fact as to C. S.’s “record, background and risk level.” This claim of error
is therefore without merit.
Case No. A15A1155
4. C. S. challenges the juvenile court’s denial of his motion for an appeal bond
and his request for a hearing on the matter. But in light of our holding in Division 2
above that the evidence was sufficient to sustain the finding of delinquency, we
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dismiss this appeal as moot. See Williams v. State, 244 Ga. App. 692, 697 (6) (536
SE2d 572) (2000).3
Judgment affirmed in A15A1154. Case dismissed as moot in A15A1155. Doyle,
C. J. and Phipps, P. J., concur.
3
C. S. asserted in this appeal that the juvenile court erred in ruling that it did not
have discretion to grant an appeal bond. While the court stated that the caselaw on the
matter did not apply to juvenile court, it nevertheless considered the merits and ruled
under the assumption that the caselaw did apply.
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