In the Interest of W. B.
MCFADDEN, P. J., BRANCH and BETHEL, JJ.
an adjudicatory hearing in the Muscogee County Juvenile
Court, the court found that W. B. had committed burglary in
the first degree and had engaged in criminal gang activity.
The juvenile court therefore adjudicated W. B. delinquent and
placed him in restrictive custody for five years. W. B. now
appeals, asserting that the evidence was insufficient to
support a finding that he had engaged in criminal gang
activity. We agree with W. B., and we therefore reverse the
adjudication of delinquency for criminal gang activity.
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 A. G., 317 Ga.App. 165, 165 (730 S.E.2d 187)
(2012) (punctuation and footnote omitted). And in making that
determination, "we neither weigh the evidence nor
determine witness credibility." Id. (footnote
in the light most favorable to the adjudication of
delinquency, the record shows that on January 19, 2016, W.
B., together with his two juvenile co-defendants and an
adult, burglarized a home in Columbus. In February 2016, the
State filed a delinquency petition alleging that W. B. had
committed burglary in the first degree, and it subsequently
amended that petition to allege that W. B. had engaged both
in the burglary and in criminal gang activity on January 19.
W. B.'s case was heard together with the delinquency
cases of his two juvenile co-defendants, J. W. and M. J. At
the outset of the hearing, counsel for each of the three
defendants announced that his or her client was admitting to
the burglary charge but was contesting the charge of criminal
gang activity. The State thereafter declined to present any
evidence regarding the burglary or the police investigation
of that crime.
support of the charge of criminal gang activity, the State
presented three witnesses: Corporal Michael O'Keefe, a
patrol officer with the Columbus Police Department; Chris
Samra, a special agent with the Georgia Department of
Corrections, who was qualified as an expert in gang
identification; and Marcus Dubose, Director of Student
Services for the Muscogee County Schools.
testified that he had been a patrol officer for 10 years, and
during that time, he had received approximately 400 hours of
training on criminal gangs and how to identify them.
Additionally, O'Keefe stated that the area in which he
patrols and in which the burglary occurred was known for
"heavy gang activity." The predominant gang in the
area was the Winston Road Squad gang and in O'Keefe's
experience, that gang was involved in a number of illegal
activities, including burglary rings, narcotics,
prostitution, and the illegal sale of firearms. O'Keefe
testified that he had taken the report of the burglary and at
that time, the homeowner's son reported having received
text messages regarding people in possession of the stolen
property. O'Keefe did not testify, however, as to the
alleged content of those messages or whether the messages
referenced the Winston Road Squad gang. According to
O'Keefe, the messages were sent by an individual known
only as "Squad Boss, " but O'Keefe was not
personally familiar with that individual. Although
O'Keefe believed that Squad Boss was "suspected of
being involved in gang activity, " O'Keefe did not
identify either the gang that police believed Squad Boss
belonged to or the gang activity in which Squad Boss was
suspected of participating.
respect to the three defendants, O'Keefe testified that
he was familiar with all three juveniles from his time
patrolling their neighborhood and that he previously arrested
a number of their known associates. The officer, however, did
not identify any of those associates or testify as to whether
they were members of the Winston Road Squad gang. After
police identified the three juveniles as suspects in the
burglary, O'Keefe looked at each juvenile's Facebook
page to see if he could find any evidence of gang activity.
According to O'Keefe, such evidence would include
pictures featuring the juveniles dressed in gang colors or
other types of clothing typically worn by a specific gang;
the juveniles "throwing" or making known gang signs
with their hands; and the juveniles displaying firearms. On
W. B.'s Facebook page, O'Keefe observed W. B. in
photographs "holding up gang signs with his hands,
wearing colors that [were] known to be worn by gang members,
" and displaying firearms. Additionally, O'Keefe
observed that W. B. had posted pictures of himself "with
other individuals who have been arrested and are suspected of
. . . criminal gang activity, " including one picture
that showed Squad Boss. After viewing each defendant's
individual Facebook accounts, police charged them with
criminal gang activity.
who was qualified as an expert in gang identification,
testified that the Winston Road Squad gang was a street gang
that functioned as a subset of a larger gang, the Gangster
Disciples. The Winston Road Squad gang was known to engage in
assaults, burglaries and armed robberies, and as a general
rule, any proceeds from these activities would be used to
fund the gang. Additionally, a portion of any money received
by the Winston Road Squad gang would be forwarded to the
Gangster Disciples. Samra further testified as to the
difference between gang associates and gang members,
explaining that associates were not "full-fledged"
members. Instead, associates were people who "hung
out" with gang members and who might provide some
assistance to the gang. Samra also testified that the Winston
Road Squad gang was a "hybrid gang, " and explained
that hybrid gangs operate at a very local level and might
include members of one or more larger groups. According to
Samra, hybrid gangs are "kind of like the [T]riple A
version" of gangs - i.e., hybrid gangs are where members
"learn how to do [this] stuff and then they move up into
a more centralized core until they work their way up [in the
main gang] like a military structure."
respect to social media, Samra testified that gangs use
social media both as a recruiting tool and to establish what
individual gang members have done as they work their way up
in the gang hierarchy. Samra explained that hybrid gangs
often identify members on social media by having all members
use the same middle name or initial. In this case, Samra had
examined the Facebook accounts for W. B. and his two
co-defendants and he noted that all three used the initials
"AG" in place of a middle name. The State
introduced into evidence printouts from the Facebook pages of
W. B. and his co-defendants, and on their pages, all three
juveniles displayed emojis that included guns, bombs, and
dollar signs. Additionally, W. B. posted photographs of
himself making signs with his hands that Samra said were gang
signs, but Samra offered no testimony as to what gang would
be associated with those signs. Samra noted that in some
pictures, W. B. was making a "throwdown" sign,
which was used by gang members to show that the member had
weapons. Additionally, W. B. posted pictures of himself
pointing a handgun at the camera, which Samra explained would
be typical of gang members. Samra also stated that in some of
the pictures, W. B. was dressed either in camouflage or was
wearing a red hat, and Samra apparently saw that as a sign of
gang membership, as he had previously testified that the
wearing of certain colors would indicate gang affiliation.
The State offered no testimony or other evidence, however, to
show that red and camouflage were the colors of either the
Winston Road Squad gang or the Gangster Disciples. Finally,
Samra testified that the Facebook post showed W. B. and one
of his codefendants displaying tattoos of what could be their
nicknames, and he observed that gang members often went by
testified that in his capacity as Director of Student
Services for Muscogee County, he served as a disciplinary
hearing officer and he maintained the disciplinary records
for Muscogee County students. Dubose stated that Rule 14 of
the Muscogee County School District Behavior Code prohibits
gang activity on school property. In August 2015,
approximately five months before the burglary at issue, W. B.
and one of his co-defendants assaulted a student at a
Muscogee County middle school, and during the subsequent
disciplinary proceedings, each admitted to violating Rule
14's prohibition on gang activity.
on the foregoing evidence, the juvenile court found that W.
B. had engaged in criminal gang activity. W. B. now appeals
Georgia's Street Gang and Terrorism 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 burglary. See OCGA § 16-15-4 (a); OCGA §
16-15-3 (1) (A); OCGA § 16-14-3 (5) (A) (vii). Here, the
delinquency petition alleged that W. B. had violated this
statute by committing the burglary while "associated
with the 'Winston Road Squad' gang." Thus, to
prove that W. B. had violated the Street Gang Act as charged,
the State was required to show that W. B. was associated with
the Winston Road Squad gang; that the Winston Road Squad gang
was a criminal street gang; that W. B. committed a predicate
act of criminal gang activity, namely the burglary with which
he was charged; and that the commission of the burglary
"was intended to further the interests of [the Winston
Road Squad gang]." Jones v. State, 292 Ga. 656,
659 (1) (b) (740 S.E.2d 590) (2013); Rodriguez v.
State, 284 Ga. 803, 806-807 (1) (671 S.E.2d 497) (2009).
On appeal, W. B. asserts that the State failed to prove
either that he was associated with the Winston Road Squad
gang, or that the burglary was committed to further the
interests of that organization. Assuming for purposes of this
appeal that the State's evidence sufficed to prove that
W. B. was associated with the Winston Road Squad gang and
that the Winston Road Squad gang was a criminal street gang,
find that the evidence was insufficient to show that W. B.
committed the burglary to further the interests of the
sustain W. B.'s conviction under OCGA § 16-15-4 (a),
the State was required to prove "something more than the
mere commission of a crime by gang members."
Randolph v. State, 33 ...