IN THE INTEREST OF T. W., a child.
MILLER, P. J., DOYLE, P. J., and REESE, J.
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. 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.
"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 S.E.2d 595) (2017) (citation and punctuation
omitted). In so doing, we do not weigh the evidence or
determine witness credibility. See id.
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
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
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.
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.
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
"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.
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.
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 intended
to further the interests of the criminal gang activity. See
Zamudio v. State, 332 Ga.App. 37, 39-40 (2) (771
S.E.2d 733) (2015).
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.
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 of
a criminal street gang."Rodriguez v. State, 284
Ga. 803, 808 (2) (671 S.E.2d 497) (2009) (punctuation
omitted). Thus, the State must present ...