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In re K. S.

Court of Appeals of Georgia

January 23, 2019

IN THE INTEREST OF: K. S., a child.

          Barnes, Presiding Judge.

         After a series of car break-ins and the theft of a vehicle, the State filed a delinquency petition in the Juvenile Court of Douglas County alleging that K. S. had committed acts that, if committed by an adult, would have constituted 32 counts of entering an automobile with intent to commit a theft, one count of theft by taking a motor vehicle, and one count of participating in criminal street gang activity. The State filed a motion seeking to have K. S.'s case transferred to superior court for prosecution, and after conducting a hearing, the juvenile court entered an order granting the State's motion. It is from that order that J. S. now appeals.

         This is the second appearance of this case before this Court. In the first appeal, we dismissed the appeals of K. S. and four other juvenile defendants on the ground that they should have followed the interlocutory appeal procedure when appealing an order transferring a case from juvenile court to superior court. In Interest of J. H., 340 Ga.App. 733 (797 S.E.2d 185) (2017). The Supreme Court of Georgia reversed our decision, holding that K. S. could directly appeal the transfer order, and remanded the case to this Court for consideration of K. S.'s claims on the merits.[1] In the Interest of K. S., 303 Ga. 542 (814 S.E.2d 324) (2018). Accordingly, we vacate our prior decision and adopt the Supreme Court's decision as our own, and, for the reasons discussed more fully below, we affirm the juvenile court's transfer of K. S.'s case to superior court.

         At the outset, we note that OCGA §§ 15-11-561 and 15-11-562 of Georgia's Juvenile Code address the transfer of a juvenile's case to superior court for criminal prosecution.[2] See In the Interest of T. S., 336 Ga.App. 352, 353, n. 1 (785 S.E.2d 32) (2016). OCGA § 15-11-561 (a) provides, in relevant part, that before transferring jurisdiction from juvenile to superior court, the juvenile court must determine that

(1) There is probable cause to believe that a child committed the alleged offense; (2) Such child is not committable to an institution for the developmentally disabled or mentally ill; and (3) The petition alleges that such child (A) Was at least 15 years of age at the time of the commission of the offense and committed an act which would be a felony if committed by an adult . . . .

         After making those determinations, and "after consideration of a probation report, risk assessment, and any other evidence the court deems relevant, including any evidence offered by a child," the juvenile court "may determine that because of the seriousness of the offense or such child's prior record, the welfare of the community requires that criminal proceedings against such child be instituted" and transfer the case to superior court. OCGA § 15-11-561 (c). In considering whether transfer is appropriate, the juvenile court also must consider the non-exhaustive list of eleven criteria set forth in OCGA § 15-11-562 (a). See OCGA § 15-11-561 (c); In the Interest of T. S., 336 Ga.App. at 357-358 (2). If the juvenile court determines that transfer is appropriate and the juvenile appeals that decision, "the function of this Court is limited to ascertaining whether there was some evidence to support the juvenile court's determination . . ., and absent an abuse of discretion, we will affirm the order transferring jurisdiction." (Citation and punctuation omitted.) In the Interest of T. S., 336 Ga.App. at 352-353. Guided by this framework, we turn to the arguments raised by K. S. on appeal.

         1. K. S. contends that the juvenile court erred in finding that there was probable cause to believe that he committed the alleged offenses under OCGA § 15-11-561 (a) (1). Probable cause exists if the totality of the facts and circumstances would warrant a reasonable person to believe that the juvenile committed the alleged offense. See Hughes v. State, 296 Ga. 744, 748-749 (2) (770 S.E.2d 636) (2015). "A probable cause inquiry . . . is a flexible and practical assessment of probabilities given a particular factual context." (Citations and punctuation omitted.) Caffee v. State, 303 Ga. 557, 561 (2) (814 S.E.2d 386) (2018). In a transfer hearing, hearsay evidence is admissible to establish probable cause. See In the Interest of D. C., 303 Ga.App. 395, 400 (3) (693 S.E.2d 596) (2010).

         At the transfer hearing, a juvenile investigator with the Douglas County Sheriff's Office who had reviewed the police investigatory reports pertaining to the 32 car break-ins and the stolen vehicle testified to events as follows. In the early morning hours of July 17, 2015, deputies from the Douglas County Sheriff's Office responded to multiple complaints of car break-ins along several streets of a subdivision in Douglas County, Georgia. In total, the perpetrators had broken into 32 cars, and personal property was taken from several of the vehicles. A Toyota Camry also had been stolen. One victim reported to a deputy that he saw four to five males jumping out of a car and running towards residential yards and vehicles around 4:30 a.m. According to the victim, he saw one of the males carrying a small air compressor, and another victim confirmed that an air compressor had been stolen from his car.

         Later on July 17, an officer with the City of Atlanta Police Department ("APD") observed a Hyundai, which had been reported stolen in a carjacking, traveling down the road, followed closely by the stolen Toyota. The APD officer recognized the occupants of the two cars as being members of a local gang that had a history of breaking into cars but had escalated to stealing cars and carjackings. When the APD officer turned around his patrol car and began following the Hyundai and Toyota, both cars accelerated at a high rate of speed and failed to stop when the officer activated his lights and siren. A high-speed police chase ensued, and a video of the chase recorded on the APD officer's dash camera was admitted into evidence at the transfer hearing.

         As the chase progressed, the Toyota followed closely behind the Hyundai until the two cars separated when the Hyundai struck another vehicle and veered off in a different direction. The Hyundai continued to flee from the pursuing officers, speeding through traffic down surface roads and several interstates before crashing. The four males inside the Hyundai, all of whom were juveniles, fled from the car on foot but were apprehended by the police.

         During the subsequent search of the Hyundai, the police recovered items that had been stolen from several of the cars that had been broken into in Douglas County. The police also recovered from inside the Hyundai a laptop belonging to the owner of the stolen Toyota. One of the juveniles in the Hyundai had a handgun in his possession and keys belonging to two additional vehicles that had been reported stolen in carjackings. Fingerprint evidence linked one of the juveniles to a vehicle involved in a carjacking and linked another one of the juveniles to the scene where the car break-ins had occurred in Douglas County.

         Meanwhile, after separating from the Hyundai, the stolen Toyota continued to flee from the police. The pursuing officers chased the Toyota to an apartment complex, where the three male occupants - an adult and two juveniles - jumped from the still-moving car. Officers apprehended them after a brief foot chase. K. S., who was then 16 years old, was one of the apprehended juveniles.

         After all of the occupants of the Hyundai and Toyota were apprehended, one of them told the police that he believed that K. S. and several of the other juveniles had been involved in the car break-ins in Douglas County. Moreover, one of the occupants admitted that they had all been together earlier that day before the chase had occurred, and a restaurant receipt corroborated his statement. Another one of the occupants explained to the police how a high number of cars could be broken into quickly using a screwdriver and a small rock or brick, and the police found such a rock inside the Toyota.

         The police recovered a cell phone from the Hyundai that had been stolen from one of the Douglas County cars, and a review of its contents by the police revealed that K. S. had begun to reprogram the phone for his own use. Additionally, when K. S. was taken into custody, the police recovered his personal cell phone and obtained a search warrant for it. Photographs, video recordings, and text messages from that phone showed K. S. making gang signs, referencing various gang affiliations, and associating with the other juveniles who had been apprehended. The Facebook pages of K. S. and some of the other apprehended juveniles similarly showed them making gang signs, wearing gang colors, and associating with one another. A compact disc of the photographs and videos recovered from K. S.'s cell phone, and the pictures from the Facebook pages of K. S. and the other juveniles were admitted into evidence at the transfer hearing.

         A sergeant in the Criminal Investigations Division of the Douglas County Sheriff's Office with experience in drug and gang investigations also testified at the transfer hearing. He explained that hybrid gangs are less structured than national gangs, often include members with different gang affiliations, and adopt their own rules and symbols. According to the sergeant, K. S. and the other four juvenile defendants charged in this case were members of a hybrid gang whose modus operandi was breaking into cars and/or stealing them. The sergeant testified that the juvenile defendants used different names to refer to their gang over time, including "Billy Bad Ass," a subset of the Bloods, and "Rollin 60s," a subset of the Crips. The sergeant's opinions were based on the juvenile defendants' Facebook pages, text messages, and cell phone videos and pictures showing the defendants associating with one another, making gang signs, referencing their gang affiliations, and wearing gang colors. The sergeant also relied on information provided to him by the APD officer who initiated the car chase and who, based on his experience, knew K. S. and the other juvenile defendants by name and identified them as being members of a gang known for carrying out car break-ins over the past few years that had escalated to car thefts and carjackings.

         (a) K. S. argues that there was insufficient evidence to establish probable cause to believe that he committed 32 counts of entering an automobile with intent to commit a theft (OCGA § 16-8-18) and one count of theft by taking a motor vehicle (OCGA § 16-8-2) because there was no evidence ...

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