In Re Dm
706 S.E.2d 683
Ga. Ct. App.2011Background
- A delinquency petition was filed in DeKalb County Juvenile Court accusing 14-year-old D.M. of multiple offenses including two counts of aggravated assault with a deadly weapon, criminal street gang activity, possession of a handgun by a minor, possession of a firearm during a crime, and carrying a pistol without a license.
- The juvenile court adjudicated D.M. delinquent on all charges and imposed a designated felony sentence of 60 months, with 48 months in restrictive custody.
- D.M. challenges the sufficiency of the evidence for the gang activity adjudication, objects to potential merger of the weapon offenses, and raises an ineffective-assistance-of-counsel claim.
- Evidence showed D.M., his brother, and another male fired at Deshaun Hooker and his brother; D.M. and D.T. were identified as Gangster Disciples; a detective testified D.M. admitted gang membership; a black bandana was linked to Gangster Disciples and described as signaling a gang act.
- Georgia law requires a nexus between the enumerated act and an intent to further street gang activity for a conviction under OCGA § 16-15-4(a); the court concluded the evidence established such a nexus.
- This appeal was the first opportunity to raise the ineffective-assistance claim, and the court remanded to the juvenile court for a hearing on that issue, while affirming the adjudications and disposition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for criminal street gang activity | D.M. argues no nexus or gang membership proven. | State asserts admissions, gang testimony, and symbols prove gang activity. | Sufficient evidence supports gang activity adjudication. |
| Merger of carrying a pistol without a license and possession of a handgun by a minor | Same facts prove both offenses; offenses should merge. | Statutes require different elements; no merger. | No merger; separate offenses upheld. |
| Ineffective assistance of counsel claim | Counsel ineffective; need evidentiary development. | Record insufficient to resolve effectiveness on appeal. | Remand for an evidentiary hearing on ineffective assistance. |
Key Cases Cited
- In the Interest of C.R., 294 Ga.App. 164, 669 S.E.2d 193 (2008) (sufficiency review in delinquency adjudications)
- In the Interest of X.W., 301 Ga.App. 625, 688 S.E.2d 646 (2009) (gang activity evidence and implications)
- In the Interest of C.P., 296 Ga.App. 572, 675 S.E.2d 287 (2009) (evidence of gang affiliation and acts to further gang activity)
- Warren v. State, 245 Ga.App. 768, 538 S.E.2d 840 (2000) (sufficient evidence for gang-related activity considerations)
- Drinkard v. Walker, 281 Ga. 211, 636 S.E.2d 530 (2006) (test for multiple offenses, inclusion vs merger)
- Blanch v. State, 306 Ga.App. 631, 703 S.E.2d 48 (2010) (no merger where each offense requires proof of a fact not required by the other)