Following a bench trial for the charges of battery and violating the Georgia Street Gang Terrorism and Prevention Act,
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
So construed, the record shows that following a pep rally in the Tattnall County High School gymnasium, T. W., a student, was surrounded by four other students, A. M., S. W., D. R., and A. G., who took turns striking him around his head. Sergeant Jones, an officer on duty at the school, searched all four students within an hour and a half after the incident. A notebook was found on A. M. that had “G-ville 912” written on the outside cover. A. M. testified that the writing was not gang-related and was short for his town, Glenville, and its zip code. However, Jones, who was certified by the trial court as an expert on gangs, testified that “G-ville 912” was written in a style associated with gangs. A bandana with a currency print was found on A. G., and purple bandanas were found on S. W. and D. R. Jones concluded that the bandanas were gang-related because of the particular way they were folded and instructed the court that the different patterns could identify member rankings within a gang. However, Jones also noted that he had not seen purple bandanas identifying with gang membership at the school before, and that bandanas signifying gang membership at the school “are normally red, white, or black.” Additionally, Jones testified that he did not know the current name of any gang within the school or its members because they change names so often.
None of the juveniles challenge their adjudication of the predicate offense — battery. Rather, they contend that the state failed to show that they were associated with an organization that fits the definition of “criminal street gang.” All four juveniles were charged with violating OCGA § 16-15-4 (a), which makes it unlawful for persons associated with a “criminal street gang” to engage in “criminal gang activity” by committing certain enumerated predicate offenses, including battery.
The statute clearly contemplates that the existence of such an organization, and that its members are “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.”
The only evidence presented by the state that the four juveniles in this case are members of a criminal street gang was the testimony from Jones that the three bandanas found on A. G., S. W., and D. R. were indicia of gang membership and that the writing on A. M.’s notebook was written in a style associated with gangs. Giving credence to Jones’ testimony, as we must,
Here, there was no evidence beyond the bandanas and a notebook to link the juveniles to membership in a criminal street gang. Jones did not describe the “G-ville” gang or testify about any of their activities, let alone their involvement in any criminal activities. To be a member of a “criminal street gang,” the group or organization must be “engage[d] in criminal gang activity as defined in paragraph (1)” of OCGA § 16-15-3. To sustain a conviction, the state must prove that the criminal gang activity or plans for its continuation was ongoing at the time of the commission of the indicted offenses; “in other words, the commission of an enumerated offense by the defendant is not itself sufficient to prove the existence of a ‘criminal street gang.’ ”
Because the state failed to establish that a “criminal street gang” was involved in the battery, we need not address appellants’ remaining enumerations: that the state failed to establish a nexus between the battery and an intent to further street gang activity, that the trial court relied upon impermissible hearsay evidence, and that the trial court considered evidence that was never introduced in the record in the final orders. The judgments on the counts charging criminal street gang activity are reversed in all four cases.
Judgments reversed.
Notes
OCGA § 16-15-1 et seq.
(Citations and punctuation omitted.) In the Interest of J. M.,
In the Interest of G. J.,
OCGA § 16-15-3 (1) (J).
OCGA § 16-15-3 (2).
Id. Accord In the Interest of X. W.,
Rodriguez v. State,
The trial judge, as trier of fact, clearly chose to believe Jones’ explanation behind the bandanas and notebook drawing, and “it is not our function to second-guess the factfinder on such questions of credibility.” In the Interest of J. M., supra at 300 (1).
Supra at 629 (2).
(Punctuation omitted.) Morey v. State,
Rodriguez, supra.