Sixteen-year-old J. C. was adjudicated delinquent for shoplifting, and argues on appeal that the State’s evidence against him was insufficient because it was based on inadmissible hearsay and that the juvenile court judge did not comply with the requirements of OCGA § 15-11-21 (e) in ruling upon J. C.’s request for rehearing. For the reasons that follow, we affirm in part, reverse in part, and
In reviewing a delinquency adjudication, “we construe the evidence and every inference from the evidence 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.” (Citations and punctuation omitted.) In the Interest ofT. T,
So viewed, the evidence demonstrates that a security guard at Macy’s was watching customers via the store’s closed circuit television (CCTV) system when he saw J. C. select a Polo hat from the merchandise on sale and put it down his pants. Within less than one minute, the guard arrived on the sales floor and watched J. C. leave the store. The guard then followed him out the doоr and apprehended him. J. C. did not have the hat on him, but told the guard he had taken it out of his pants and put it back.
1. J. C. contends the trial court erred in considering the security guard’s testimony, arguing that it was inadmissible hearsay because it was “based on a video that was not introduced into evidence at the adjudicatory hearing.”
In juvenile proceedings, the standard of proof on chargеs of a criminal nature is the same as that used in criminal proceedings against adults — proof must be beyond a reasonable doubt. An adjudication of delinquency cannot be based on hearsay, as hearsay is inadmissible, without probative value, and carries no weight whatsoever in establishing a fact.
(Citations and punctuation omitted.) In the Interest of C. G.,
In this case, however, the guard did not testify based on his
2. J. C. also asserts that, even if the security guard’s testimony was admissible, the State’s evidence was still insufficient tо prove beyond a reasonable doubt that he committed theft by shoplifting. The State’s delinquency petition against J. C. alleged he committed the offense “when he did, with the intent of appropriating merchandise to his own use without paying for the same, take possession of and conceal a hat.” The petition tracks the language of the shoplifting statute, OCGA § 16-8-14 (a) (1). J. C. contеnds the State failed to prove he ever had possession of the hat, because “a reasonable fact finder might question whether [the guard] accidentally misidentified J. C. as the individual on the video,” and because J. C. did not possess the hat when he was apprehended.
First, as discussed in Division 1, the guard did not identify J. C. based on a videotape; he identified him based on his observation of him thrоugh a CCTV monitor. That a factfinder might question the guard’s testimony does not make the evidence insufficient, but raises a credibility issue going to the weight of the evidence.
Second, evidence that J. C. put the hat down his pants is sufficient to establish his intent to shoplift it, regardless of whether he left the store with it. OCGA § 16-8-14 (a) (1) provides that a person commits the offense of shoplifting when he conceals mеrchandise with the intent of appropriating it to his own use without paying for it or depriving the owner of its possession. “[C]riminal intent may be inferred from the words, conduct, demeanor, motive, and all оther circumstances connected with the act for which the accused is prosecuted,” and removing the merchandise from the store is not required to establish criminal intent. (Punctuation оmitted.) K-Mart Corp. v. Coker,
Here, the guard began watching J. C. because he was in the men’s Polo department, a high-crime area of the department store.
Although the evidence is legally sufficient to sustain an adjudication of delinquency, we note that the evidence does not demand such an adjudication. Whether to adjudicate J. C. delinquent on this evidence is a decision that is committed in the first instance to the trier of fact.
3. Finаlly, J. C. contends the juvenile court’s order denying his rehearing request was legally deficient. OCGA § 15-11-21 (e) provides that, upon the issuance of an associate juvenile court judge’s order following a hearing, a rehearing by the judge “shall be ordered if a party files a written request therefor within five days after receiving a copy of the order of the associate juvenile court judge.” In rеsponse to such a request, the juvenile court judge must “make de novo findings and recommendations after conducting a de novo review of the original evidence that the [associate juvenile court judge] had considered.” In the Interest of M. E. T,
J. C. argues that the order оf the juvenile judge did not include de novo findings and recommendations in the order, and erroneously “denied” his motion for rehearing. In M. E. T, we reversed the juvenile court’s order issued in response to а motion for rehearing under this Code section, formerly OCGA § 15-11-10 (d).
In reversing the adjudication, we concluded that the judge failed to follow the statutory requirements for a rehearing or reconsideration de novo, which is more than an appellate reviеw of the associate judge’s findings and recommendations. M.E. T, supra, 197 Ga. App.
In response to J. C.’s motion for rehearing in this case, the juvenile court judge stated that the case was heard before one associate judge for an adjudicatory hearing and another associate judge for a dispositional hearing. The order then рrovided:
The undersigned has reviewed the matter in accordance with Rule 19-2 of the Uniform Rules for the Juvenile Courts of Georgia by reviewing the pleadings and the electronic recordings of thе original proceeding. Upon review and consideration of the same, IT IS HEREBY ORDERED that the Motion for Rehearing be DENIED.
While the language of this order may suggest that the judge conducted a de novo review, as the State argues, the judge plainly erred in “denying” J. C.’s motion for rehearing. “[T]he disposition that the juvenile court judge was authorized and required to make was a de novo determination as to appellant’s delinquency, not an order granting or denying appellant’s [motion].” M. E. T, supra,
Judgment affirmed in part and reversed in part, and case remanded with direction.
Notes
We note also that nothing in the record еstablishes that the incident was even recorded, although the presence or absence of a recording is not dispositive. Because the admissibility of a recording is not an issue in this case, the facts do not implicate the Confrontation Clause or the admissibility of testimonial statements from unavailable witnesses, as was the case in Crawford v. Washington,