State v. Ware A02A1873 (12/13/02) 02 FCDR 3639
Transfer


At the age of 14 Ware was charged in superior court with having committed two counts of aggravated child molestation, one count of sexual battery and two counts of child molestation upon three of his cousins. Ware moved to transfer the case to juvenile court citing his immaturity, lack of previous trouble with the law or in school and the circumstances surrounding the incidents. After testimony from an investigator a therapist and Ware’s father, the motion was granted because the "youth of the child" made the case extraordinary within the meaning of OCGA § 15-11-28 (b) (2) which allows transfers of certain types of cases for extraordinary cause. Aggravated child molestation is one of the transferable cases because it is punishable by 10 to 30 years in prison and not by death, life imprisonment or life without parole.

The therapist testified that Ware was socially immature and irresponsible, preferring to play with younger children and doing activities enjoyed by younger children. Since Ware’s age fell on the lower end of the 13-17 range for trial in superior court and based on the evidence that his maturity level fell one or two years below the minimum the trial court judge being concerned about Ware’s age, felt that he would benefit from the more tailored approach available in the juvenile justice system.

The state appealed and the Court of Appeals affirmed, citing that the legislature intended to give discretion to the judges of the superior court in determining whether to transfer a case to juvenile court. There was no evidence presented by the state to show that the superior court abused its discretion.

In the Interest of L.J.P A02A2114 (11/22/02) 02 FCDR 3640
Attempted Robbery, Aggravated Assault, Statement, Identification


LJP appeals the his adjudication of delinquency citing that there was insufficient evidence to support the finding and that the juvenile court erred in denying his motion to suppress. The Court of Appeals, finding no error, affirm. Javier Ramos and his father arrived home and as Ramos is getting out of the car a gray car drives by and the white female driver calls out to him. She goes past and down to the stop sign and return. As he goes to the car three young black males approached him. The one wearing red shorts and shirt put a gun to Ramos’ head and demanded all his money and valuables. Ramos’ father came out and the gun was pointed at him. The three males got into the gray car and left.

Ramos gave a description of his assailants to the police including the fact that the gunman was wearing red shorts and shirt. He also gave a description of the car and a partial tag number. A short time later a police officer pulled over a vehicle matching the description but released it because he did not have a full description of the assailants. After hearing a full description of all involved the officer realized that he had stopped the right car. The car was found a short time later at a residence with the engine still warm. Three of the other assailants were observed running from one house to another whose door was opened by a fourth individual matching Ramos’ description. LJP was found in the house where the car was parked still wearing red shorts and shirt. Ramos was brought to the house where he identified LJP as being the gunman. LJP was arrested After he had been given his Miranda warnings LJP made a statement admitting that he was in the car, that he went to Ramos’ house and that he was outside of the car when another member of the group placed the gun to Ramos’ head. At trial SB, a witness, testified that LJP was present at the incident but that he was not the gunman though one of the guns used belonged to LJP and that LJP was wearing red pants and a red shirt.

The court finds that the evidence was sufficient to sustain an adjudication of delinquency. The court also found that there was no error in denying LJP’s motion to suppress because knowing the facts were sufficient to warrant the belief that LJP had committed the offense, the officer was authorized to arrest LJP without a warrant and therefore such warrantless arrest provides no ground for the exclusion from evidence of LJP’s statement. LJP’s also argues that he was one of two individuals standing outside when Ramos was brought to make the identification but that he was the only one in red shorts and shirt which made the identification one-on-one and suggestive. The court stated that one-on-one identifications, where necessary due to the practicalities of the situation, are not impermissibly suggestive. Here Ramos had stated that he had an opportunity to observe the suspect when he first came toward him. LJP fit Ramos’ earlier description of the gunman and LJP still fit the description twenty minutes later when he was identified. Additionally, a car matching the one described by Ramos as being the involved in the incident was parked at the residence where LJP was found with the engine still warm.

In the Interest of J.C. A02A1323 (9/30/02) 02 FCDR 2933
Right to Remain Silent, Confrontation Right, Reckless Driving


Fifteen year-old J.C. challenged the sufficiency of the evidence and the fundamental fairness of the adjudicatory proceeding after the juvenile court adjudicated her delinquent upon finding that she committed the offense of reckless driving. The Appellate court reversed finding that though the evidence was sufficient, the proceeding was fundamentally unfair.

Officer Mark Terrell noticed a car "flying down the highway" and "passing cars like a rocket." The road was wet from an earlier rain which also caused mist to come from the other cars. From the opposite side Terrell registered speed of 112 miles per hour twice, with his radar unit. He then contacted an officer on the side of the highway that J.C. was on, described the driver and car and asked that he make the traffic stop. Upon arrival at the scene, Terrell confirmed that the driver was whom he had seen driving and identified the car. J.C.’s mother was in the car and after being told what the speed was asked that the equipment be checked for accuracy. The radar checked out perfectly and J.C. was given a citation for speeding. Her mother was given a citation for allowing J.C. to speed. J.C. only had a learner’s permit.

Lowndes county petitioned to have J.C. adjudicated delinquent and the Juvenile court granted the petition. The Appellate court agreed with the juvenile court that J.C. was driving in reckless disregard for the safety of a person or property. The appellate court however, found that since the adjudicatory phase of a delinquency proceeding is the equivalent of a trail in a regular proceeding, a juvenile is entitled to the same rights and privileges necessary for a fair trail. Those include the right against self incrimination and the right of cross examination.

The family had moved out of the state and so they did not receive the delinquency petition and summons until 5 days before the hearing. The father was unable to retain counsel for J.C. before the hearing. Upon arrival at the hearing, J.C. and her father signed an "Acknowledgment of Rights" form upon which they indicated that they wanted an attorney. The only witness called at the delinquency proceeding was Terrell who was asked several questions. J.C. was asked one question which she answered. The court asked if they had anything to say and the judge was informed by a court official that J.C. wanted an attorney. The father explained to the judge why they had not hired an attorney and the judge told them that it was their responsibility to hire one and that it was "too bad" that they had not done so by the court date. Neither J.C. nor her parents had been sworn in as witnesses but answered questions asked of them by the court.

The Appellate Court agrees with J.C. that her rights were violated when the court did not allow her the opportunity to cross examine its only witness and that her right to self incrimination was also violated. The court questioned Terrell and then questioned J.C. and her parents. Not stopping long enough for them to question the witness. The juvenile court did little to protect J.C.’s right to confrontation. Additionally, J.C. was not advised of her right to remain silent or the consequences of foregoing that right. The Acknowledgment of rights form only advised that she did not have to speak and that her silence would not be used against her but there was nothing about the statements that she did make being used against her. The court also erred when it questioned J.C. and her parents without placing them under oath.

Pope, Senior Appellate Judge, concurring specially.

Pope writes that in order for the expenditure of judicial resources on such a case could be avoided in the future if the Acknowledgment of Rights for was revised to include a complete statement of juvenile defendants’ rights. He also states that juvenile court judges must make sure that defendants are fully apprized of their rights and that those rights are protected during proceedings.

Judge Barnes joined Judge Pope in the concurring opinion

In the Interest of T.H. A02A1603 (9/26/02) 02 FCDR 2864
Traffic Offenses


The State filed a petition for delinquency stating that T.H. violated O.C.G.A.§ 40-5-20 by driving his dirt bike without a license and a petition claiming that T.H. was unruly for committing curfew violation. The juvenile court adjudicated T.H. delinquent and he appeals claiming that the guilty finding was in error because there was no evidence to support a finding of unruliness under O.C.G.A. §15-11-2. The Appellate Court supported the guilty verdict for the traffic offenses but reversed the adjudication that T.H. was unruly. The Court finds that the state did not prove that T.H. was wandering or loitering the streets between 12:00 a.m. and 5:00 a.m. as required by O.C.G.A. §15-11-2 (12) (E).
T.H. was riding his dirt bike at around 12:25 a.m. with no insurance, taillights, headlights or tag. Upon stopping him the police also determined that he had no license. One of the officers testified that the dirt bike, though equipped for off- road use, it could not be used on the street as it was not "street legal." T.H. claims he fell asleep at his grandmother’s house and did not realize what the time was. He was on his way to his home which was about two blocks from his grandmother and within view of where he was stopped.

On appeal T.H. claim that he is not guilty of the traffic offenses because he rode the bike on the shoulder of the road not on the street. Both Officers testified that T.H. was riding on the street. Additionally another Officer testified that he had given T.H. a warning and spoken with his mother about two weeks earlier when T.H. was observed operating his dirt bike on a public street. The Appellate Court found sufficient evidence to support the guilty verdict on the traffic offenses.

The Court found no evidence that T.H. was loitering or wandering the streets. The State argues that wandering, according to The Random House Webster’s Unabridged Dictionary, p. 2144 (2d ed.) (1997), means to "to travel about, on or through" and since T.H. said that he was traveling from his grandmother’s house to his, he was wandering. The fact that he was moving from point A to point B regardless of purpose, is sufficient for the State to claim wandering. The Appellate Court disagrees. The Court only found the definition that the State gave for wandering in one dictionary, the one used by the state. Others used words like, aimlessly, without purpose or plan, roam and stray. In construing the statute according to its most natural and obvious import of the language the Court found that wandering means "to go about aimlessly and without purpose or destination, or in current vernacular-hanging out or roaming the streets." The Court finds that a juvenile returning home or going somewhere specific is not wandering within the meaning of the statute.

In the Interest of R.W. A02A1277 (9/19/02) 02 FCDR 2773
Theft by receiving


The Court of Appeals affirmed the juvenile court’s ruling that R.W. committed delinquent acts which would constitute the crime of theft by receiving stolen property if he were an adult. R.W. appeals contending that the juvenile court erred in finding beyond a reasonable doubt that he possessed the purse and that consequently the ruling that he was delinquent was in error.
Sixteen-year-old R.W. lived downstairs in the same building as 81-year-old Annette Gray. Gray came home one day and was on her way upstairs to her apartment when someone came out of a closet, pushed her down and took her purse. The attacker’s face was covered. A few days later R.W.’s mother found a black purse in R.W.’s room under some clothes in a laundry basket. The checkbook inside had Gray’s name and the mother called the police. R.W. admitted to police more than once that he knew that the purse was stolen and that it was in his room but that he did not steal it. He at first said one name as the perpetrator but later gave a different name. At trial R.W. denied touching the purse.

On appeal R.W. argued that even though the purse was found in his room it cannot be presumed that it was in his possession. If the presumption was there, it could be rebutted by the showing that others had equal access. The court found that a 16-year-old minor would have some degree of privacy and control in his room and that no evidence showed that R.W.’s friend had equal access. R.W. admitted that he knew the purse was in his room and that it was stolen and even though he claims that his friend admitted that he stole the purse, the court did not have to believe that testimony since it contradicted the earlier statement on who was the perpetrator. Whether the juvenile court believed that R.W. and his friend were both involved or that R.W. only became involved after the fact, the finding of delinquency was justified.

In the Interest of B.Y. A05A1474; A02A1584 (9/3/02) 02 FCDR 2610
Transfer, Statement


The juvenile court heard evidence that B.Y. and D.A.B., both 16 at the time of the alleged offenses, participated in a home invasion and attack in an attempt to rob the victims. One of the victims was knocked to the floor with a baseball bat and hit with it repeatedly while she lay on the floor. Multiple stitches were required to close a gash on her head.
The court of appeals, finding no abuse of discretion, affirmed the order of the juvenile court transferring the prosecution of B.Y. and D.A.B., for aggravated assault and attempted armed robbery, to the superior court pursuant to O.C.G.A. § 15-11-30.2. The statute gives the court discretion to transfer a case to the superior court if there were reasonable grounds to believe that the child committed the delinquent acts; that the child is not committable to a mental institution; that the interest of the community and the child require legal restraint and transfer, and that the child was at least 15-years of age. There was evidence to support the juvenile court’s determination that the statutory requirements for transfer were met.

The court determined that due to the seriousness of the alleged offenses, the interests of the community and the children mandated transfers to the superior court for prosecution. B.Y. also argued that the voluntary statements that he made in the presence of the officer, admitting that he was present at the time of the attack, should have been inadmissible because he had not been informed of his Miranda rights. Miranda warnings were not required because B.Y. was not in custody or deprived of his freedom at the time that he made the statements.

In the Interest of Q.M.L. A02A1127 (8/9/02) 02 FCDR 2428
Aggravated Assault


Q.M.L. stabbed a school mate with a knife on the school bus but claimed that she did so in self defense. The victim hit Q.M.L. from behind and Q.M.L. elbowed her, stood up, turned around and stabbed the victim. She tried to stab the victim again but the victim grabbed and held the knife away and others held Q.M.L. who wanted to be let go so that she could "kill" the victim. She had the knife hidden in her seat.
Q.M.L. claimed that there had been rumors that the victim intended on stabbing her and that the victim’s arm position caused her to believe that the victim had a knife.

The juvenile court found that when Q.M.L. turned around before stabbing the victim, she saw that there was no knife and so there was no reason to believe that her life was in danger and as such, no justification for the use of deadly force. Being struck by another’s fist does not justify using a knife to stab that person. The court of appeals affirmed.

In the Interest of C.S., A01A1761 (8/28/01):
Aggravated Assault


C.S. was found delinquent of aggravated assault on a police officer. The officer had responded to a disturbance call and the residence of C. S. and her family. When he arrived, he found her standing in the kitchen holding a knife at her side, which was pointed at the ground. Although he repeatedly told her to drop the knife, she never did so, even after he pulled his gun. She stayed still and continued to hold the knife at her side. Her father eventually got the knife from her.
At the hearing, her father testified that he had taught her that she should stop if a policeman ever said anything to her and he felt that that was what she was doing.

The Court held that there was no evidence that C. S. had committed or performed any substantial step towards committing the offense charged. The Court found that the only thing C. S. did was refuse to obey the officer’s instruction, and inaction does not constitute a substantial step. The court reversed the delinquency finding.

In the Interest of G. J., A01A1977 (8/20/01):
Battery


G.J was found delinquent of hitting a teacher. Although he denied it and said that another student had done it, he did not identify the other student. Once inside the principal’s office, he admitted hitting the teacher, but said it was an accident. The Court found that, despite conflicts in the testimony, there was sufficient evidence to find G. J. delinquent.

In the Interest of D.G., 248 Ga. App. 417, 546 S.E. 2d 359 (3/05/01):
Circumstantial Evidence


D.G. was convicted of aggravated assault and was treated as a designated felon. Three victims testified that they were sitting on a car when another car drove by and fired shots, wounding all three. None of the victims could identify D.G. One victim testified that all he noticed was a "black car".
The officer dispatched to the scene got a radio call that a blue and silver car that was the subject of an earlier lookout had been found. The officer went to where the car was found. There was a busted out window, bullet casings in the back seat and the motor was still running. The car was impounded and D.G.’s palm print was lifted from the left door of the car. D.G. denied being in the car, and one of the victims testified that was not the car that the shots were fired from. The car was identified as belonging to someone other than D.G.

Two of the victims testified that they had seen D.G. the day before and, although they did not see a gun, two shots were fired in their direction. They also testified that D.G. was wearing a red bandana on his head to signify gang membership.

The Court of Appeals agreed with D.G.’s assertion that the evidence against him was entirely circumstantial and reversed.

In the Interest of J.R., 248 Ga. App. 333, 546 S.E. 2d 67 (2/28/01):
Child Molestation


The Court of Appeals found that there was sufficient evidence to support the adjudication of delinquency. The victim testified that she woke up and he was feeling all over her. Three outcry witnesses also testified that she told them the same thing the next day.

In the Interest of A.M., 248 Ga. App. 241, 545 S.E.2d 688 (2/22/01):
Justification, Restrictive Custody


A.M., who was twelve, was found delinquent of aggravated assault and aggravated battery and was sentenced to restrictive custody. The Court found that despite A.M.’s claim of self defense, several witnesses testified differently and therefore the evidence authorized a rational trier of fact to find her delinquent.
The Court also found that there was no error in sentencing A.M. to restrictive custody, even though she did not have a prior record. There was no abuse of discretion in finding that the community needed protection from A.M.

In the Interest of B.K.M., 247 Ga. App. 588, 544 S.E. 2d 504 (01/18/01):
Search and Seizure.


The State appealed the Juvenile Court’s order granting a motion to suppress after a Terry stop of the car in which the juveniles were riding. The Court of Appeals held that reasonable articulable suspicion existed to justify the stop and reversed the lower court’s ruling.
Police officers had received several reports of two young men driving a small teal green vehicle shooting darts at people with a blow gun. The police issued a BOLO for the car, and stated that the driver was a white male with a crew cut and the passenger was a black male. As officers drove around in the area where the incidents had occurred, they saw a car and it’s driver and passenger who fit the description. They stopped the car, and the driver did not have a valid license. There were also illegal fireworks in plain view on the back seat.

Although the Juvenile Court held that because the stop took place a day after the last incident and several days after earlier incidents, the stop was not justified. The Court of Appeals held that this was an ongoing pattern of criminal activity and not a single incident and therefore the stop was not unreasonable.

In the Interest of B.J.W., 247 Ga. App. 437, 543 S.E. 2d 811 (12/28/00):
Juveniles


B.J.W.’s case was transferred to Superior Court and he appealed that order. He also alleged that the Court did not balance his amenability to treatment in the juvenile system with the interests of the community. The Court of Appeals remanded the case, because the Juvenile Court did not show in it’s order that the interests had been balanced.
B.J.W. was charged with aggravated assault on a teacher, a well as possession of a knife. The State theorized that the case should be transferred even if B.J.W. was amenable to treatment in the Juvenile system, alleging that the community’s interests outweighed those of B.J.W.

The Court of Appeals remanded the case to the Juvenile Court because the order did not state the facts upon which the Juvenile Court reached its conclusion. The Court held that the Juvenile court’s order must contain those facts.

In the Interest of K.J.T., 246 Ga. App. 660, 542 S.E.2d 514 (11/06/00):
Transfer Hearing, Mental Illness


K.J.T. was charged with being a party to an aggravated assault. The State sought a transfer to Superior Court and a psychological evaluation was done. At the hearing, the Juvenile Court judge granted the transfer. The psychologists opinions were that K.J.T. was behaving bizarrely, hearing voices, making strange hand movements and that he was disoriented and thinking illogically. They recommended that he be admitted to a psychological facility.
The Court of Appeals reversed the transfer, holding that the Juvenile Court had abused its discretion, since the State did not carry its burden of showing reasonable grounds to believe that K.J.T. was not committable to an institution for the mentally ill, as required by statute.

In the Interest of K.D.J., 246 Ga. App. 500, 540 S.E. 2d 682 (10/24/00):
Evidence: Hearsay


K.D.J. was charged with eight delinquent acts. He was found delinquent of five. On appeal, he argues that the court improperly allowed testimony from the victim’s mother that he had been in her home, alleging that she had no personal knowledge of same. The Court held that K.D.J.’s attorney had induced the error and therefore could not complain.
The Court also held that the officer’s testimony was not hearsay because it was testimony about the legal circumstances surrounding the arrest.

In the Interest of N.A., 246 Ga. App. 204, 539 S.E. 2d 899 (10/02/00):
Fornication


N.A. was found delinquent of the offense of fornication. She argues that because she was under 12 and could not legally consent, she could not commit the offense of fornication.

The Court of Appeals held that the issue of consent as applied to statutory rape does not apply to the offense of fornication. The court also held that N.A. was not found guilty of a crime, but was found to have committed a delinquent act.

The Court also held that her statement was admissible. N.A. argued that because she did not understand that she could be charged with delinquency as a result of her statement admitting to sexual intercourse, the statement should not have been admitted. The Court looked at the nine factors to be taken into account when assessing whether a juvenile has waived her constitutional rights and found that N.A.'s statement was voluntary.

In the Interest of A.T., 246 Ga. App. 30, 539 S.E. 2d 540 (9/15/00):
Due Process


A.T. was charged with possession of marijuana. He went with his guardian to the detention hearing, but did not have an attorney. At that hearing, the prosecutor announced that the State would be proceeding under the provisions of the designated felony act. (O.C.G.A. §15-11-63). At the adjudication/disposition hearing, A.T.’s attorney objected to restrictive custody because the State gave no notice to the attorney. The Court placed A.T. in restrictive custody.
The Court of Appeals held that due process does not require written notice that the case is proceeding under the provisions of the designated felony act. The Court also held that due process does not require a notice in the petition.