In re J.S.

• Decision Date: 17 February 2009
• Docket Number: No. A09A0462.,A09A0462.
• Citation: 296 Ga. App. 144,673 S.E.2d 645
• Parties: In the Interest of J.S., a child.
• Court: Georgia Court of Appeals

673 S.E.2d 645

296 Ga. App. 144

In the Interest of J.S., a child.

No. A09A0462.

Court of Appeals of Georgia.

February 17, 2009.

Jamie L. Smith, Kevin J. Rodgers, Smyrna, for appellant.

Patrick H. Head, District Attorney, Carrie T. Harris, Assistant District Attorney, for appellee.

BLACKBURN, Presiding Judge.

Following a bench trial in juvenile court, J.S. was adjudicated delinquent after the court found that he had committed acts which, had he been an adult, would have supported convictions for attempt to commit burglary,¹ criminal damage to property in the second degree,² theft by taking of personal property,³ and theft by taking of a motor vehicle.⁴ He appeals, contending that the evidence was insufficient to support the adjudication of delinquency and further arguing that the delinquency petition contained several fatal variances from the evidence adduced at trial. For the reasons set forth below, we affirm in part, vacate in part, and remand for adjudication and disposition consistent with this opinion.

1. The standard of review for adjudications of juvenile delinquency is clear.

In considering a challenge to the sufficiency of the evidence supporting an adjudication of delinquency, 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.

(Punctuation omitted.) In the Interest of A.D.⁵ See generally Jackson v. Virginia.⁶ "Thus, the standard of review on appeal in a case of adjudication of delinquency of a juvenile is the same as that for any criminal case." (Punctuation omitted.) In the Interest of T.T.⁷ "In reviewing such cases, we do not weigh the evidence or determine witness credibility." In the Interest of A.D., supra, 282 Ga.App. at 587(1), 639 S.E.2d 556. See In the Interest of T.N.⁸

So viewed, the record shows that upon returning home from work one evening, Patricia Alcala found that her bedroom door, which she always kept locked while away, had been kicked open and that numerous personal items, including jewelry and small collectible liquor bottles, had been stolen. Based on an argument she had the previous day with her son and some of his friends, including J.S., Alcala suspected that her son and his friends had stolen the items from her bedroom. Consequently, she called the police to report the theft and her suspicion that her son and his friends were responsible.

At approximately the same time that Alcala was reporting the theft of her property, the police received a 911 call from nine-year-old O.C., who lived only a few houses up the street from Alcala. O.C. had been home alone waiting for his older brother to arrive when he heard a loud banging, as if someone was trying to knock down his door, and saw at least two young males outside his house. A minute or so later, O.C. heard a loud crash as a rock was thrown through a back window. He then called 911 to report that someone was trying to break into his house. When the police arrived shortly thereafter, the suspects were gone, but O.C. described one of them as African-American and another as Hispanic and also provided the police with a description of what the suspects were wearing. He further informed the police that during the incident, he had seen a red automobile, which he did not recognize, parked in his driveway.

While O.C. and Alcala were still being interviewed, another officer reported that he had spotted three young males, who matched the descriptions provided by Alcala and O.C., just down the street from where the incidents had occurred and that they had fled into some woods as he approached them. A short time later, two of the young males (Alcala's son, who is Hispanic, and J.S., who is African-American) were apprehended.⁹ Both juveniles were searched, at which time the police found several pieces of Alcala's jewelry in J.S.'s pockets. In addition, the police also located a red Ford Taurus, which O.C. later identified as the vehicle he had seen in his driveway during the attempted burglary, parked down the street from where the incidents had occurred. After running the vehicle's license tag, the police determined that it matched that of a red Ford Taurus that had been reported stolen by its owner a few days earlier. Upon searching the vehicle, the police found more of Alcala's stolen jewelry, as well as some clothes and other items that Alcala had seen in the possession of her son and his friends, including J.S., the previous night.

A complaint and a delinquency petition were filed in juvenile court, charging J.S. with criminal attempt to commit a burglary of the home of Gloria Castro (O.C.'s mother), criminal damage to property in the second degree by throwing a rock through Castro's window, burglary of Alcala's house, theft by taking of Alcala's jewelry and other property, theft by taking of a motor vehicle (the red Ford Taurus), and misdemeanor obstruction of an officer. At J.S.'s bench trial, the victims and the investigating officers testified regarding the events leading up to his arrest. In addition, Alcala's son, who pled guilty to several of the crimes for which J.S. was also charged, testified that J.S. was with him in his home at the time he stole his mother's jewelry and when he attempted to break into Castro's home. After the trial, the juvenile court dismissed the burglary and obstruction charges but found that J.S. had committed attempted burglary, criminal damage to property in the second degree, theft by taking of Alcala's jewelry and other property, and theft by taking of a motor vehicle. As a result, the juvenile court adjudicated him delinquent and recommended long-term commitment to a youth detention center. This appeal followed.

2. J.S. contends that the evidence was insufficient to support the findings that he committed the acts for which he was adjudicated delinquent, arguing that the juvenile court's findings were improperly based on circumstantial evidence and that the State failed to prove venue. We first address the issue of venue and conclude that J.S.'s argument is without merit. At trial one of the investigating officers testified that all of the acts alleged in the delinquency petition occurred in Cobb County. Such testimony was sufficient to prove venue beyond a reasonable doubt. See Green v. State.¹⁰ We now consider, in turn, each of those acts for which J.S. was adjudicated delinquent.

(a) Attempt to commit burglary. "A person commits the offense of burglary when, without authority and with intent to commit a felony or theft therein, he enters or remains within the dwelling house of another...." OCGA § 16-7-1. "A person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime." OCGA § 16-4-1. "Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime." OCGA § 16-2-20(a). Additionally, "[t]o warrant a conviction on circumstantial evidence, the proved facts need only exclude reasonable hypotheses—not bare possibilities that the crime could have been committed by someone else." In the Interest of M.C.A.¹¹ "Questions of reasonableness are reserved for the factfinder, and we will not disturb its finding that the evidence was sufficient to exclude every reasonable hypothesis save that of guilt unless the adjudication is unsupportable as a matter of law." Id. at 772(2), 589 S.E.2d 331.

In this matter, O.C. testified that a couple of young males, including a person matching J.S.'s description, were banging loudly on his door and then threw a rock through his back window in an attempt to break into his home. J.S. argues that O.C.'s testimony was contradictory in that although his description of one of the young males fit J.S., he testified that he did not specifically see J.S., whom he knew, with the perpetrators. However,

[t]he weight and credibility of witnesses are questions for the triers of fact; that some evidence offered by a witness seems contradictory to his own or to some other's, or incomplete or uncertain, does not automatically discredit the evidence given by that witness, or others, for it is the function of the triers of fact to determine to what evidence it gives credence. It is not for [this Court] to determine or question how the [trier of fact] resolved any apparent conflicts or uncertainties in the evidence. Rather, on appeal, we indulge every contingency in favor of the verdict.

(Punctuation omitted.) In the Interest of J.L.H.¹²

In addition, Alcala's son, who pled guilty to the attempted burglary, testified that J.S. was with him when he and a third friend tried to break into Castro's home in order to steal some property belonging to O.C.'s older brother. "While mere presence at the scene of a crime is not sufficient evidence to convict one of being a party to a crime, criminal intent may be inferred from presence, companionship, and conduct before, during and after the offense." (Punctuation omitted.) Armour v. State.¹³ Here, J.S. was not only at the scene of the crime, he also matched the description of the person O.C. saw approach the door just before the loud banging started. Furthermore, the act of throwing a rock through Castro's window constituted a substantial step toward the commission of burglary. See Flanagan v. State.¹⁴ Thus, the evidence was sufficient to allow the juvenile court to find that J.S. participated in the offense of attempted burglary. See id. at 125-126(2), (3), 592 S.E.2d 894.

(b) Criminal damage to property in the second degree. J.S. contends that the State failed to offer sufficient evidence to support the juvenile court's finding that he committed the act of criminal damage to property in the second degree. Specifically, he argues that the...