                            SECOND DIVISION
                              MILLER, P. J.,
                         DOYLE, P. J., and REESE, J.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                   January 25, 2018




In the Court of Appeals of Georgia
 A17A1681. IN THE INTEREST OF T. W., a child.

      REESE, JUDGE.

      Following a bench trial, the juvenile court found T. W. delinquent for

committing the offenses of possession of a pistol by a person under the age of 18 and

participation in criminal street gang activity. In his sole enumeration of error on

appeal, T. W. challenges the sufficiency of the evidence for the offense of

participation in criminal street gang activity.1 For reasons that follow, infra, we

reverse the adjudication of delinquency to the extent it was based upon a finding that

T. W. had participated in criminal street gang activity.




      1
        T. W. does not challenge the juvenile court’s adjudication of delinquency to
the extent the adjudication was based on his admission to the charge of illegally
possessing a firearm.
      “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 the juvenile committed the acts charged.” In the Interest of W. B., 342 Ga.

App. 277 (801 SE2d 595) (2017) (citation and punctuation omitted). In so doing, we

do not weigh the evidence or determine witness credibility. See id.

      So viewed, the evidence shows that, in January 2017, corrections officer Kevin

O’Steen was supervising a prison work detail that was approached by a group of

young people. O’Steen told them to leave, and the group walked over to an

abandoned house across the street. After watching one of the group break a window

at the house, O’Steen called police. When police arrived on the scene, the group

dispersed.

      Police Sergeant Matthew Wilson approached T. W., who had started walking

away from the house with his cousin, Charshaun Simmons. According to Wilson,

T. W. appeared to be of school age, so he stopped him to ask him why he was not in

school. While speaking with T. W., Wilson observed that T. W. was palpably nervous

and kept his hand in his pocket, and the officer asked T. W. to take his hand out of

the pocket. The officer searched T. W. and found a .22 caliber handgun in his pocket.

                                          2
      T. W. was taken to the police station, where he gave a recorded statement.

T. W. told an investigator that Lawrence Bell, one of the other young people who had

been at the house, originally had the gun. When police officers approached them, Bell

slid the gun toward T. W. and told him to take it because, as a juvenile, T. W. would

get a lighter sentence if he was caught. Although T. W. claims he initially refused to

pick up the gun, he ultimately picked up the gun and put it in his pocket before

walking away from the house.

      The State filed a delinquency petition against T. W. based upon the offenses

of possession of a pistol by a minor and participation in criminal street gang activity

as a member of the “Folk Nation” gang. At the delinquency hearing, the State

tendered certified copies of criminal convictions for Simmons and Bell showing that

the two were affiliated with gangs. In 2014, Bell – then a juvenile – admitted to

participating in street gang activity as a member of the Folk Nation gang. Simmons

was adjudicated delinquent for participating in street gang activity as a member of the

“Bloods” street gang.

      The State tendered Detective Garrett Wright as an expert witness on gang

identity, membership, affiliation, and investigation. Wright testified that Folk Nation

is an umbrella street gang organization and that gangs under its control often had a

                                          3
“para-military style ranking structure” with subordinate gang members under ranking

officers. According to Wright, it is not uncommon for ranking gang members “to pass

guns to juveniles” who face reduced scrutiny and lesser sentences. Wright testified

it was his expert opinion that T. W. “is an associate of Lawrence Bell’s and the Folk

Nation” gang.

      Based upon the evidence, the juvenile court adjudicated T. W. delinquent for

both possessing a gun and participating in street gang activity as an affiliate of the

Folk Nation gang. T. W. appeals this ruling, arguing that the State presented

insufficient evidence that he was associated with the Folk Nation criminal street gang

or that he knowingly and intentionally participated in street gang activity.

      Georgia’s Street Gang Terrorism and Prevention Act, OCGA § 16-15-1 et seq.,

makes it “unlawful for any person employed by or associated with a criminal street

gang to conduct or participate in criminal gang activity through the commission of”

certain enumerated criminal offenses, including possession of a firearm. OCGA §

16-15-4 (a). See OCGA § 16-15-3 (1) (J). In order to prove a violation of this Act, the

State must show: (1) that T. W. was associated with a criminal gang; (2) that he

committed the act of possessing a firearm; and (3) that the firearm possession was



                                          4
intended to further the interests of the criminal gang activity. See Zamudio v. State,

332 Ga. App. 37, 39-40 (2) (771 SE2d 733) (2015).

      In the case at bar, there was insufficient evidence to demonstrate gang

affiliation. Pursuant to OCGA § 16-15-3 (2), “[c]riminal street gang” is defined as:

      any organization, association, or group of three or more persons
      associated in fact, whether formal or informal, which engages in
      criminal gang activity[.] The existence of such organization, association,
      or group of individuals 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,
      including, but not limited to, common activities, customs, or behaviors.
      Such term shall not include three or more persons, associated in fact,
      whether formal or informal, who are not engaged in criminal gang
      activity.


      The only evidence that T. W. was involved with a criminal street gang is that

he was in the presence of two people who had previously been adjudicated as gang

members and that he performed an act which might be expected of a junior gang

member. But the Supreme Court of Georgia has made clear that “the commission of

an enumerated offense by the defendant is not itself sufficient to prove the existence




                                          5
of a criminal street gang.”2 Rodriguez v. State, 284 Ga. 803, 808 (2) (671 SE2d 497)

(2009) (punctuation omitted). Thus, the State must present more evidence than the

fact that T. W. was in the mere presence of gang members and in possession of a gun

belonging to a gang member (Bell).

      In previous cases before this Court, the State proved that a juvenile was a gang

member or otherwise connected to a gang by showing that he was wearing clothing

or symbols associated with the gang or through the juvenile’s admission that he was

a gang member. See In the Interest of D. M., 307 Ga. App. 751, 752 (1) (706 SE2d

683) (2011) (evidence was sufficient where the juvenile admitted to gang

membership, the juvenile wore a black bandana that was associated with the gang,

and the State tendered expert testimony that wearing a black bandana was a

proclamation that the shooting at issue was a gang-related act); In the Interest of

C. P., 296 Ga. App. 572, 575 (675 SE2d 287) (2009) (evidence was sufficient where

the juvenile wore colors associated with the gang, carried paper depicting gang

symbols and codes, and admitted to gang membership); see also Morris v. State, 340


      2
         The Supreme Court noted that, if such evidence, standing alone, was
sufficient, “the nonsensical result would be that a member of any legitimate group
could violate the Act merely by committing an enumerated offense.” Rodriguez, 284
Ga. at 808 (2).

                                          6
Ga. App. 295, 299-300 (1) (797 SE2d 207) (2017) (evidence was sufficient to show

that the defendant was associated with a criminal street gang when the State presented

Facebook posts by the defendant in which he “displayed various distinguishing

characteristics . . . (e.g., hand signs/symbols, language, tattoos)” associated with a

specific criminal street gang); Taylor v. State, 331 Ga. App. 577, 578, 581-583 (2)

(771 SE2d 224) (2015) (evidence was sufficient where the State showed that the

defendant had “hung” out with gang members previously and that he armed himself

with a handgun before going with those gang members to an area occupied by a rival

gang in order to “invade” the rival gang’s territory). Here, the State presented no

evidence that T. W. was wearing any colors or attire that were uniquely associated

with the Folk Nation gang, that he had ever displayed signs or symbols affiliated with

Folk Nation gang membership, or that he had previously spent time with members of

Folk Nation.

      The fact that Simmons and Bell (two of the individuals who were present just

before T. W. was taken into custody) were members of criminal street gangs – albeit

different gangs – may provide circumstantial evidence of T. W.’s gang membership.

However, to warrant an adjudication of delinquency based solely upon circumstantial

evidence, “the proved facts shall not only be consistent with the hypothesis of guilt,

                                          7
but shall exclude every other reasonable hypothesis save that of the guilt of the

accused.” OCGA § 24-14-6. See In re E. A. D., 271 Ga. App. 531, 532 (610 SE2d

153) (2005). As we have held,

      [i]n a case entirely dependent on circumstantial evidence, . . . the State’s
      evidence must both be consistent with the hypothesis of guilt and must
      exclude every other reasonable hypothesis. Even when the
      circumstantial evidence creates a strong suspicion of guilt, mere
      suspicion is insufficient to support a conviction.


In re E. A. D., 271 Ga. App. at 532 (citation and punctuation omitted).

      Here, while T. W.’s conduct in socializing with gang members and accepting

a gun from a Folk Nation gang member might create a mere suspicion that he was

affiliated with the Folk Nation gang, such circumstantial evidence is legally

insufficient to meet the State’s burden of establishing that T. W. was a member of or

associated with the Folk Nation gang beyond a reasonable doubt. See Jones v. State,

292 Ga. 656, 659-660 (1) (b) (740 SE2d 590) (2013) (conviction was reversed where

the State failed to prove that the defendant was a member of or associated in any way

with a criminal street gang); In the Interest of A. G., 317 Ga. App. 165, 166-167 (730

SE2d 187) (2012) (convictions were reversed because the evidence was insufficient

to establish that the juvenile defendants were members of a criminal street gang;

                                           8
while the evidence showed that the juveniles possessed purple bandanas and a

notebook that appeared to refer to a gang, there was no evidence that any local gangs

used purple bandanas or used the name written in the notebook). Thus, we must

reverse the juvenile court’s adjudication of T. W. as delinquent to the extent such

adjudication was based upon a finding that T. W. participated in criminal street gang

activity.

       Judgment reversed. Miller, P. J., and Doyle, P. J., concur.




                                         9
