In the Interest of S.B., a Child

• Court: Court of Appeals of Georgia
• Decided: January 8, 2019
• Docket: A18A1851
• Status: Published

Opinion

FIFTH DIVISION MCFADDEN, P. J., RICKMAN and MARKLE, JJ.

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 4, 2019

In the Court of Appeals of Georgia A18A1851. IN THE INTEREST OF S. B., a child.

MCFADDEN, Presiding Judge.

After his palm prints were found at the scenes of two burglaries, then-13-year-

old S. B. was adjudicated delinquent for acts that, if committed by an adult, would

constitute the offenses of burglary and attempted burglary. He appeals, challenging

the sufficiency of the evidence supporting the adjudications and arguing, based on

comments made by the juvenile court at the adjudicatory hearing, that the juvenile

court adjudicated him delinquent for acts not alleged in the delinquency petitions.

Because the evidence was sufficient and the juvenile court’s written orders indicated

that S. B. was adjudicated delinquent for the acts alleged in the petitions, we affirm.

1. Sufficiency of the evidence.

S. B. challenges the sufficiency of the evidence supporting his adjudications

of delinquency. In considering this challenge, “we construe the evidence and every

inference from the evidence in favor of the juvenile court’s adjudication[s] 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 J. D., 275 Ga. App.

147, 147-148 (619 SE2d 818) (2005) (citations omitted).

So construed, the evidence showed that in the early afternoon on November 30,

2017, a house on Ellis Street was burglarized. Two video gaming systems, numerous

video games, video game controllers, and other electronics were taken. It appeared

to the investigating officers that the burglar had entered through a kitchen window

at the rear of the house, and the officers found S. B.’s palm prints on the outside of

the bottom lower window pane of that window. The resident of the house testified

that she did not know S. B., did not give S. B. permission to be inside her house, and

did not know why his palm prints would have been on her kitchen window.

The following week, in the early afternoon on December 4, 2017, a house on

Cleburne Street was burglarized. The back door was kicked in, a bedroom was

ransacked, and numerous items were taken from the house, including video gaming

systems and video games. Screens had been cut out of three windows at the back of

the house, and it appeared to an investigating officer that someone had tried to open

those windows. Officers found S. B.’s palm prints on the outside of the windows. The

resident of the house knew S. B., who went to school with one of her children.

2 Although S. B. had spent time at the house in the past, in March 2017 the resident had

forbidden him from her house, and he did not have permission to be there on

December 4, 2017.

In connection with both of these incidents, the state filed delinquency petitions

alleging that S. B. had committed acts that, if committed by an adult, would constitute

the offense of burglary in the first degree. The juvenile court adjudicated S. B.

delinquent for acts constituting the offense of first-degree burglary in connection with

the Cleburne Street house and for acts constituting the offense of criminal attempt to

commit first-degree burglary in connection with the Ellis Street house.

Pertinently, “[a] person commits the offense of burglary in the first degree

when, without authority and with the intent to commit a felony or theft therein, he or

she enters . . . an occupied, unoccupied or vacant dwelling house of another[.]”

OCGA § 16-7-1 (b). “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. Moreover, “[a] person

charged with commission of a crime may be convicted of the offense of criminal

attempt as to that crime without being specifically charged with the criminal attempt

in the [charging document],” OCGA § 16-4-3, and “[a] person may be convicted of

3 the offense of criminal attempt if the crime attempted was actually committed in

pursuance of the attempt[.]” OCGA § 16-4-2.

S. B. argues that the evidence was insufficient to support his delinquency

adjudications because the palm-print evidence was the sole evidence of his

involvement in the burglaries but the state did not show that his palm prints were

impressed on the windows of the burgled houses at the time of the burglaries. He also

argues that there was a reasonable explanation for the presence of his palm prints on

the windows and he argues that the evidence supported other reasonable hypotheses

inconsistent with his having committed the acts alleged. We are not persuaded.

Fingerprint evidence is a form of circumstantial evidence. See Harris v. State,

298 Ga. 588, 593 (4) (783 SE2d 632) (2016). “To warrant a conviction on

circumstantial evidence, the proved facts shall not only be consistent with the

hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of

the guilt of the accused.” OCGA § 24-14-6. So “when fingerprint evidence is the only

evidence linking a defendant to the crimes on trial, the [s]tate must prove to the

exclusion of other reasonable hypotheses that the fingerprints could have been

impressed only at the time of the commission of the crimes.” Roberts v. State, 296 Ga.

719, 721 (1) (770 SE2d 589) (2015) (citations omitted). It is for the juvenile court,

4 as factfinder, to decide whether the totality of the evidence supported a reasonable

hypothesis other than the hypothesis that the fingerprints were impressed at the time

of the burglaries. See White v. State, 253 Ga. 106, 107 (1) (317 SE2d 196) (1984); In

the Interest of H. A., 311 Ga. App. 660, 662 (716 SE2d 768) (2011).

The state argues that the palm-print evidence was not the only evidence

supporting the adjudications of delinquency. But even if we view the palm-print

evidence to be the only evidence supporting the adjudications, it was sufficient. From

the circumstances surrounding the presence of S. B.’s palm prints at the scenes of the

burglaries, the juvenile court could conclude that “the only reasonable explanation

[was] that they were impressed during the commission of the crimes.” Roberts, 296

Ga. at 722 (1) (citation omitted).

As to the Ellis Street house, S. B.’s palm prints were found on the window

through which the burglar gained entry. Although S. B. “testified that he had left his

[ ]prints [on] the window during an earlier attempted burglary[, t]he [juvenile court]

was not required to believe that the [ ]prints had been left at the earlier time but was

authorized to find that [S. B.’s] explanation was evidence of his commission of the

instant burglary.” Moore v. State, 189 Ga. App. 810, 811 (377 SE2d 897) (1989). See

Moon v. State, 187 Ga. App. 558, 558-559 (370 SE2d 808) (1988) (affirming burglary

5 conviction where defendant’s fingerprints were on window through which entry was

gained to residence and there was no evidence presenting any other reasonable

explanation of how they came to be there than that they were impressed on window

at time of burglary).

As to the Cleburne Street house, S. B.’s palm prints were also found on exterior

windows. Although there was evidence that he previously had visited that house with

the resident’s permission, that had occurred more than six months before the

December 4 burglary. Since that time, the exterior of the house had been pressure-

washed. See In the Interest of J. D., 275 Ga. App. at 149 (1) (state met burden of

excluding every reasonable hypothesis except that defendant’s fingerprints were

impressed during burglary by, among other things, presenting evidence that victim

regularly washed kitchen window on which defendant’s prints were found).

Moreover, there was no evidence regarding or explanation for how S. B.’s prints

came to be on the outside of windows from which the screens had been cut, and the

juvenile court was authorized to conclude that — notwithstanding S. B.’s earlier

visits to the house — the only reasonable explanation for the presence of the prints

in that specific location was that they were impressed there during the commission

of the crime. See Roberts, 296 Ga. at 722-723 (1) (holding that circumstances

6 surrounding presence of defendant’s fingerprints at crime scene led “to the only

reasonable explanation that they were impressed during commission of the crimes,”

despite evidence that defendant had been at scene for innocent reasons on other

occasions) (citation omitted); In the Interest of J. D., supra at 149 (1) (evidence that

defendant had been in victim’s house once and may have been in living room “does

not provide an innocent explanation for the presence of his prints on the exterior and

interior of the rear kitchen window”).

S. B. argues that other evidence shows that he was not the perpetrator. He

points to evidence that he was either in school or at home with his mother when the

burglaries occurred — primarily his own testimony and that of his mother but also

evidence that his school did not mark him absent on those days. He also points to

evidence that other persons were seen in the vicinity of the houses when the

burglaries occurred. But as stated above, it was for the juvenile court as factfinder to

assess this evidence and determine whether the state had excluded every reasonable

theory other than S. B.’s guilt. White, 253 Ga. at 107; In the Interest of H. A., 311 Ga.

App. at 662. Because the evidence supported a conclusion that the only reasonable

hypothesis was that the palm prints were impressed at the time of the burglaries, the

evidence was sufficient to adjudicate S. B. delinquent for those acts.

7 2. Juvenile court’s comments at adjudicatory hearing.

In his reply brief, S. B. argues that the juvenile court erred by “adjudicat[ing

him] delinquent for acts wholly different and separate than that alleged in the

delinquency petitions.” The rule forbidding a “fatal variance” between the language

of the charging document and the proof at trial applies to juvenile delinquency

proceedings. See In the Interest of S. C. P., 320 Ga. App. 166, 167 (739 SE2d 474)

(2013). Pretermitting whether S. B. waived this contention by failing to specifically

enumerate it as error in his initial appellate brief, but see Lebis v. State, 302 Ga. 750,

759-760 (II) (A) (808 SE2d 724) (2017) (considering on appeal whether there was

fatal variance, even though appellant couched claim of error as challenge to

sufficiency of evidence), we find no merit in the argument.

S. B. argues the juvenile court made comments at the adjudicatory hearing

indicating that she based her adjudications, at least in part, on S. B.’s admitted

presence at both houses at times other than the dates when the burglaries occurred,

as alleged in the delinquency petitions. But

[t]he juvenile court’s statement[s] in court [are] of no legal significance. A trial court’s oral pronouncement is not a judgment until it is put in writing and entered as the judgment. Although a trial court’s oral pronouncements on the record may provide insight of [her] subsequent

8 written judgment, discrepancies between the [oral and written] pronouncements must be resolved in favor of the written judgment.

In the Interest of L. H., 242 Ga. App. 659, 660 (2) (530 SE2d 753) (2000) (citations

omitted). In her written orders adjudicating S. B. delinquent, the juvenile court stated

that she “found that the allegations of the petition [were] true . . . , that the acts

attributed to [S. B.] were, in fact, committed by [him], and that such acts constitute[d]

acts of delinquency.” To the extent that her comments during the hearing reflect a

different factual basis for her adjudications, we look to the written judgments, which

reflect that the juvenile court based her adjudications on the facts alleged in the

delinquency petitions.

Judgment affirmed. Rickman and Markle, JJ., concur.