In the Interest Of: S.W. , a Child

• Court: Court of Appeals of Georgia
• Decided: May 16, 2016
• Docket: A16A0314
• Status: Published

Opinion

FIFTH DIVISION PHIPPS, P. J., DILLARD and PETERSON, 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

May 16, 2016

In the Court of Appeals of Georgia A16A0314. IN THE INTEREST OF S. W., a child.

PHIPPS, Presiding Judge.

A juvenile court adjudicated S. W. delinquent for acts which, if committed by

an adult, would have constituted aggravated assault with a deadly weapon, a pistol.1

S. W. appeals, contending that the evidence was insufficient to support his

adjudication of delinquency. For the reasons set forth below, we affirm.

“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

1 OCGA § 16-5-21 (b) (2). finder of fact could have found, beyond a reasonable doubt, that the juvenile

committed the acts charged.”2

So viewed, the evidence showed that the two victims walked to a convenience

store after leaving Crim Open Campus High School around 6:00 p.m. one evening in

November 2012. Two other boys, one of whom the victims recognized as someone

they knew as “Little Robert,” confronted the victims regarding a prior altercation. The

victims started to walk away, but the boys (now part of a group which included four

more boys) began following them. One of these four was S. W., then 16 years old,

whom the victims recognized from having gone to high school with him.

Seeing that they were now outnumbered and that Little Robert had pulled out

a gun, the victims started running. As they passed a Checkers restaurant, the victims

heard the sound of a gun being cocked and turned around to see S. W. leading the

group and holding a gun. The victims ran into traffic and onto the expressway in

order to escape the group of boys chasing them.

2 In the Interest of D. M., 308 Ga. App. 589-590 (708 SE2d 550) (2011) (citation omitted).

2 1. S. W. asserts that the State failed to prove venue because the two victims,

X. C. and Z. W., provided confusing lay testimony on whether the Checkers

restaurant was in DeKalb County.

A delinquency proceeding may be commenced either where the juvenile resides

or where the alleged delinquent acts occurred.3 “The standard of review on appeal to

determine whether venue was sufficiently proved is the same as any other sufficiency

review — whether, in the light most favorable to the prosecution, any rational trier

of fact could have found venue beyond a reasonable doubt.”4

In response to a question regarding where the convenience store was located,

X. C. testified, “I guess DeKalb.” He later stated that the Checkers restaurant was on

“Memorial” and responded affirmatively to whether “that” was in DeKalb County as

well. However, during cross-examination, X. C. clarified that the incident occurred

in DeKalb County.

The prosecution did not elicit any testimony regarding venue from Z. W. on

direct examination. However, on redirect, the following exchange took place:

3 OCGA § 15-11-490 (a). 4 In the Interest of D. D., 287 Ga. App. 512, 513 (2) (651 SE2d 817) (2007) (citation omitted).

3 Q: When all this happened at that Checkers, what county was this all in? Was this in DeKalb County? A: It was in DeKalb County, but I don’t really know, because I know on one side, it cross over to Atlanta. I think it was DeKalb, though. It had to be DeKalb ‘cause it was right there at the Checkers at Crim.

This testimony constituted sufficient evidence for the trial court to find beyond

a reasonable doubt that venue was properly laid.5 Although both witnesses initially

expressed some uncertainty and Z. W. noted that the county line was nearby, they

ultimately concluded that the incident occurred in DeKalb.6 Moreover, “[i]t is not for

us 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.”7 We find no reversible error.

5 See Martin v. McLaughlin, 298 Ga. 44, 46, n. 3 (779 SE2d 294) (2015) (discussing standard of review and disapproving decisions employing an “any evidence” or “slight evidence” standard). 6 Harris v. State, 257 Ga. App. 42, 44 (1) (570 SEd 353) (2002) (finding that State proved venue beyond a reasonable doubt where the witness testified that he did not think any of the events occurred outside of the county). 7 In the Interest of J. L. H., 289 Ga. App. 30, 31 (656 SE2d 160) (2007) (punctuation and citation omitted).

4 2. S. W. argues that the evidence was insufficient to support an adjudication

of delinquency for acts which, if committed by an adult, would have constituted

aggravated assault. He contends that there was no testimony that he threatened or

even spoke to the victims and no evidence that he pointed the gun at the victims or

cocked the gun.

The elements of aggravated assault relevant to this case are (1) assault (2) with

a deadly weapon.8 S. W. raises no issue with respect to the second element. As to the

first element, “simple assault” is defined as either attempting to commit a violent

injury to the person of another or committing an act which places another in

reasonable apprehension of immediately receiving a violent injury.9

Here, the victims both testified that they heard the sound of a gun being cocked

and turned around to see S. W. holding a gun while chasing them with a group of

other young men. The victims were so afraid that they ran into traffic and onto the

expressway to get away. Although the victims testified that S.W. was pointing the

gun down and not at them, S. W.’s conduct was sufficient to place them in reasonable

8 OCGA § 16-5-21 (b) (2). 9 OCGA § 16-5-20 (a).

5 apprehension of immediately receiving a violent injury.10 This evidence was sufficient

to support the adjudication of delinquency.11

Judgment affirmed. Dillard and Peterson, JJ., concur.

10 See Veasey v. State, 322 Ga. App. 591, 595 (1) (c) (745 SE2d 802) (2013) (“A pistol is a deadly weapon. Indeed, the presence of a gun would normally place a victim in reasonable apprehension of being injured violently.”). 11 OCGA § 16-5-21 (b) (2).