In the Interest Of: T. D. J., Jr., a Child

• Court: Court of Appeals of Georgia
• Decided: February 21, 2014
• Docket: A13A2022
• Status: Published

Opinion

FIRST DIVISION PHIPPS, C. J., ELLINGTON, P. J., and BRANCH, 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/

February 21, 2014

In the Court of Appeals of Georgia A13A2022. IN THE INTEREST OF T. D. J., JR., a child.

B RANCH, Judge.

On September 14, 2012, one or more individuals fired gunshots at a crowd of

people dispersing from a local football game in Macon; the crowd included at least six

police officers. T. D. J., Jr., age 14 at the time, was arrested and eventually charged

with being delinquent or unruly based on six counts of aggravated assault on a peace

officer and one count of possession of a handgun by an underage person; he was also

charged with a violation of probation. Following a bench trial held in juvenile court

on November 29, 2012, T. D. J. was found guilty on six counts of the lesser included

offense of aggravated assault and guilty as charged on the remaining counts. As a

consequence, T. D. J. was adjudicated to be a designated felon under OCGA § 15-11- 63 1, committed to the Department of Juvenile Justice for 60 months, and required to

serve 48 of those months in restrictive custody, with credit for 75 days of time served.

In reaching the decision on sentencing, the juvenile court considered the child’s needs

and best interests, his record and background, the nature and circumstances of the

offense, the need for protection of the community, and the age and physical condition

of the victim. Following the denial of his motion for new trial, T. D. J. appeals. We

affirm.

1. T. D. J. contends the evidence was insufficient to support the adjudication of

delinquency. On appeal of a juvenile court’s adjudication of delinquency, this court

determines whether after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt. In the Interest of R. J. S., 277 Ga. App. 74 (625

SE2d 485) (2005); Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61

LE2d 560) (1979).

1 As of the time of trial, the term “designated felony act” was defined to mean, among other things, an act which if done by an adult, would be one or more of certain specified crimes including aggravated assault if done by a child 13 or more years of age. OCGA § 15-11-63 (a) (2) (B) (ii) (2012). This section has been repealed effective January 1, 2014 and replaced, in part, by new §§ 15-11-2 (12) and (13), which contain newly worded definitions. See Ga Laws 2013, Act 127, § 1-1.

2 At trial, Sergeant Brad Surfus testified that he saw a small-in-stature, lone black

male, wearing black clothes, fire approximately six rounds toward a crowd of

approximately 100 or more people from a position on the left rear corner of a certain

building located near the stadium where the game had been held. Surfus radioed

Officer Cason Grant with the information and saw the perpetrator run around the back

side of the building and back into view on the right side of the same building. Surfus

and other officers continued to pursue the individual, and Surfus saw the individual

throw a pistol to the ground near a parked SUV. Surfus retrieved the weapon and it

was introduced into evidence. Surfus testified that there were street lights illuminating

the area where the events occurred, and at trial, he identified T. D. J. as the person he

saw shooting the gun and later discarding it. He also testified that he only lost sight

of T. D. J. during the brief time that T. D. J. ran behind the building, but that he

recognized T. D. J. when he came from behind the building based on the youth’s small

stature and clothing. Surfus testified that he had a reasonable apprehension that he

might have been shot. He also testified that several other officers were endangered by

the shooting, including Aaron Miller, Timothy Moore, Jesse Thompson, and Timothy

River.

3 Officer Grant testified that as he and other members of the Macon Police

Department Strike Unit were responding to calls for assistance from off-duty officers

as the football game let out, he heard gun fire coming from behind some apartments

located about 150 yards from his position. As the shooting continued, he saw muzzle

flashes and the silhouettes of people near the same building identified by Surfus.

Some of the shots were fired in Grant’s direction, which placed Grant in reasonable

apprehension of being shot. As Grant moved toward the building, he saw that five or

six individuals were present, and that one or more of the individuals were shooting.

Grant saw the individuals run around the building, and, at the right side of the same

building, he encountered the same individuals as they ran out from behind the

building. Grant specifically saw T. D. J. running and saw him throw down a handgun

near an SUV parked nearby. Grant estimated that T. D. J. was between five feet and

five feet two inches tall. Grant pursued briefly, but other officers apprehended T. D.

J. nearby. One other individual was apprehended that evening, as well. At trial, Grant

identified T. D. J. as the person who he saw run and discard the gun. T. D. J. testified

and the court was able to observe his height.

Construed in favor of the prosecution, the above evidence was sufficient to

support a finding of guilt on six counts of aggravated assault and one count of

4 possession of a handgun by an underage person. See OCGA §§ 16-5-21 (a) (2)

(aggravated assault with a deadly weapon); 16-11-132 (b) (possession of a handgun

by a minor). 2 See also In the Interest of T. Y. B., 288 Ga. App. 610, 612 (654 SE2d

688) (2007). Moreover, because the evidence included direct evidence in the form of

eyewitness testimony identifying T. D. J. as shooting and discarding the gun, the

appellant’s argument that the State’s evidence was circumstantial and failed to exclude

all other reasonable hypotheses save T. D. J.’s guilt is without merit. Daniel v. State,

285 Ga. 406, 407 (2) (677 SE2d 120) (2009). See also Simmons v. State, 262 Ga. App.

164, 166 (1) (a) (585 SE2d 93) (2003) (positive identifications of defendant by

witnesses is direct rather than circumstantial evidence of guilt).

Finally, the State presented sufficient evidence of identification to sustain the

conviction. Surfus testified that he could see the shooter initially because of nearby

streetlights and that he saw the same person run from behind the other side of the

building and discard the gun. And Surfus was able to identify that person as the

appellant. See In the Interest of T. O. J., 295 Ga. App. 343, 345 (1) (672 SE2d 14)

2 T. D. J. does not separately contest the finding that by committing aggravated assault, he violated his probation arising from a prior incident.

5 (2008) (eyewitness testimony of three victims identifying appellant as shooter “was

more than sufficient to sustain the convictions”).3

2. T. D. J. contends that his sentence of four years in custody was improper for

two reasons. He first argues that when considering his sentence, the juvenile court

failed to take into account certain factors required by the United States Supreme Court

in Miller v. Alabama, __ U. S. __ (132 SCt 2455, 183 LE2d 407) (2012). He also

contends that the sentence constitutes cruel and unusual punishment in violation of the

Georgia Constitution and of the Eight and Fourteenth Amendments of the United

States Constitution because the sentence was grossly disproportionate to his crime and

does not bear a reasonable relationship to the legitimate legislative concerns of

deterring crime or rehabilitation.

(a) Miller, however, is distinguishable and not applicable to the case before us.

In Miller, the United States Supreme Court determined that the Eighth Amendment’s

prohibition of cruel and unusual punishment “forbids a sentencing scheme that

3 The case of Towns v. State, 136 Ga. App. 467 (221 SE2d 631) (1975), upon which the appellant relies, is distinguishable; it addresses the validity of pre- indictment witness-defendant confrontations rather than eyewitness identification at trial, such as here.

6 mandates life in prison without possibility of parole for juvenile offenders.” Id. (II)

(132 SCt at 2469). As a part of its reasoning, the Supreme Court noted

that children are constitutionally different from adults for purposes of sentencing. Because juveniles have diminished culpability and greater prospects for reform . . . they are less deserving of the most severe punishments.

(Citations and punctuation omitted.) Id. at 2464. The “most severe punishments”

addressed by the Supreme Court were mandatory life sentences without parole for

juveniles being charged as adults. Id. at 2465. Thus, the court reasoned,

By removing youth from the balance – by subjecting a juvenile to the same life-without-parole sentence applicable to an adult – these [sentencing] laws prohibit a sentencing authority from assessing whether the law’s harshest term of imprisonment proportionately punishes a juvenile offender.

Id. at 2466. In addition, the court likened a mandatory life sentence without parole to

the death penalty, and it therefore applied precedent demanding individualized

sentencing when imposing such a sentence. Id. 2467.

The present case is obviously quite different. Here, the appellant was not

subject to one of the “most severe punishments” allowed by law. Rather, he was tried

as a child in the juvenile justice system where the goal is rehabilitation and treatment

7 and where an adjudication of delinquency is not considered a conviction of a crime.

See In re L. C., 273 Ga. 886, 887 (1) (548 SE2d 335) (2001). Moreover, he was

sentenced under OCGA § 15-11-63, the central purpose of which is “the rehabilitation

and treatment of the child and not punishment.” In re L. C., 273 Ga. at 888 (1). And

the statute specifically requires the juvenile court to take into account the “needs and

best interests of the child,” which the juvenile court did. OCGA § 15-11-63 (c) (1). In

short, Miller v. Alabama is not applicable to the case before us. See People v.

Pacheco,991 NE2d 896, 906 (Ill. App (4th) 2013) (Miller v. Alabama “was only

concerned with the death penalty and life without the possibility of parole, which are

the two most severe punishments allowed under the United States Constitution.”).

(b) T. D. J.’s argument that his sentence amounts to cruel and unusual

punishment under the Georgia 4 and United States Constitutions has been waived

because it was not raised and ruled on below at the sentencing hearing. Brinkley v.

State, 291 Ga. 195, 196 (1) (728 SE2d 598) (2012) (failure at sentencing hearing to

raise a “complaint that a sentence imposes upon a defendant a cruel and inhuman

punishment, in violation of the (state and federal) constitutional provision” waives

issue on appeal even when, as noted by the dissent, the “[a]ppellant is not challenging

4 Ga. Const. of 1983, Art. I, Sec. 1, Par. XVII.

8 the general constitutionality of the statute under which he was prosecuted, but the

sentence as applied to him based on his status as a juvenile offender”). See, e.g.,

Brinkley v. State, 320 Ga. App. 275, 282 (6) (739 SE2d 703) (2013) (juvenile’s

argument that life sentence violated the constitutional prohibition against cruel and

unusual punishment because defendant was only 14 years old at the time of the

offenses “was waived for appellate review because it was not timely raised in the trial

court”).

Judgment affirmed. Phipps, C. J., and Ellington, P. J., concur.