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In Interest of B. R.

Court of Appeals of Georgia, Second Division
Sep 12, 2007
A07A1577 (Ga. Ct. App. Sep. 12, 2007)

Opinion

A07A1577

DECIDED: SEPTEMBER 12, 2007


B. R. and M. T. were adjudicated delinquent after the juvenile court found that they had committed acts which, had they been adults, would have supported a conviction for burglary. Only B. R. appeals, contending that his adjudication cannot stand because the state failed to prove that he committed the offense and failed to prove venue beyond a reasonable doubt. For the reasons set forth below, we affirm.

Under OCGA § 16-7-1 (a), "[a] person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another."

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.

(Citation and footnote omitted.) In the Interest of T. T., 282 Ga. App. 527 ( 639 SE2d 538) (2006).

Furthermore, "[w]e do not resolve conflicts in the evidence or determine the credibility of the witnesses. Those issues are for the juvenile court to decide."

(Footnote omitted.) In the Interest of R. J. S., 277 Ga. App. 74 ( 625 SE2d 485) (2005).

Viewed in its proper light, the evidence shows that a mobile home owned by Joseph John Lindo, a Liberty County jailer, was burglarized on October 1, 2006. Lindo was at work, and his son, S. L., was home alone. Lindo testified that his son and B. R., who lived in the same mobile home park, were close friends, and that a few years earlier, B. R. had watched Lindo's dogs while Lindo was out of town. Lindo also testified, however, that B. R. did not otherwise have permission to enter his home without knocking on the door.

S. L. testified that he had known B. R. for "a very long time . . . since I was like eight." According to S. L., on the date of the incident, B. R. came to his window and told him that a man named Michael Proctor was going to break into S. L.'s home. S. L. had been having problems with Proctor, and on the previous day, Proctor had kicked in S. L.'s door and the two had fought over a mouthpiece. S. L. testified that after B. R. left, S. L.'s dog started barking, "and three dudes walked up," including Proctor. At the hearing, S. L. did not identify the other two intruders, and he denied that he told the police that he recognized B. R. and M. T. as the men who accompanied Proctor. S. L. testified that he hid in his father's closet during the burglary and called the police. S. L. could hear voices, and he admitted that he told the police that he thought he recognized B. R.'s voice. After the intruders left, S. L. discovered that his back door, which had been locked, was open, and that his video game player, DVD player, video games, and DVDs were missing.

Jeff Dawson, who is employed by the Liberty County Sheriff's Office, testified that he and three other officers responded to a call of a burglary in progress at the mobile home park on the night in question. As Dawson pulled into the park, he saw two males, later identified as Proctor and B. R., standing outside a window of a mobile home. Proctor started throwing down bags of items, and both he and B. R. ran. Dawson and Deputy Jonathan Tilley chased them, but the men split up and they caught only Proctor at that time. Dawson testified that B. R. wore red shorts and that he was carrying some items loose in his arms. Dawson positively identified B. R. as the youth he chased that night. Dawson also testified that he returned to the mobile home where Proctor and B. R. had been seen outside the window and retrieved stolen items from inside the home. Dawson learned that the home belonged to M. T. and his mother. Dawson testified that S. L. had described one of the intruders as wearing red shorts. Dawson's investigation revealed that the blinds in the window to M. T.'s home were distorted; that the cord was hanging outside the window; and that one of the bags of evidence had been dropped in front of the home. When he returned to Lindo's home, he saw pry marks on the door.

Tilley corroborated Dawson's account of the events. Tilley testified that when he and Dawson pulled into the park, a couple of subjects ran past their car and that the men were coming from the direction of the burglarized mobile home. Tilley verified that they caught Proctor but not the other subject. Tilley could not identify B. R., because he did not see his face, but Tilley did notice that the subject was wearing red shorts.

Gary Richardson, a corporal with the Liberty County Sheriff's Office, testified that, based on certain information provided at the scene, he retrieved the red shorts from Lot No. 5 of the mobile home park. Liberty County Sheriff's detective Tracy Jennings testified that Richardson turned the red shorts over to her when she arrived on the scene. Jennings also testified that the bag which Proctor dropped as he was running from the deputies contained, among other things, a video game player and a DVD player with Joseph Lindo's name written on the bottom. M. T.'s mother turned over a game player to Jennings at the scene. Jennings observed dirt tracks going up the wall of the trailer outside the window where the blind cord was hanging. M. T.'s mother allowed Jennings inside, and she observed fresh dirt on top of the clothing on the floor.

M. T.'s mother testified that her son was home that evening and that B. R. had come through the window around 11:00 p.m. to watch a movie with M. T. When a police officer came to her home and told her about the burglary, she asked M. T. to come out of his room and gave the officers permission to search it. About that time, M. T. gave his mother a video game and controller which he claimed had been thrown through his window.

M. T. testified that he and B. R. climbed out of his window around 11:10 p.m to go to a girl's house. However, they came back in through the window because they heard police sirens. Then, according to M. T., Proctor threw a video game controller through the same window.

Dawson testified that he and Tilley did not turn on their sirens or blue lights because with a burglary in progress, they "usually try to go in pretty quiet." Tilley testified that the burglary in progress call came in at 11:54 p. m.

1. B. R. contends that the evidence recounted above is insufficient to support his adjudication because the only evidence of his involvement in the burglary is the testimony that he ran from the deputies and there was no evidence that he ever had possession of or exercised control over the stolen property. We disagree. First, flight is always a circumstance which may be considered in determining the guilt or innocence of an accused. Second, the evidence in the case at bar showed more than flight; it was sufficient to uphold B. R.'s adjudication as a party to the crime. "[M]ere presence at the scene of a crime is insufficient to convict one of being a party to the crime, but presence, companionship, and conduct before and after the offense are circumstances from which one's participation in the criminal intent may be inferred." B. R. was observed fleeing from the direction of the burglarized mobile home in the company of Proctor, who was carrying bags of the stolen goods. Other stolen items were in M. T.'s possession, and M. T. testified that he and B. R. were together and had climbed in through the window around the time of the burglary. Because the stolen goods were in B. R.'s immediate presence, the juvenile court was authorized to find that the goods were in his constructive possession. And although "proof of recent, unexplained possession is not automatically sufficient to support a conviction for burglary, . . . it is sufficient to create an inference that the defendant is guilty of the burglary." Further, S. L., the victim, admitted that he told the police that while hiding in the closet during the burglary, he thought he recognized B. R.'s voice. In toto, the evidence is sufficient to support the juvenile court's finding beyond a reasonable doubt that B. R. committed the delinquent act of burglary.

Hogans v. State, 251 Ga. 242 (1) ( 304 SE2d 699) (1983); accord Woolfolk v. State, 282 Ga. 139, 141 (2), n. 2 ( 644 SE2d 828) (2007).

(Citation and punctuation omitted.) In the Interest of T. T., supra at 529.

Id., citing Wisdom v. State, 234 Ga. 650, 654 ( 217 SE2d 244) (1975).

(Citation and punctuation omitted.) In the Interest of M. M., 240 Ga. App. 571, 573 ( 524 SE2d 274) (1999).

2. B. R. next contends that the state failed to prove beyond a reasonable doubt that venue was laid in Liberty County.

Our Georgia Constitution requires that venue in all criminal cases must be laid in the county in which the crime was allegedly committed. Venue is a jurisdictional fact, and is an essential element in proving that one is guilty of the crime charged. Like every other material allegation in the indictment, venue must be proved by the prosecution beyond a reasonable doubt.

(Punctuation and footnotes omitted.) Jones v. State, 272 Ga. 900, 901 (2) ( 537 SE2d 80) (2000).

"[T]he State may establish venue by whatever means of proof are available, . . . including direct and circumstantial evidence."

Chapman v. State, 275 Ga. 314, 317 (4) ( 565 SE2d 442) (2002), citing Jones, supra at 902-903 (2).

In the case at bar, the state presented no direct evidence that the burglary was committed in Liberty County. The victims were asked to give only their street address, not their county of residence, and "a street name, standing alone, is never sufficient to establish venue." But all four of the law enforcement officers who testified at the hearing stated that they were employed by the Liberty County Sheriff's Office and were dispatched to the scene to investigate the burglary.

(Footnote omitted.) Jones, supra at 904 (3).

In light of the well-settled principle that public officials are believed to have performed their duties properly and not to have exceeded their authority unless clearly proven otherwise, the [juvenile court] was authorized to find the police officer[s] acted within the territorial jurisdiction in which [they] testified [they were] employed.

(Citations omitted.) Chapman, supra at 317-318 (4). Compare Thompson v. State, 257 Ga. App. 426 ( 571 SE2d 158) (2002), rev'd, 277 Ga. 102 ( 586 SE2d 231) (2003); King v. State, 271 Ga. App. 384, 387 (1) ( 609 SE2d 725) (2005) (suggesting that Thompson, which failed to address Chapman, implies that proof of officers' county of employment does not, standing alone, constitute proof of venue beyond a reasonable doubt).

Accordingly, the circumstantial evidence was sufficient to establish venue in Liberty County.

Judgment affirmed. Johnson, P. J., and Phipps, J., concur.


Summaries of

In Interest of B. R.

Court of Appeals of Georgia, Second Division
Sep 12, 2007
A07A1577 (Ga. Ct. App. Sep. 12, 2007)
Case details for

In Interest of B. R.

Case Details

Full title:IN THE INTEREST OF B. R., a child

Court:Court of Appeals of Georgia, Second Division

Date published: Sep 12, 2007

Citations

A07A1577 (Ga. Ct. App. Sep. 12, 2007)