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
February 15, 2019
In the Court of Appeals of Georgia
A18A1682. IN THE INTEREST OF A. P., a child.
MCFADDEN, Presiding Judge.
A. P. was adjudicated delinquent for violating OCGA § 16-11-132, which
prohibits any person under the age of 18 from possessing or having under his control
a handgun. A. P. appeals the adjudication of delinquency. A. P. argues that the
juvenile court erred by denying his motion to suppress, but we find that the arresting
officer had reasonable suspicion to detain him and probable cause to arrest him. He
argues that the state failed to prove that he possessed a “handgun” as that term is
defined in the Georgia Code, but we find that the evidence was sufficient to permit
the juvenile court to find that A. P. possessed a handgun in DeKalb County. So we
affirm.
1. Motion to suppress.
“On appeal from a motion to suppress, the evidence is viewed in a light most
favorable to upholding the trial court’s judgment. The credibility of witnesses and the
weight accorded their testimony rest with the trier of fact. Thus, the trial court’s
findings on disputed facts and credibility must be accepted unless clearly erroneous.”
Groves v. State, 306 Ga. App. 779, 779 (703 SE2d 371) (2010) (citation omitted).
“[T]he reviewing court may also consider facts that definitively can be ascertained
exclusively by reference to evidence that is uncontradicted and presents no questions
of credibility, such as facts indisputably discernible from a videotape.” State v. Allen,
298 Ga. 1, 2 (1) (a) (779 SE2d 248) (2015) (citation omitted). “Where the evidence
is uncontroverted and there is no issue as to witness credibility, however, we review
de novo the trial court’s application of the law to the undisputed facts.” Groves v.
State, 306 Ga. App. at 779 (citation and punctuation omitted).
Viewed in this way, the evidence at the suppression hearing, which consisted
of the testimony of the arresting officer, footage from body cameras, and an audio
recording of a dispatch to police, shows the following. Officer T. G. Jones with the
DeKalb County Police Department was one of several police officers who responded
to a dispatch about a crime in progress at an apartment complex. The dispatcher, who
was communicating with the complainant all the while, informed the officers that the
complainant was reporting that a group of 14- to 15-year-old juveniles were in the
process of stealing a vehicle outside of Building 13 of the Arbor Crossing Apartments
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at 10 Arbor Crossing Drive. The dispatcher stated that she had been advised by the
complainant that the juveniles had stolen a blue Dodge Journey; that they then were
stealing a black Ford sedan with license plate “Delta Zulu Uniform 5301” and a silver
Taurus; and that they were getting into the silver Taurus.
The dispatcher stated that there were five males and one female. The dispatcher
continued to update the officers and stated that the complainant was now advising her
that the group consisted of about 10 juveniles; that police had arrived at the scene;
and that the juveniles had run off, although in what direction was not clear.
Officer Jones was the first officer at the scene. He was familiar with the
apartment complex and immediately went to building 13. Officer Jones stopped A.
P., who he believed to be 15 or 16 years old, and another male because they were
walking away from the area where the complainant said the cars were being stolen.
Officer Jones had another officer stand with the two boys while he walked around the
building looking for more juveniles and the cars. He returned, then walked A. P. and
the other boy to building 9, where officers were standing with other juveniles. Officer
Jones had A. P. put his hands on his head as they walked.
As they were walking toward building 9, Officer Jones saw a “hard, heavy”
object in A. P.’s front, right pocket. He asked A. P. to identify the object, and A. P.
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said it was a cell phone. Once they reached the other officers, Officer Jones patted
down A. P. for officer safety and felt the chamber of a revolver. Officer Jones arrested
A. P. and confiscated a small-caliber revolver.
The juvenile court orally denied A. P.’s motion to suppress, ruling that
“because of the reasonable suspicion [the officer] had the right to at that time stop the
child.”
A. P. argues that the juvenile court erred by denying his motion to suppress
because Officer Jones lacked reasonable suspicion to briefly seize him and lacked
probable cause to arrest him. We disagree.
The United States Supreme Court has established “three tiers of police-citizen
encounters: (1) communication between police and citizens involving no coercion or
detention and therefore without the compass of the Fourth Amendment, (2) brief
seizures that must be supported by reasonable suspicion, and (3) full-scale arrests that
must be supported by probable cause.” State v. Allen, 330 Ga. App. 752, 755 (769
SE2d 165) (2015) (citations and punctuation omitted). A. P. and the state agree that
Officer Jones’ encounter with A. P. was initially a second-tier encounter that required
reasonable suspicion.
To establish the required reasonable suspicion,
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the totality of the circumstances must show that the officer had specific
and articulable facts which, taken together with rational inferences from
those facts, provided a particularized and objective basis for suspecting
the particular person stopped of criminal activity. Although an
investigative stop cannot be based on an officer’s mere hunch that
criminal activity is afoot, this process allows officers to draw on their
own experience and specialized training to make inferences from and
deductions about the cumulative information available to them that
might well elude an untrained person.
Sims v. State, 335 Ga. App. 625, 628 (782 SE2d 687) (2016) (citations and
punctuation omitted). Moreover,
[a] dispatcher who reports a crime at a specified location gives police an
articulable suspicion to investigate and detain individuals at the scene,
particularly where police observations on arriving at the scene
corroborate the dispatcher’s report. Even if the dispatcher’s information
comes from a citizen or an unidentified informant, the investigatory
detention is valid, for patrolling officers are not required to question
dispatchers about the source of the information. . . . Corroboration only
solidifies the existence of an articulable suspicion.
Overand v. State, 240 Ga. App. 682, 683 (1) (523 SE2d 610) (1999) (citations
omitted).
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Applying these standards, we find that under the totality of the circumstances
Officer Jones had a reasonable suspicion that A. P. was engaged in or had been
engaged in criminal activity so as to support the brief seizure of him. Officer Jones
was dispatched to a crime in progress, arrived at the apartment complex where the
crime was occurring while still speaking with the dispatcher, immediately went to the
particular location where the complainant was reporting the crime to be occurring,
and there spotted A. P. and the other boy, whose ages matched the ages of the
juveniles described in the dispatch. The juveniles were in the precise location where,
according to the dispatch, the crimes were being or had just been committed. This
corroboration “solidified the existence of an articulable suspicion, and [Officer Jones]
was not required to wait until he actually observed (A. P.) committing a crime.” State
v. Harden, 267 Ga. App. 381, 383 (599 SE2d 329) (2004) (citation and punctuation
omitted).
Contrary to A. P.’s argument, Officer Jones did not elevate the second-tier
encounter to a third-tier encounter simply because he had the juveniles stand with
another officer while Officer Jones circled the building. There was no testimony
indicating that his doing so unreasonably extended the duration of the investigative
detention. See generally Rodriguez v. State, 295 Ga. 362, 369-370 (2) (b) (761 SE2d
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19) (2014). Nor did having A. P. put his hands on his head elevate the investigative
detention into a third-tier arrest. See Walker v. State, 314 Ga. App. 67, 70 (1) (722
SE2d 887) (2012) (encounter in which deputy held onto defendant’s arm in an
attempt to prevent him from leaving an apartment before showing his identification
was a second-tier detention); Witcher v. State, 258 Ga. App. 430, 431-432 (1) (574
SE2d 455) (2002).
And the evidence supports the trial court’s determination that the pat-down was
permissible, which led to the discovery of the revolver in A. P.’s pocket. This
discovery gave Officer Jones probable cause to arrest A. P. “In the context of a
second-tier encounter, an officer may conduct a pat-down search of a person whom
he reasonably believes to be armed or otherwise dangerous to the officer or others.”
Bradley v. State, 322 Ga. App. 541, 548 (3) (c) (745 SE2d 763) (2013) (citation
omitted). See also Davis v. State, 232 Ga. App. 450, 451 (1) (501 SE2d 241) (1998)
(officer who heard dispatch could stop defendant who was walking near hospital
where dead body was found, question him, and pat him down when crime had just
occurred, circumstances of crime were not known, and officer was trying to sort out
the facts). Officer Jones testified that seeing the hard, heavy object in A. P.’s pocket
prompted him to pat down A. P. to protect officer safety.
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3. Sufficiency of the evidence.
A. P. argues that the state failed to carry its burden of proving that he was in
possession of a handgun in violation of OCGA § 16-11-132. We disagree.
“When reviewing the sufficiency of evidence supporting a juvenile court’s
adjudication, we apply the same standard of review used in criminal cases. We view
the evidence in favor of the juvenile court’s adjudication to determine whether a
rational trier of fact could have found beyond a reasonable doubt that a juvenile
committed the acts charged.” In the Interest of A. A., 334 Ga. App. 37, 37-38 (778
SE2d 28) (2015) (citation omitted).
Immediately after denying the motion to suppress, the juvenile court conducted
a hearing on the delinquency petition.1 The state re-called Officer Jones, who testified
about arriving at the scene, walking with A. P., and noticing a hard object in A. P.’s
pocket. A. P. told Officer Jones that the object was a cell phone and repeated this
claim when they reached the other officers. Officer Jones patted down A. P. and
1
The evidence from the suppression hearing was not admitted at the trial on the
delinquency petition, so we cannot consider it in determining whether the evidence
sufficed to prove that A. P. possessed a handgun. See In the Interest of W. B., 342 Ga.
App. 277 n. 1 (801 SE2d 595) (2017).
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“could obviously tell it was a revolver.” A. P. was detained and what Officer Jones
described as “a small-caliber revolver” was found in his pocket.
Although the complaint against A. P. charged him with possession of a pistol
or revolver in violation of OCGA § 16-11-132, the statute in fact prohibits “any
person under the age of 18 years to possess or have under such person’s control a
handgun.” OCGA § 16-11-132 (b). OCGA § 16-11-125.1 (1) defines “handgun” to
mean
a firearm of any description, loaded or unloaded, from which any shot,
bullet, or other missile can be discharged by an action of an explosive
where the length of the barrel, not including any revolving, detachable,
or magazine breech, does not exceed 12 inches; provided, however, that
the term “handgun” shall not include a gun which discharges a single
shot of 0.46 centimeter or less in diameter.
Officer Jones’ testimony that the weapon was inside A. P.’s pocket and his
description of the weapon as a “small-caliber revolver” was sufficient evidence from
which the juvenile court could have found beyond a reasonable doubt that A. P.
committed the crime charged. Cf. In the Interest of A A., 334 Ga. App. at 39-40 (2)
(evidence was insufficient to adjudicate juvenile delinquent for being in possession
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of a handgun when sole witness identified weapon only as a “firearm,” “weapon,” and
“gun”).
4. Venue.
A. P. argues that the state failed to prove venue. We disagree.
We review
a challenge to the sufficiency of the venue evidence just like we review
a challenge to the evidence of [delinquency]: we view the evidence in
a light most favorable to support the [adjudication] and determine
whether the evidence was sufficient to permit a rational trier of fact to
find beyond a reasonable doubt that the [alleged delinquent acts
occurred] in the county where the [juvenile was charged].
Worthen v. State, __ Ga. __, __ (3) (a) (Case No. Sl8A1212, decided Jan. 22, 2019)
(citation and punctuation omitted). Venue in delinquency proceedings is also proper
in the county in which the juvenile resides. OCGA § 15-11-490 (a) (1). “Whether the
state met its burden as to venue is a matter resting soundly within the purview of the
[factfinder], and ambiguities in the trial evidence must be resolved by the [factfinder],
not appellate courts.” Garza v. State, 347 Ga. App. 335, 337 (1) (b) (819 SE2d 497)
(2018) (citations and punctuation omitted).
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Officer Jones testified that he responded to a stolen-vehicle dispatch; that he
arrived at the scene (the location where the vehicle or vehicles reportedly had been
stolen); and that he saw A. P. at that location. He also testified that the vehicle had
been stolen “out of DeKalb County.” From this testimony, the juvenile court could
have concluded that the delinquent act occurred in DeKalb County.
Judgment affirmed. Rickman and Markle, JJ., concur.
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