In the Interest of C. S. G., a child

Court of Appeals of Georgia1999-11-09No. A99A1784

241 Ga. App. 37525 S.E.2d 106

Summary · law.co

Holding. The judgment of the juvenile court adjudicating the minor delinquent for acts constituting battery and terroristic threat was affirmed, as the evidence was sufficient to establish both offenses beyond a reasonable doubt and terroristic threat was properly treated as a lesser included offense of the charged aggravated assault.

A juvenile court found a minor delinquent for committing acts that would constitute battery and terroristic threat if performed by an adult. During an assault on a victim walking to school, the minor and an accomplice physically attacked the victim, and the minor concluded the assault by displaying a handgun while warning the victim to "watch your back." The victim's account of these events was corroborated by an eyewitness who observed the physical assault and heard threatening statements, though the eyewitness did not see the gun display.

On appeal, the minor challenged the sufficiency of evidence supporting both charges. The appellate court rejected this challenge, finding that displaying a handgun under threatening circumstances constitutes a terroristic threat under the applicable statute, and that the victim's testimony combined with the eyewitness corroboration provided sufficient evidence to support both the battery and terroristic threat findings beyond a reasonable doubt. The court also addressed a procedural objection regarding whether terroristic threat could be treated as a lesser included offense of the charged aggravated assault, concluding that the charge adequately apprised the minor of this possibility.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Sufficiency of evidence for battery and terroristic threat charges
Whether displaying a handgun under threatening circumstances constitutes terroristic threat
Whether terroristic threat qualifies as a lesser included offense of aggravated assault
Adequacy of notice when delinquency petition charges aggravated assault but evidence supports lesser included offense

Procedural posture

The minor appealed from a juvenile court order adjudicating him delinquent based on acts constituting battery and terroristic threat if committed by an adult.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

McMurray, Presiding Judge.

C. S. G. appeals from a juvenile court order adjudicating him delinquent based on his commission of acts constituting the offenses of a battery and a terroristic threat if committed by an adult. The evidence which authorizes this adjudication reveals C. S. G. and an accomplice attacked and physically assaulted the victim as the victim was walking to school, and that C. S. G. finished the assault by displaying a handgun (which was tucked in his pants and concealed under his shirt) to the victim and then warning the victim — “ ‘watch [your] back.’ ” Held:

1. C. S. G. contends the evidence is insufficient to authorize the juvenile court’s findings that he is a delinquent child based on his commission of acts constituting the offenses of a battery and a terror-istic threat if committed by an adult. We do not agree.

Contrary to C. S. G.’s assertion, displaying a handgun to another under threatening circumstances may constitute an act constituting a terroristic threat if committed by an adult. Heaton v. State, 214 Ga. App. 460 (448 SE2d 49). A person commits the offense of a terroristic threat when he threatens to commit any crime of violence with the purpose of terrorizing another person. OCGA § 16-11-37 (a). In the case sub judice, the victim testified that C. S. G. and an accomplice attacked and physically assaulted him as he was walking to school, and that C. S. G. finished the assault by displaying a handgun and then warning him — “ Vatch [your] back.’ ” The victim also testified that his “jaw was swollen” after the attack. This testimony was corroborated by an eyewitness who did not see C. S. G. display a handgun, but who saw C. S. G. strike the victim and heard C. S. G. threaten the victim during the assault. This evidence is sufficient to authorize the juvenile court’s finding, beyond a reasonable doubt, that C. S. G. is a delinquent child based on his commission of acts constituting the offenses of a battery in violation of OCGA § 16-5-23.1 (a) and a terroristic threat in violation of OCGA § 16-11-37 (a) if committed by an adult. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); In the Interest of J. M., 237 Ga. App. 298 (1) (513 SE2d 742). Slight corroboration of the circumstances during which a terroristic threat is uttered is all that is necessary to satisfy OCGA § 16-11-37 (a)’s requirement that the victim’s account of the terroristic threat be corroborated. See Sampson v. State, 209 Ga. App. 213, 215 (1) (433 SE2d 136). This is so because, if there is any evidence of corroboration, this Court will not second-guess the factfinder and pass on the corroborating evidence’s probative value. In the Interest of J. L. W, 213 Ga. App. 630 (1) (445 SE2d 575).

2. Although C. S. G. was charged in one count of the delinquency petition with acts constituting the offense of aggravated assault if committed by an adult, the juvenile court adjudicated C. S. G. delinquent under this count based on his commission of acts constituting the lesser included offense of a terroristic threat if committed by an adult. C. S. G. contends this adjudication cannot stand because the evidence does not show that a terroristic threat is a lesser included offense of the charged aggravated assault. He reasons that he was deprived of the requisite notice of the terroristic threat charge by this variance between the allegata and probata. We do not agree.

Decided November 9, 1999

Reconsideration denied November 22, 1999

Ann N. Garner, James C. Bonner, Jr., for appellant.

Paul L. Howard, Jr., District Attorney, Cassandra Kirk, Elizabeth A. Baker, Assistant District Attorneys, for appellee.

The offense of terroristic threat may be a lesser included offense of aggravated assault, as a matter of fact, if the facts which are the basis of the aggravated assault charge and the evidence proffered to establish this crime are also sufficient to establish the commission of a terroristic threat. Messick v. State, 209 Ga. App. 459, 460 (1) (433 SE2d 595). In the case sub judice, the delinquency petition alleged that C. S. G. committed an act constituting the offense of aggravated assault if committed by an adult “by displaying [a] pistol in a threatening manner to the victim. . . .” From the evidence presented at the delinquency hearing to support this allegation, the juvenile court would have been authorized to find that C. S. G. used a handgun to commit an act constituting the offense of aggravated assault, if committed by an adult (i.e., place the victim in reasonable apprehension of immediately receiving a violent injury), or that C. S. G. used a handgun to commit an act constituting the offense of a terroristic threat if committed by an adult (i.e., threaten to commit a crime of violence with the purpose of terrorizing the victim). Thus, the offense of terroristic threat was included, as a matter of fact, in the charged delinquent act constituting the offense of aggravated assault if committed by an adult. C. S. G. was therefore properly apprised before the delinquency hearing that he could be found delinquent based on his commission of an act constituting the lesser included offense of terroristic threat if committed by an adult. See id.

Judgment affirmed.

Johnson, C. J., and Phipps, J., concur.

This witness inconsistently testified on cross-examination that he did not see his friend, C. S. G., strike the victim. This inconsistency was properly resolved by the juvenile court. See Berry v. State, 268 Ga. 437, 438 (1) (490 SE2d 389). On appeal, we must construe this conflict so as to uphold the juvenile court’s findings of fact and conclusions of law. In the Interest of R. L. W., 225 Ga. App. 253, 254 (2) (483 SE2d 361).