O.C.G.A. § 16-15-4 (2019)

Annotations

Cross references. Admission of criminal gang activity evidence, § 24-4-418. Editor’s notes. Ga. L. 2006, p. 519, § 7/HB 1302, not codified by the General Assembly, provided that the 2006 amendment shall be effective July 1, 2006, and shall be applicable to all crimes committed on or after such date, and also provided that: “Any offense committed before July 1, 2006, shall be punishable as provided by the statute in effect at the time the offense was committed.” Ga. L. 2023, p. 64, § 5/SB 44, not codified by the General Assembly, provides that the 2023 amendment applies to all offenses committed on or after July 1, 2023. Law reviews. For annual survey of criminal law, see 56 Mercer L. Rev. 153 (2004). For annual survey on criminal law, see 68 Mercer L. Rev. 93 (2016). For article, “HB 1134: Amendments to the Georgia Street Gang Terrorism and Prevention Act,” see 39 Georgia St. U.L. Rev. 21 (2022).

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION INDICTMENT APPLICATION SENTENCE General Consideration Constitutionality. - Trial court properly denied the appellants’ motion to dismiss various counts charging the appellants with gang-related crimes under the Georgia Street Gang Terrorism and Prevention Act, O.C.G.A. § 16-15-1 et seq., since properly construed O.C.G.A. § 16-15-4(a) did not directly or indirectly infringe upon the First Amendment right to freedom of association as, to support a conviction, gang conduct or participation was required. Further, reading § 16-15-4(a) according to the natural and obvious import of the statute’s language and in conjunction with the specific definitions in O.C.G.A. § 16-15-3, the

statute provided a sufficiently definite warning to persons of ordinary intelligence of the prohibited conduct and was not susceptible to arbitrary and discriminatory enforcement and did not reach a substantial amount of constitutionally protected conduct, thus, the statute was not unconstitutionally vague or overbroad. Rodriguez v. State, 284 Ga. 803, 671 S.E.2d 497, 2009 Ga. LEXIS 14 (2009). Construction with O.C.G.A. § 42-9-39. - There is no legal authority to support the proposition that the Georgia Street Gang and Terrorism Prevention Act, O.C.G.A. § 16-15-1 et seq., and O.C.G.A. § 42-9-39, two very

General Consideration (Cont’d) differently worded statutory provisions, are equivalent; thus, defendant’s argument that, as a matter of law, if the armed robbery of September 17, 1999, and the murder of December 28, 1999, are considered as part of the “pattern of criminal street gang activity” for purposes of violating the Street Gang Act, they must necessarily also be considered “offenses occurring in the same series of acts” within the meaning of O.C.G.A. § 42-9-39(c) failed. Seabolt v. State, 279 Ga. 518, 616 S.E.2d 448, 2005 Ga. LEXIS 450 (2005). Statute is not unconstitutionally vague. - Appellant, a juvenile, was not entitled to the dismissal of two counts of street gang activity based on the juvenile’s assertion that O.C.G.A. § 16-15-4(a) failed to inform ordinary citizens of what associations with a criminal street gang were prohibited under the statute; the statute required that a defendant’s association with a group be active and include the commission of an enumerated offense under former O.C.G.A. § 16-15-13(1), and that provided a sufficiently definite warning to persons of ordinary intelligence of the prohibited conduct. In re K.R.S., 284 Ga. 853, 672 S.E.2d 622, 2009 Ga. LEXIS 26 (2009). O.C.G.A. § 16-5-9, allowing absent gang members convictions to serve as proof of gang, violated confrontation right. - O.C.G.A. § 16-15-9 was declared unconstitutional on the statute’s face under the Sixth Amendment’s confrontation clause to the extent that the statute authorized the admission of the convictions of non-testifying non-parties as evidence of a criminal street gang; the exclusion of other alleged gang members’ convictions in the defendant’s trial was upheld. State v. Jefferson, 302 Ga. 435, 807 S.E.2d 387, 2017 Ga. LEXIS 931 (2017). No nexus between other act and intent to further gang activity required. - Plain language of O.C.G.A. § 24-4-418 was held not to require proof of a nexus between the other act and an intent to further gang activity as § 24-4-418 references the definition of “criminal gang

activity” in the Georgia Street Gang Terrorism and Prevention Act, O.C.G.A. § 16-15-3, which does not contain such a nexus requirement. McKinney v. State, 318 Ga. 566, 899 S.E.2d 121, 2024 Ga. LEXIS 66 (2024). Bifurcation of trial was not necessary. - Bifurcation was not necessary since evidence of the defendant’s gang affiliation would have been admissible in a separate trial for murder and for the charged offenses other than violations of the Street Gang Terrorism and Prevention Act, O.C.G.A. § 16-15-1 et seq., as there was no requirement that the state charge a defendant with violating the prohibition of participation in criminal street gang activity in order to admit otherwise relevant evidence of gang activity. Bullard v. State, 307 Ga. 482, 837 S.E.2d 348, 2019 Ga. LEXIS 843 (2019). Jury instructions. - Trial court’s charge regarding the Street Gang Terrorism and Prevention Act, O.C.G.A. § 16-15-1 et seq., counts fairly covered the essential elements of the offense because the trial court instructed the jury that a person violated the Act if the defendant was proven to be a gang member and participated in criminal gang activity through a predicate act and the charge did not omit essential elements of the offense. Jackson v. State, 306 Ga. 706, 832 S.E.2d 809, 2019 Ga. LEXIS 599 (2019). Indictment Indictment sufficient. - It was not necessary for an indictment for violations of O.C.G.A. § 16-15-4(a) of the Georgia Street Gang Terrorism and Prevention Act, O.C.G.A. § 16-15-1 et seq., to contain a specific allegation that the gang existed prior to the commission of any of the enumerated offenses; the indictment tracked the language of the statute and gave a date certain for each of the enumerated offenses. State v. Hood, 307 Ga. App. 439, 706 S.E.2d 566, 2010 Ga. App. LEXIS 1145 (2010). Indictment specifically alleging the date of the offense, the county where the offense occurred, the gang with which the defendant was associated, that gang’s status as a criminal street gang, the predi-

cate act of criminal street gang activity, the identity of the victim of that act, and the manner in which that act was done provided enough information that the indictment was not susceptible to a special demurrer. Bullard v. State, 307 Ga. 482, 837 S.E.2d 348, 2019 Ga. LEXIS 843 (2019). Indictment insufficient when state unable to identify dates. - Trial court did not err in granting the defendants’ special demurrer to an indictment charging the defendants with participating in criminal street gang activity in violation of the Georgia Street Gang Terrorism and Prevention Act, O.C.G.A. § 16-15-1 et seq., specifically O.C.G.A. § 16-15-4, because absent some showing by the state that the state’s evidence did not permit the state to identify the exact dates the gang came into existence, the indictment was imperfect and subject to special demurrer; although in most cases of this type it may not be possible for the state to show an exact date a criminal street gang came into existence, it is nevertheless incumbent upon the state to make some showing as to why the state can not determine that date, and ultimately, while the state may in fact be unable to pinpoint the particular dates of the alleged crimes, an appellate court cannot speculate about such a matter, but instead, the appellate court, like the trial court, is bound by the record before the court. State v. Hood, 307 Ga. App. 439, 706 S.E.2d 566, 2010 Ga. App. LEXIS 1145 (2010). Indictment not required to allege date the gang came into existence. - Indictment for criminal street gang activity under O.C.G.A. § 16-15-4(a) was sufficient to withstand 12 defendants’ general and special demurrers. Although the indictment did not allege a date that the gang came into existence, the indictment sufficiently alleged that the gang existed at the time of each of the enumerated predicate offenses. State v. Hood, 307 Ga. App. 439, 706 S.E.2d 566, 2010 Ga. App. LEXIS 1145 (2010). Application Evidence of connection to gang. - State presented sufficient evidence to con-

nect the defendant to a gang, including extensive evidence of the defendant’s association with other gang members and Facebook posts which displayed distinguishing characteristics associated with the gang, such as hand signs, language, and tattoos. Morris v. State, 340 Ga. App. 295, 797 S.E.2d 207, 2017 Ga. App. LEXIS 62 (2017). Trial court did not abuse the court’s discretion by admitting evidence of the defendant’s alleged membership in a gang because the evidence of gang membership was relevant to and probative of motive based on two witnesses testifying as to the defendant’s gang affiliation. Anglin v. State, 302 Ga. 333, 806 S.E.2d 573, 2017 Ga. LEXIS 890 (2017). Evidence was sufficient to convict the three defendants of unlawful participation in criminal gang activity through the commission of an aggravated assault and an aggravated battery and felony murder predicated upon criminal gang activity involving a simple battery because the defendants wore red clothing and were associated with a criminal street gang; the victim waved a blue bandana and started talking about a rival gang; the three defendants participated in beating the victim; they followed the victim into the road, and beat the victim until the victim lost consciousness; the victim was almost immediately struck by a car and killed; and the witnesses testified that the three defendants were among the men who left the victim lying on the road. Anthony v. State, 303 Ga. 399, 811 S.E.2d 399, 2018 Ga. LEXIS 184 (2018). Sufficient evidence supported the appellant’s conviction for a conspiracy offense that served as a predicate for conviction for violation of the Georgia Street Gang Terrorism and Prevention Act, O.C.G.A. § 16-15-1 et seq., based on the appellant’s rank in the gang, statements to fellow gang members about killing violators of gang rules, communications with gang members who were critical of the victim, coupled with statements that somebody’s got to die, and the appellant’s trip to meet with gang members about the victim. Chavers v. State, 304 Ga. 887, 823 S.E.2d 283, 2019 Ga. LEXIS 21 (2019). Evidence that the defendant displayed gang signs alongside other known gang

Application (Cont’d) members, wore a red bandana to represent an association with a gang, had a tattoo associated with the Goodfellaz gang, and had previously pled guilty to participation in criminal street gang activity, and telephone recordings between the defendant and other gang members discussing violent crimes supported the defendant’s conviction for criminal street gang activity. Redding v. State, 354 Ga. App. 525, 841 S.E.2d 192, 2020 Ga. App. LEXIS 194 (2020). Defendant’s convictions for violating the Georgia Street Gang Terrorism and Prevention Act, O.C.G.A. § 16-15-1 et seq., were supported by evidence that the defendant was in a gang and committed the home invasion and armed robbery in furtherance of the gang. Overstreet v. State, 312 Ga. 565, 864 S.E.2d 14, 2021 Ga. LEXIS 645 (2021). Evidence was sufficient to support defendant’s conviction for participation in criminal street gang activity because it showed that he was a member of the gang, he had frequent contact with the gang members, and he had participated in violent crimes with them, including on three specific occasions. Defendant’s activities, including the attempted robbery of the victim, furthered the gang’s goal of collecting money, drugs, jewelry, and guns. Drennon v. State, 314 Ga. 854, 880 S.E.2d 139, 2022 Ga. LEXIS 282 (2022). Evidence was sufficient to support defendants’ convictions of criminal street gang crimes because experts testified that the defendants’ gang was a traditional gang and that members committed an array of criminal activity, defendants sent an email using gang symbols and terminology and made hand signs associated with the gang, another gang member threatened the victim, and a gang member orchestrated the victim’s killing with defendants. Rooks v. State, 317 Ga. 743, 893 S.E.2d 899, 2023 Ga. LEXIS 230 (2023). Evidence sufficient to show party to gang activity. - Evidence was sufficient to show the defendant’s participation in gang activity as a party to the crime under O.C.G.A. § 16-2-20(a) and (b)(4): the

defendant and other gang members drove cars into a neighborhood, exited the cars, and began fighting with the residents; the defendant shouted “bust that sh*t,” and another gang member fired a gun, killing the victim. Parks v. State, 304 Ga. 313, 818 S.E.2d 502, 2018 Ga. LEXIS 548 (2018). Evidence was sufficient to convict the defendant as a party of, inter alia, malice murder and a violation the Street Gang Terrorism and Prevention Act as the defendant and the codefendant were active members of the same gang; cell phone records placed the defendant’s phone near the victims’ apartment, various ATMs, and the gang house on the day of the murders; the jury was free to reject as unreasonable the possibility that some other unidentified person was using the defendant’s SUV and phone; and the jury could infer that the murders were committed in order to obtain status within the gang. Beamon v. State, 314 Ga. 798, 879 S.E.2d 457, 2022 Ga. LEXIS 261 (2022). Unlawful participation in criminal gang activity through commission of simply battery. - When the three defendants were found guilty of felony murder predicated on the defendants’ unlawful participation in criminal gang activity through the commission of a simple battery, and the defendants were also found guilty of voluntary manslaughter, the trial court properly convicted the defendants of felony murder because unlawful participation in criminal gang activity through the commission of a simple battery was not just a simple battery as it involved a nexus between the simple battery and the activities of the criminal street gang; and the culpability for unlawful participation in criminal gang activity was generally not susceptible of mitigation by the sort of provocation and passion that voluntary manslaughter involved. Anthony v. State, 303 Ga. 399, 811 S.E.2d 399, 2018 Ga. LEXIS 184 (2018). Merger of criminal gang activity convictions. - After the three defendants were properly found guilty of felony murder predicated upon criminal gang activity involving a simple battery, the trial court erred when the court failed

to merge the defendants’ criminal gang activity involving an aggravated assault and criminal gang activity involving an aggravated battery convictions into the felony murder conviction because all of the unlawful participation in criminal gang activity of which the three defendants were found guilty occurred at the same location, occurred at the same time, and was directed against the same victim. Anthony v. State, 303 Ga. 399, 811 S.E.2d 399, 2018 Ga. LEXIS 184 (2018). Merger required. - Trial court erred sentencing defendant on two counts in violation of O.C.G.A. § 16-15-4(b) because there was no statutory basis to conclude that the legislature intended that proof of intent to maintain status or position in a gang would constitute a separate unit of prosecution in § 16-15-4(b) from proof of intent to increase status or position in a gang. Monroe v. State, 315 Ga. 767, 884 S.E.2d 906, 2023 Ga. LEXIS 50 (2023). Evidence sufficient for conviction. - Evidence was sufficient for conviction under former paragraph (b)(1) based on defendant’s statement at the sheriff’s office that the robbery and killing of the victim was undertaken in furtherance of defendant’s participation in a criminal street gang, for the purpose of increasing defendant’s own rank and influence within the gang, and to perpetuate the gang and its rank structure. Jackson v. State, 272 Ga. 191, 528 S.E.2d 232, 2000 Ga. LEXIS 256 (2000), overruled in part, Clark v. State, 315 Ga. 423, 883 S.E.2d 317, 2023 Ga. LEXIS 13 (2023); Warren v. State, 245 Ga. App. 768, 538 S.E.2d 840, 2000 Ga. App. LEXIS 1077 (2000). Defendant juvenile was properly found to have committed the crime of participation in criminal street gang activity under O.C.G.A. § 16-15-4(a) because the evidence supported a finding that the defendant was part of a criminal street gang under O.C.G.A. § 16-15-3(2) (now paragraph (3)) based on the colors the defendant wore and the statement as to the removal of a gang tattoo and because the defendant committed the enumerated offenses of carrying a concealed weapon and theft by shoplifting as referenced by O.C.G.A. §§ 16-14-3 and 16-15-3(1)(A), (J) and apparently stole a flare gun with the

intent to further gang activity. In the Interest of C.P., 296 Ga. App. 572, 675 S.E.2d 287, 2009 Ga. App. LEXIS 269 (2009). Evidence was sufficient to support the defendant’s conviction of participation in criminal street gang activity. The evidence showed that the defendant was a member of an established street gang; additionally, the evidence that the defendant committed simple battery and less than a week later committed aggravated assault and aggravated battery against rival gang members showed a pattern of criminal gang activity. Lopez v. State, 297 Ga. App. 618, 677 S.E.2d 776, 2009 Ga. App. LEXIS 492 (2009), overruled in part, State v. Gardner, 286 Ga. 633, 690 S.E.2d 164, 2010 Ga. LEXIS 121 (2010). Evidence was sufficient to support the defendant’s convictions for felony murder, aggravated assault, possession of a firearm during the commission of a crime, and participation in criminal street gang activity. The defendant and fellow gang members walked toward a group of teenagers in a front yard while yelling and making gang signals; the defendant fired once into the crowd, killing the victim, who was unarmed; and the defendant, who fled the scene, was the only person who fired a weapon and was identified to police as the shooter by witnesses who knew the defendant by name. Jackson v. State, 291 Ga. 25, 727 S.E.2d 120, 2012 Ga. LEXIS 366 (2012). Testimony that the defendant was a member of a gang and that the defendant touted that affiliation with the gang to two of the victims a few weeks earlier, permitted the jury to find that the defendant was a member of a street gang and supported the defendant’s conviction for participating in criminal street-gang activity. Jones v. State, 318 Ga. App. 26, 733 S.E.2d 72, 2012 Ga. App. LEXIS 841 (2012). Evidence including testimony as to the gang’s criminal activities, corroborating the defendant’s participation in the armed robberies; the defendant’s admission to participating in two murders; and a gun the defendant used in the attempted armed robbery of the first victim was sufficient to support the defendant’s convictions for criminal street gang activity,

Application (Cont’d) criminal attempt to commit armed robbery, two counts of aggravated assault, and possession of a firearm during the commission of a felony. Morris v. State, 322 Ga. App. 682, 746 S.E.2d 162, 2013 Ga. App. LEXIS 589 (2013). Evidence that the defendant admitted to associating with a gang; the defendant referenced gangs on a Facebook page associated with the defendant’s street name; the defendant possessed a firearm, the defendant was found near the residence of the suspected shooter shortly after the shooting; and that gang members were often sought to retaliate for prior acts of violence supported the conviction for participation in criminal gang activity. In the Interest of L. P., 324 Ga. App. 78, 749 S.E.2d 389, 2013 Ga. App. LEXIS 798 (2013). Testimony that the defendants wore colors associated with a criminal street gang at the time of the robbery, talked about the defendants’ gang membership and indicated that the defendants wanted to do some robberies to make money to get back home, and that the defendants continued to communicate about the crimes in jail was sufficient to support the defendants’ convictions for criminal street gang activity. Alston v. State, 329 Ga. App. 44, 763 S.E.2d 504, 2014 Ga. App. LEXIS 617 (2014). Evidence was sufficient to support the defendant’s conviction for participation in criminal gang activity because the defendant claimed affiliation with a gang by hanging out with the gang, and the defendant and several others took guns with them to a rival gang neighborhood where a shooting erupted. Taylor v. State, 331 Ga. App. 577, 771 S.E.2d 224, 2015 Ga. App. LEXIS 199 (2015). State introduced evidence from which a jury would be authorized to find a nexus between the defendants’ actions in seeking out and beating up the victim and the defendants’ intent to further gang activity by ensuring that the gang responded strongly to the victim’s disrespect of a gang member’s offer of association and, thus, the evidence supported the gang activity convictions. Zamudio v. State, 332

Ga. App. 37, 771 S.E.2d 733, 2015 Ga. App. LEXIS 261 (2015), overruled in part, Priester v. State, 309 Ga. 330, 845 S.E.2d 683, 2020 Ga. LEXIS 465 (2020), overruled in part as stated in Marshall v. State, 309 Ga. 698, 848 S.E.2d 389, 2020 Ga. LEXIS 608 (2020). Evidence that the defendant met with the codefendants and set forth a plan to rob the victim, the defendant directed the plan to rob the victim to get respect from the victim and take over the victim’s marijuana territory, and a codefendant was supposed to get an increase in rank in the gang for driving a car occupied by the defendant was sufficient to support the defendant’s convictions for conducting criminal gang activity. Nolley v. State, 335 Ga. App. 539, 782 S.E.2d 446, 2016 Ga. App. LEXIS 32 (2016). Sufficient evidence, including expert testimony, supported the appellants’ convictions because the evidence established that the appellants were associated with a criminal street gang and that the armed robbery and aggravated assault the appellants engaged in constituted criminal street gang activity and were intended to further the interests of the gang. Lupoe v. State, 300 Ga. 233, 794 S.E.2d 67, 2016 Ga. LEXIS 769 (2016). Evidence was sufficient to support the Street Gang Terrorism and Prevention Act, O.C.G.A. § 16-15-1 et seq., convictions as the defendant participated in criminal gang activity through the commission of a malice murder and an aggravated assault because the jury was authorized to conclude that the defendant shot and killed the victim, who was a member of a rival gang, in retaliation for the victim’s shooting at a member of the defendant’s gang. Jackson v. State, 306 Ga. 706, 832 S.E.2d 809, 2019 Ga. LEXIS 599 (2019). Evidence was sufficient to convict the defendant of participating in criminal gang activity through the commission of the offenses of malice murder, aggravated assault, and possession of a handgun by an underaged person because the evidence authorized the jury to find that the defendant was associated with a set of a criminal street gang, and that the defendant participated in criminal gang activ-

ity with other associates and members of that set, such as initiating new members through beatings; and that the defendant committed the offenses to retaliate for the first victim’s verbal and physical conduct that the defendant viewed as disrespectful of the defendant’s gang. Dixon v. State, 309 Ga. 28, 843 S.E.2d 806, 2020 Ga. LEXIS 360 (2020). Defendant was properly convicted of violating the Georgia Street Gang Terrorism and Prevention Act, O.C.G.A. § 16-15-1 et seq., as the jury was authorized to weigh the evidence and to credit the testimony of the defendant’s fellow inmate that the defendant said the defendant was acting at the behest of other gang members, as the defendant had at other times before, when the defendant approached the victim to rob the victim. Dunn v. State, 312 Ga. 471, 863 S.E.2d 159, 2021 Ga. LEXIS 623 (2021). Evidence was sufficient to convict the defendant of violating the Georgia Street Gang Terrorism and Prevention Act, O.C.G.A. § 16-15-1 et seq., because an officer’s testimony and the photographs and video from the defendant’s social media page satisfied the requirements that the defendant was associated with a criminal street gang; that the defendant committed the predicate acts of aggravated assault and armed robbery; and that the commission of those offenses was intended to further the interests of the gang. Mahogany v. State, 366 Ga. App. 750, 884 S.E.2d 141, 2023 Ga. App. LEXIS 76 (2023). Evidence was sufficient to support defendant’s conviction because defendant told officers that defendant’s friend, who was a gang member, offered to pay defendant a substantial sum of money to help the friend resolve an internal gang dispute by killing the victim and that defendant had agreed to her terms. Blocker v. State, 316 Ga. 568, 889 S.E.2d 824, 2023 Ga. LEXIS 133 (2023). Evidence insufficient for conviction. - Evidence was insufficient to adjudicate a juvenile a delinquent for actively and willingly causing or coercing another to participate in a gang in the commission of a felony, with knowledge

that the gang’s members had engaged in a pattern of criminal street gang activity, under O.C.G.A. § 16-15-4(d), because there was no evidence the juvenile caused or coerced another person to participate in the commission of a crime. In the Interest of N.L.G., 267 Ga. App. 428, 600 S.E.2d 401, 2004 Ga. App. LEXIS 674 (2004). Defendant’s adjudication of juvenile delinquency based on a charge that the defendant was violating the terms of probation by associating with gang members had to be reversed; the state failed to prove the predicate acts of a count charging the defendant with participation in criminal street gang activity, and the state admitted that the probation violation count did not contain sufficient factual details to inform the defendant of the nature of the offense charged. In the Interest of L.J.L., 284 Ga. App. 801, 645 S.E.2d 371, 2007 Ga. App. LEXIS 411 (2007). State failed to establish that a “criminal street gang” was involved in a battery for purposes of O.C.G.A. § 16-15-4(a). The investigating officer’s testimony merely established that the juveniles were members of gangs, not the gangs’ activities, and therefore was insufficient to show that the gangs were involved in criminal gang activity. In the Interest of A. D., 311 Ga. App. 384, 715 S.E.2d 787, 2011 Ga. App. LEXIS 735 (2011). Conviction for violation of the Georgia Street Gang Terrorism and Prevention Act, O.C.G.A. § 16-15-1 et seq., was reversed because there was no evidence beyond the bandanas and a notebook to link the juveniles to membership in a criminal street gang. To sustain a conviction, the state had to prove that the criminal gang activity or plans for the gang’s continuation was ongoing at the time of the commission of the indicted offenses; in other words, the commission of an enumerated offense by the juveniles was not itself sufficient to prove the existence of a criminal street gang. In the Interest of A. G., 317 Ga. App. 165, 730 S.E.2d 187, 2012 Ga. App. LEXIS 639 (2012). Defendant’s conviction under the Georgia Street Gang Terrorism and Prevention Act, O.C.G.A. § 16-15-1 et seq., had to be

Application (Cont’d) reversed as the state did not present evidence of the necessary nexus between the defendant’s drug crimes and an intent to further gang interests because, while the defendant might have intended, by distributing marijuana, to further the interests of individual gang members in obtaining small quantities of marijuana for personal use, the state did not show that the defendant meant to further the interests of the gang as an entity; and there was no evidence that the defendant’s distribution of personal-use amounts of marijuana to individual gang members benefitted the gang itself through monetary profit, enhanced reputation, or other means. Randolph v. State, 334 Ga. App. 475, 780 S.E.2d 19, 2015 Ga. App. LEXIS 719 (2015). Evidence was insufficient to support the defendant’s conviction for engaging in a criminal street gang because the state did not present any evidence that the defendant committed the burglary to further the interest of a gang it was alleged the defendant was a part of, nor did the state present any evidence showing that the victims of the burglary or any witnesses were aware that the crime was committed by gang members. In the Interest of W. B., 342 Ga. App. 277, 801 S.E.2d 595, 2017 Ga. App. LEXIS 242 (2017). Evidence was insufficient to sustain the three defendants’ conviction for criminal gang activity involving an affray because an affray requires a fight between willing participants; and there was no evidence that the victim willingly fought the assailants, only that the victim was beaten by the assailants, tried to retreat, and then was beaten some more. Anthony v. State, 303 Ga. 399, 811 S.E.2d 399, 2018 Ga. LEXIS 184 (2018). Evidence was insufficient to adjudicate the defendant juvenile delinquent based on the offense of participation in criminal street gang activity because the only evidence that the defendant was involved with a criminal street gang was that the defendant was in the presence of two people who had previously been adjudicated as gang members and that the defendant possessed a gun that belonged to

a gang member; and the state presented no evidence that the defendant was wearing any colors or attire that were uniquely associated with the gang, that the defendant had ever displayed signs or symbols affiliated with gang membership, or that the defendant had previously spent time with members of the gang. In the Interest of T. W., 344 Ga. App. 338, 810 S.E.2d 582, 2018 Ga. App. LEXIS 25 (2018). Evidence of gang activity. - State’s failure to indict defendant under the statute did not bar the introduction of gang related evidence. There is no requirement that the state charge a defendant with violating the prohibition of participation in criminal street gang activity in order to admit otherwise relevant evidence of gang activity. Wolfe v. State, 273 Ga. 670, 544 S.E.2d 148, 2001 Ga. LEXIS 256 (2001). Delinquency petition properly charged that a juvenile participated in criminal street gang activity pursuant to O.C.G.A. § 16-15-4(e) because the petition stated that the juvenile did engage in, directly or indirectly, criminal gang activity, a crime of violence in the State of Georgia, as defined in O.C.G.A. § 16-15-3(1)(J), and the juvenile was also adjudicated delinquent for organizing and promoting an affray in violation of O.C.G.A. § 16-11-32, which fell within the criminal conduct contemplated by O.C.G.A. § 16-15-3(1)(J); the juvenile instructed a student on becoming a gang member, organized a fight for the student, and gave the student a booklet containing gang history and jargon, and there was also evidence that the student paid the juvenile a “gang tax” and that the juvenile referenced being a lieutenant in the gang. In re X. W., 301 Ga. App. 625, 688 S.E.2d 646, 2009 Ga. App. LEXIS 1315 (2009), cert. denied, No. S10C0492, 2010 Ga. LEXIS 335 (Ga. Apr. 19, 2010). Evidence was sufficient to support the juvenile court’s finding that a juvenile committed an act which, had the juvenile been an adult, would have resulted in a conviction of participation in criminal street gang activity because the juvenile and gang investigator for a police department testified about the juvenile’s familiarity with the gang and stated that there

were more than three members of the gang, and a student testified that the juvenile facilitated an affray to further a gang activity, specifically the student’s membership in the gang. In re X. W., 301 Ga. App. 625, 688 S.E.2d 646, 2009 Ga. App. LEXIS 1315 (2009), cert. denied, No. S10C0492, 2010 Ga. LEXIS 335 (Ga. Apr. 19, 2010). There was sufficient evidence to support the defendant juvenile’s adjudication of delinquency for participation in criminal street gang activity in violation of O.C.G.A. § 16-15-4 because the evidence established that the defendant was a gang member and that there was a nexus between the shooting and an intent to further gang activity; the defendant admitted that the defendant was a member of the gang, and a police detective, who was qualified as an expert in gang investigations, testified that the defendant was a known member of the gang, that the defendant had previously admitted to the detective that the defendant was a member of that gang, that a black bandana was attire associated with the gang, and that wearing such a bandana during a shooting was particularly significant because the bandana proclaimed to the world that the defendant was a member and that the shooting was a gang act. In the Interest of D. M., 307 Ga. App. 751, 706 S.E.2d 683, 2011 Ga. App. LEXIS 66 (2011). Gang-related evidence was admissible because the defendants were charged with engaging in criminal street gang activity under O.C.G.A. § 16-15-4; moreover, even though the statements of gang activity placed the defendants’ character in issue, the statements were admissible as res gestae of the crimes of gang activity and aggravated assault and battery. Morey v. State, 312 Ga. App. 678, 719 S.E.2d 504, 2011 Ga. App. LEXIS 960 (2011), cert. denied, No. S12C0451, 2012 Ga. LEXIS 592 (Ga. June 18, 2012). On a charge of criminal street gang activity, the state was properly allowed to admit videotapes seized from the defendants’ home that were made two years earlier as the videotapes depicted gangrelated images and activities; the videotapes were relevant to show the existence

of the gang and the defendants’ affiliation with the gang. Sifuentes v. State, 293 Ga. 441, 746 S.E.2d 127, 2013 Ga. LEXIS 612 (2013). Trial court did not abuse the court’s discretion by admitting evidence of the defendant’s alleged membership in a gang because the evidence of gang membership was relevant to and probative of motive based on two witnesses testifying as to the defendant’s gang affiliation. Anglin v. State, 302 Ga. 333, 806 S.E.2d 573, 2017 Ga. LEXIS 890 (2017). When the defendant was convicted of possession of a firearm by a convicted felon and participation in criminal gang activity, the trial court did not err in admitting evidence that a police investigator, who was qualified as a gang expert, had seized a “book of knowledge” from the house of another gang member as the evidence was relevant to a material issue in the case because a conviction required that there be some nexus between the enumerated act and an intent to further street gang activity; and, based on the book and other information, gang members were required to possess firearms. Lang v. State, 344 Ga. App. 623, 812 S.E.2d 16, 2018 Ga. App. LEXIS 99 (2018). In the defendants’ trial for criminal gang activity under O.C.G.A. § 16-15-4(a), a photograph taken inside the courtroom and posted on social media by friends of the defendants with the caption “Free my FAM” was relevant to show that the defendants were members of a gang under O.C.G.A. § 24-4-401 and was not unduly prejudicial under O.C.G.A. § 24-4-403. Anthony v. State, 2018 Ga. LEXIS 143. Nexus between crime and furtherance of gang interest shown. - Two defendants were convicted of malice murder and other crimes in violation of O.C.G.A. § 16-15-4(a) in connection with the shooting death of a drug dealer in the defendants’ gang territory; the evidence established a nexus between the robbery of the drug dealer and an intent to further the interests of the gang, based on expert testimony that the gang made most of the gang’s money through armed robberies. Stripling v. State, 304 Ga. 131, 816 S.E.2d 663, 2018 Ga. LEXIS 454 (2018).

Application (Cont’d) State presented sufficient evidence that the defendant and three others conspired to engage in criminal street gang activity as defined by O.C.G.A. § 16-15-3(1); one member ordered the defendant and another to conduct a sale of methamphetamine, and they enlisted a fourth member to drive them to get drugs and to the site of the sale, where the defendant and the others shot and robbed the victims. Boyd v. State, 306 Ga. 204, 830 S.E.2d 160, 2019 Ga. LEXIS 439 (2019). Inadequate definition of criminal gang activity. - Trial court’s pre-trial ruling pursuant to O.C.G.A. §§ 16-15-4 and 24-4-418 (Rule 418), excluding two alleged prior acts of criminal gang activity committed by the defendant was reversed because the trial court’s order confused the definition of criminal gang activity and the elements of proof of crime of participation in criminal street gang activity, thus, improperly requiring the state to prove the elements under O.C.G.A. § 16-15-4, even though that was not the standard. State v. McKinney, 366 Ga. App. 251, 881 S.E.2d 699, 2022 Ga. App. LEXIS 545 (2022), aff’d, 318 Ga. 566, 899 S.E.2d 121, 2024 Ga. LEXIS 66 (2024). Charge did not omit nexus between violence and gang activity. - With regard to the defendant’s convictions for aggravated assault and gang-related crimes, the trial court did not commit plain error with regard to the court’s jury instructions because the trial court correctly stated the law by using the statutory language in the Georgia Street Gang Terrorism and Prevention Act, O.C.G.A. § 16-15-4(a), in the court’s charge to the jury, so the charge did not omit a nexus between the violence, and it was not possible for the jury to convict the defendant without finding that nexus. Skinner v. State, 318 Ga. App. 217, 733 S.E.2d 506, 2012 Ga. App. LEXIS 882 (2012). Trial court’s instruction on participation in criminal gang activity was a correct and complete statement of the law, and did not constitute plain error because the instruc-

tion did not fail to limit the scope of the jury’s inquiry to the specific predicate criminal acts alleged in the indictment; and the instruction listed the four elements of the offense. Dixon v. State, 309 Ga. 28, 843 S.E.2d 806, 2020 Ga. LEXIS 360 (2020). Sentence Sentence not void. - Defendant’s 10-year sentence for violation of the Georgia Street Gang Terrorism and Prevention Act, O.C.G.A. § 16-15-1 et seq., and aggravated assault was not void as the sentence fell within the range of permitted sentences and, thus, did not amount to a punishment that the law did not allow. Garza v. State, 325 Ga. App. 505, 753 S.E.2d 651, 2014 Ga. App. LEXIS 2 (2014), cert. denied, No. S14C0656, 2014 Ga. LEXIS 422 (Ga. May 19, 2014). Sentence not cruel and unusual punishment. - Defendant’s sentences of 20 years in confinement for the aggravated assault on the deceased victim, followed by 20 years for the aggravated assault on the second victim (with five years in confinement and the remainder on probation), followed by an additional 15 years of probation for the charge of participation in criminal street gang activity and another five years’ probation for the possession of a firearm during the commission of a felony, to run consecutively to the other sentences, were within the statutory range for those crimes, and did not constitute cruel and unusual punishment. Taylor v. State, 331 Ga. App. 577, 771 S.E.2d 224, 2015 Ga. App. LEXIS 199 (2015). Merger of counts required. - Counts 3 and 13 charged the defendant under the same statute, O.C.G.A. § 16-15-14, with gang activity accomplishing the same goal of acquiring an interest in the victim’s marijuana and cell phone, by two different means of armed robbery and aggravated assault, based on the same course of conduct of using a gun on the victim; thus, because there was no element of aggravated assault with a deadly weapon that was not contained in an armed robbery, that form of aggravated assault merged into armed robbery since the crimes were part

of the same act or transaction. Salaam v. State, 367 Ga. App. 549, 887 S.E.2d 392, 2023 Ga. App. LEXIS 184 (2023). Merger of counts erroneous. - Trial court erred by merging the guilty verdicts

for armed robbery, burglary, and two counts of gang activity as armed robbery and burglary did not merge into malice murder. Lupoe v. State, 300 Ga. 233, 794 S.E.2d 67, 2016 Ga. LEXIS 769 (2016).

RESEARCH REFERENCES ALR. Validity of criminal state Racketeer Influenced and Corrupt Organizations

Acts and similar acts related to gang activity and the like, 58 A.L.R.6th 385.