O.C.G.A.
Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.
For the purpose of proving the existence of a criminal street gang and criminal gang activity, the commission, adjudication, or conviction of any offense enumerated in paragraph (1) of Code Section 16-15-3 by any member or associate of a criminal street gang shall be admissible in any trial or proceeding. Evidence offered under this Code section shall not be subject to the restrictions in paragraph (22) of Code Section
History
Code 1981, § 16-15-9, enacted by Ga. L. 2006, p. 519, § 3/HB 1302; Ga. L. 2010, p. 230, § 5/HB 1015; Ga. L. 2016, p. 811, § 5/HB 874.
Annotations
Editor’s notes. Ga. L. 2006, p. 519, § 7/HB 1302, not codified by the General Assembly, provided that this Code section 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.” Law reviews. For annual survey on criminal law, see 68 Mercer L. Rev. 93 (2016). For annual survey on criminal law, see 70 Mercer L. Rev. 63 (2018).
JUDICIAL DECISIONS 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). Admission of prior criminal street gang activity proper. - Trial court did not err by admitting into evidence the defendant’s prior conviction for criminal street gang activity as the jury was instructed that the evidence could only be
considered for the determination of whether the defendant was currently guilty of criminal gang activity, and not the remaining counts of the indictment. Brown v. State, 300 Ga. 446, 796 S.E.2d 283, 2017 Ga. LEXIS 29 (2017). Trial court did not err in admitting evidence that several months prior to the incident in the current case, the defendant was in possession of one or two guns because the evidence of the incident was relevant to show that while a member of a gang the defendant committed a criminal offense involving possession of a weapon as the defendant was a convicted felon at the time of the prior incident. Lang v. State, 344 Ga. App. 623, 812 S.E.2d 16, 2018 Ga. App. LEXIS 99 (2018).
There was no error in the admission of the defendant’s prior acts because each prior act was committed while the defendant was a gang member and either an expert or police officer explained that the prior offenses reflected gang behaviors. Lopez v. State, 350 Ga. App. 662, 829 S.E.2d 862, 2019 Ga. App. LEXIS 352 (2019), cert. denied, No. S19C1467, 2020 Ga. LEXIS 123 (Ga. Feb. 10, 2020), cert. denied, No. S19C1482, 2020 Ga. LEXIS 121 (Ga. Feb. 10, 2020). Evidence sufficient for conviction. - 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).
Notes of Decisions
Cited in
27
cases (
10 in the last 5 years), 2015–2026 · leading case:
State v. Jefferson, 807 S.E.2d 387 (Ga. 2017).
State v. Jefferson, 807 S.E.2d 387 (Ga. 2017).
· cites it 32× “In connection with the State’s efforts to build a case against Appel-lees, the State gave notice of its intention to introduce into evidence at trial four certified copies of convictions relating to various gang *436 members 1 pursuant to OCGA § 16-15-9. 2 That statute, as…”
Lupoe v. State, 794 S.E.2d 67 (Ga. 2016).
· cites it 8× “37, 44 ( 771 SE2d 733 ) (2015) (rejecting a similar contention on the ground that OCGA § 16-15-9 provides that “(t)he commission of any offense enumerated in [OCGA § 16-15-3 (1)] by any member or associate of a criminal street gang shall be admissible in any trial or proceeding…”
Anthony v. State, 811 S.E.2d 399 (Ga. 2018).
· cites it 10× “The trial court admitted all of this evidence under former OCGA § 16-15-9, which-at the time of Anthony's trial-provided that "the commission of any offense enumerated in paragraph (1) of Code Section 16-15-3 [including theft as a "racketeering activity" and any offense…”
Anthony v. The State (three Cases), 303 Ga. 399 (Ga. 2018).
· cites it 10× “The trial court admitted all of this evidence under former OCGA § 16-15-9, which — at the time of Anthony’s trial — provided that the commission of any offense enumerated in paragraph (1) of Code Section 16-15-3 [including theft as a “racketeering activity” and any offense…”
Dunn v. State, 863 S.E.2d 159 (Ga. 2021).
· cites it 16× “Following a hearing, the trial court ruled that the prior 4 OCGA § 16-15-9 provides, in pertinent part: For the purpose of proving the existence of a criminal street gang and criminal gang activity, the commission, adjudication, or conviction of any offense enumerated in…”
Pierce v. State, 907 S.E.2d 281 (Ga. 2024).
· cites it 8× “435 (807 SE2d 387) (2017), which relied on Kirby to hold “that OCGA § 16-15-9[6] is unconstitutional on its face to the extent that it authorizes the admission of the [records of] convictions of non-testifying non-parties as evidence of a criminal street gang.”
Morris v. the State, 797 S.E.2d 207 (Ga. Ct. App. 2017).
· cites it 4× “Next, Morris argues that the trial court erred in giving certain limiting instructions to the jury with regard to evidence it admitted *309 under OCGA § 24-4-404 63 and OCGA § 16-15-9. 64 Morris takes issue with the fact that, on three different occasions, “the court failed to…”
Overstreet v. State, 864 S.E.2d 14 (Ga. 2021).
· cites it 6× “Here, as Overstreet appears to concede, the evidence of the prior incident 26 with the rival gang (including Overstreet’s guilty plea to crimes arising from it) was admissible under OCGA §§ 16-15-9 8 and 24-4- 418 (a)9 and, along with other evidence, helped the State establish…”
McKinney v. State, 899 S.E.2d 121 (Ga. 2024).
· cites it 8× “But the State has conceded that OCGA § 16-15-9 requires proof of gang association at the time of the other act for the act to be admissible under that rule and has not challenged on appeal the trial court’s conclusion that the two acts at issue here are not admissible under OCGA…”
Lang v. State, 812 S.E.2d 16 (Ga. Ct. App. 2018).
· cites it 4× “The state notes that the current version of OCGA § 16-15-9 was not applicable during Lang's trial.”
Brown v. State, 796 S.E.2d 283 (Ga. 2017).
· cites it 2× “The conviction was admitted pursuant to former OCGA § 16-15-9, 4 which provided: The commission of any offense enumerated in paragraph (1) of Code Section 16-15-3 [dealing with criminal gang activity] by any member or associate of a criminal street gang shall be admissible in…”
Zamudio v. State, 771 S.E.2d 733 (Ga. Ct. App. 2015).
· cites it 2× “Further, evidence that Gonzalez was a gang member would have been admissible against Zamudio in a separate trial under OCGA § 16-15-9, which provides that “[t]he commission of any offense enumerated in paragraph (1) of Code Section 16-15-3 by any member or associate of a…”
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