2020 Georgia Code
Title 16 - Crimes and Offenses
Chapter 15 - Street Gang Terrorism and Prevention
§ 16-15-3. Definitions

As used in this chapter, the term:

1. "Criminal gang activity" means the commission, attempted commission, conspiracy to commit, or the solicitation, coercion, or intimidation of another person to commit any of the following offenses on or after July 1, 2006:
   1. Any offense defined as racketeering activity by Code Section 16-14-3;
   2. Any offense defined in Article 7 of Chapter 5 of this title, relating to stalking;
   3. Any offense defined in Code Section 16-6-1 as rape, 16-6-2 as aggravated sodomy, 16-6-3 as statutory rape, or 16-6-22.2 as aggravated sexual battery;
   4. Any offense defined in Article 3 of Chapter 10 of this title, relating to escape and other offenses related to confinement;
   5. Any offense defined in Article 4 of Chapter 11 of this title, relating to dangerous instrumentalities and practices;
   6. Any offense defined in Code Section 42-5-15, 42-5-16, 42-5-17, 42-5-18, or 42-5-19, relating to the security of state or county correctional facilities;
   7. Any offense defined in Code Section 49-4A-11, relating to aiding or encouraging a child to escape from custody;
   8. Any offense of criminal trespass or criminal damage to property resulting from any act of gang related painting on, tagging, marking on, writing on, or creating any form of graffiti on the property of another;
   9. Any criminal offense committed in violation of the laws of the United States or its territories, dominions, or possessions, any of the several states, or any foreign nation which, if committed in this state, would be considered criminal gang activity under this Code section; and
   10. Any criminal offense in the State of Georgia, any other state, or the United States that involves violence, possession of a weapon, or use of a weapon, whether designated as a felony or not, and regardless of the maximum sentence that could be imposed or actually was imposed.
2. "Criminal gang activity" on and after April 18, 2019, shall also mean the commission, attempted commission, conspiracy to commit, or the solicitation, coercion, or intimidation of another person to commit on and after April 18, 2019, any offense defined in Code Section 16-5-46 as trafficking persons for labor servitude or sexual servitude, 16-6-10 as keeping a place of prostitution, 16-6-11 as pimping, or 16-6-12 as pandering.
3. "Criminal street gang" means any organization, association, or group of three or more persons associated in fact, whether formal or informal, which engages in criminal gang activity as defined in paragraph (1) of this Code section. The existence of such organization, association, or group of individuals associated in fact may be established by evidence of a common name or common identifying signs, symbols, tattoos, graffiti, or attire or other distinguishing characteristics, including, but not limited to, common activities, customs, or behaviors. Such term shall not include three or more persons, associated in fact, whether formal or informal, who are not engaged in criminal gang activity.

(Code 1981, §16-15-3, enacted by Ga. L. 1992, p. 3236, § 1; Ga. L. 1998, p. 270, § 8; Ga. L. 1999, p. 81, § 16; Ga. L. 2006, p. 519, § 1/HB 1302; Ga. L. 2010, p. 230, § 2/HB 1015; Ga. L. 2019, p. 81, § 4/HB 424.)

The 2019 amendment, effective April 18, 2019, inserted the second occurrence of "the" preceding "solicitation" in paragraph (1); added paragraph (2); and redesignated former paragraph (2) as present paragraph (3). See Editor's note for applicability.

- Pursuant to Code Section 28-9-5, in 2019, "April 18, 2019" was substituted for "the effective date of this paragraph" in two places in paragraph (2).

- 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. 2019, p. 81, § 8/HB 424, not codified by the General Assembly, provides, in part: "Sections 4 and 5 of this Act shall apply to any motion made or hearing or trial commenced on or after the effective date of this Act."

JUDICIAL DECISIONS

Provision not unconstitutionally vague.

- O.C.G.A. § 16-15-3(1)(I) is not unconstitutionally vague as a plain reading of the subsection indicates that a defendant charged with violating the provision has to do more than commit a criminal offense; the defendant's conduct must also come within one of the defined categories of criminal gang activity enumerated in § 16-15-3(1)(A)-(H), (J), and the description of those crimes together with their correlating statutory provisions in the criminal code provide sufficient notice to the ordinary citizen and clear guidance to law enforcement authorities as to what conduct is forbidden. In re K.R.S., 284 Ga. 853, 672 S.E.2d 622 (2009).

- 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).

§ 16-11-32 meets the definition of criminal gang activity in O.C.G.A. § 16-15-3(1)(J). - Offense of affray meets the definition of criminal gang activity under O.C.G.A. § 16-15-3(1)(J) because the fact that the combatants consent to fight does not negate that fighting is an act of violence. In re X. W., 301 Ga. App. 625, 688 S.E.2d 646 (2009).

- 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., 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).

Proof of a pattern of criminal gang activity was not established by the testimony of a police officer whose information was not based on first hand knowledge and by the testimony of another witness concerning crimes that were not shown to have been committed during the relevant time period. Green v. State, 266 Ga. 237, 466 S.E.2d 577 (1996).

- 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. § 16-15-1 et seq., specifically 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).

- 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).

- 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), cert. denied, No. S19C1467, 2020 Ga. LEXIS 123 (Ga. 2020), cert. denied, No. S19C1482, 2020 Ga. LEXIS 121 (Ga. 2020).

- State presented evidence that the defendant juvenile was associated with a criminal street gang, including evidence of hand symbols, references to gang affiliations, and colors worn. In the Interest of K. S., 348 Ga. App. 440, 823 S.E.2d 536 (2019).

Trial court did not abuse the court's discretion when the court admitted extrinsic evidence of gang activity because the lawyer's statements during opening that the defendant was a member of a gang and that the defendant was in a bind with that gang were not evidence, and the state still had to prove that the defendant was a member of a criminal street gang as well as a connection between that gang and the crimes at issue. Jordan v. State, 307 Ga. 450, 836 S.E.2d 86 (2019).

Evidence that the defendant displayed signs, symbols, and tattoos of a gang and the state's expert testimony that the gang "absolutely" had more than three members was sufficient to support the defendant's conviction for violation of the Street Gang Act, O.C.G.A. § 16-15-1 et seq., by proving the existence of the gang. Chavez v. State, 307 Ga. 804, 837 S.E.2d 766 (2020).

- Evidence was sufficient to convict defendant on a charge of gang activity as it showed the commission of two or more enumerated offenses, including robbery and terroristic threats, that the offenses occurred after a specified statutory date, and that the offenses were committed by two or more persons after defendant and two other assailants abducted the victim, robbed the victim, and threatened to commit a violent act on the victim. Fulcher v. State, 259 Ga. App. 648, 578 S.E.2d 264 (2003).

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 and16-15-3 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).

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).

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).

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), overruled on other grounds, State v. Gardner, 286 Ga. 633, 690 S.E.2d 164 (2010).

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 gang-related 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).

Evidence supported the second defendant's conviction for gang activity as the evidence allowed a jury to find a nexus between the defendants' actions in seeking out and beating up the victim and their intent to further gang activity by ensuring that the gang responded strongly to the victim's disrespect of the gang. Zamudio v. State, 332 Ga. App. 37, 771 S.E.2d 733 (2015).

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).

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).

Evidence that GMC gang members drove though the neighborhood shouting "GMC" and got out of their cars trying to fight the residents was evidence that the gang engaged in criminal street gang activity under O.C.G.A. § 16-15-3(1)(J), including attempting or conspiring to commit a criminal offense that involves violence, such as simple assault (O.C.G.A. § 16-5-20), simple battery (O.C.G.A. § 16-5-23), or battery (O.C.G.A. § 16-5-23.1). Parks v. State, 304 Ga. 313, 818 S.E.2d 502 (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).

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).

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 predicate 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).

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).

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 activity 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, Ga. , 843 S.E.2d 806 (2020).

- 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).

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).

Defendant's conviction under the Georgia Street Gang Terrorism and Prevention Act, O.C.G.A. § 16-15-1 et seq., had to be 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).

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).

- 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).

- Trial court did not err in imposing two sentences for criminal street gang activity as the defendant committed two offenses separately enumerated at different locations and different times against different victims. Veal v. State, 298 Ga. 691, 784 S.E.2d 403 (2016).

Cited in Veal v. State, 242 Ga. App. 873, 531 S.E.2d 422 (2000); In the Interest of L. P., 324 Ga. App. 78, 749 S.E.2d 389 (2013); State v. Jefferson, 302 Ga. 435, 807 S.E.2d 387 (2017); Kemp v. State, 303 Ga. 385, 810 S.E.2d 515 (2018); Stripling v. State, 304 Ga. 131, 816 S.E.2d 663 (2018); Star Residential, LLC v. Hernandez, 354 Ga. App. 629, 841 S.E.2d 392 (2020).

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.