A delinquency petition was filed in the Juvenile Court of DeKalb County, accusing 14-year-old D. M. of committing acts which, if committed by an adult, would constitute two counts of aggravated assault with a deadly weapon, and one count each of criminal street gang activity, possession of a handgun by a minor, possession of a firearm during the commission of a crime, and carrying a pistol without a license. After a hearing, the juvenile court adjudicated D. M. delinquent for all of the alleged offenses and entered a designated felony order, committing him to the Department of Juvenile Justice for 60 months, 48 of those months to be served in restrictive custody. D. M. appeals, challenging the sufficiency of the evidence supporting the adjudication as to criminal street gang activity, the juvenile court’s failure to merge two of the weapons offenses, and the effectiveness of his counsel. Contrary to D. M.’s claims, there is sufficient evidence to support the criminal gang activity adjudication. The weapons offenses do not merge, because each requires proof of a fact that the other does not. As to ineffective assistance, we remand the case to the juvenile court for a hearing, as this appeal was D. M.’s first opportunity to raise that claim.
1. In reviewing an adjudication of delinquency, this court construes the evidence and all reasonable inferences therefrom “in favor of the juvenile court’s adjudication to determine if a reasonable finder of fact could have found, beyond a reasonable doubt, that the juvenile committed the acts charged.” Citations and punctuation omitted. In the Interest of C. R. , 294 Ga. App. 164 669 SE2d 193 2008. So construed, the evidence shows that on June 24, 2009, D. M., his older brother D. T., and at least one other young man traveled by car to an apartment complex and came upon Deshaun Hooker and Hooker’s brother. D. M. and the others got out of the car, each of them wearing a black bandana around their neck or face, and began firing gunshots at Hooker and his brother. According to Hooker, both D. M. and D. T. had the reputation of being members of the Gangster Disciples gang. A police detective, who was qualified as an expert in gang investigations, also testified that D. M. and D. T. were known members of the Gangster Disciples, and that D. M. had previously admitted to him that he was a member of that gang. The detective further testified that a black bandana is attire associated with the Gangster Disciples and that wearing such a bandana during a shooting is particularly significant because it “proclaims to the world that they are a member and that this is a gang act.”
