The underlying procedural history relevant to this appeal is undisputed.1 On March 24, 2009, the Fulton County Grand Jury returned a multi-count indictment against twelve defendants;2 Count 1 of the indictment charged the defendants with participating in criminal street gang activity in violation of OCGA § 16-15-43 “for the accused, . . . on and between January 1, 2007 and June 18, 2008 did unlawfully, while associated with a criminal street gang, known as 30 Deep participate in such criminal street gang activity by committing certain predicate offenses.” The defendants filed general and special demurrers to the indictment,4 with subsequent amendments, moving to quash Count 1. Defendants argued that, among other things, the indictment failed to allege when “30 Deep” became a criminal street gang as defined by OCGA § 16-15-3 2 and failed to adequately give the offense date, which they asserted prevented them from presenting their defenses, including their contention that certain enumerated offenses occurred prior to the formation of “30 Deep” as a criminal street gang. The trial court held a hearing on defendants’ motions and demurrers, during which the State opposed the demurrers.5 Following the hearing, the trial court granted the special demurrer as to Count 1 of the indictment and quashed that count, finding that the date the gang formed was a material element of the crime of participating in criminal street gang activity and that the State was required to, but had failed to, allege that the gang existed, even for a short period, prior to the commission of the enumerated offenses. The trial court further found that even if the indictment sufficiently alleged the gang’s existence prior to the commission of the enumerated crimes, the indictment nevertheless did not comply with OCGA § 17-7-54 because the State had failed to respond to defendants’ special demurrers by alleging a specific date on which the gang came into existence or existed prior to the alleged occurrence of the enumerated offenses and offered no evidence demonstrating that such a date could not be specifically identified. The State appeals.
As noted above, defendants in this case filed both general and special demurrers. A general demurrer challenging the sufficiency of the substance of the indictment is appropriate when the indictment is “fatally defective and incapable of supporting a conviction.” State v. Delaby , 298 Ga. App. 723, 724 681 SE2d 645 2009. See also Bramblett v. State , 239 Ga. 336, 337 1 236 SE2d 580 1977. “The true test of the sufficiency of the indictment to withstand a general demurreris found in the answer to the question: Can the defendant admit the charge as made and still be innocent If he can, the indictment is fatally defective. Cit.” Adams v. State, 293 Ga. App. 377, 381 3 667 SE2d 186 2008.
