In G.H. v. State, ___ N.E.2d ___ (Ind.Ct.App. 2013), the Court found that the State failed to prove an element of Criminal Gang Activity as a Class D Felony at IC 35-45-9-3, specifically that G.H. had the intent to further a gang’s criminal goals. The adjudication for Criminal Gang Activity was reversed.
This case is another in a line of cases defining a “gang” and “gang activity”. This can be a critical issue in juvenile cases, as both Criminal Gang Activity at IC 35-45-9-3 and Criminal Gang Intimidation at IC 35-45-9-4 are “direct file” charges, meaning that the juvenile court lacks jurisdiction pursuant to IC 31-30-1-4 if the child is at least 16 years of age. Those cases would have to be filed in criminal court without any juvenile court involvement.
In G.H. v. State, in December 2010, several boys were attending a party, during which a fight broke out and V.A. was battered outside G.H.’s home. V.A. was later pursued through the streets by several boys, including G.H., as V.A. tried to make his way home. V.A. testified that while in an alley, he heard shouts of “skoo woo” (a way of identifying themselves as members of a gang) and “Drop ‘Em Squad” (a confirmed Indianapolis, east-side gang). His brother, J.A. testified that he did not hear those words. No witnesses were able to link G.H. to gang activity. Following a factfinding hearing, the trial court entered a true finding as to the allegations of Criminal Gang Activity as a Class D Felony and Battery as a Class A Misdemeanor.
IC 35-45-9-1 defines a criminal gang as a group with at least three members that: (1) either: (A) promotes, sponsors, or assists in; or (B) participates in; or (2) requires as a condition of membership or continued membership; the commission of a felony or an act that would be a felony if committed by an adult or the offense of battery at IC 35-42-2-1.
To prove that G.H. committed Criminal Gang Activity, the State must show that G.H.: (1) was an active member of a criminal gang, (2) had knowledge of the group’s criminal advocacy, and (3) had a specific intent to further the group’s criminal goals, as evidenced by a nexus between furthering the goals of the criminal activity and the alleged crime. Robles v. State, 758 N.E. 2d 581, 585 (Ind.Ct.App. 2001).
The Court focused on the battery outside G.H.’s home, where there was no mention of the gang or any criminal goal of a gang. Additionally, the allegations against G.H. were unrelated to any activity in the alley where the V.A. alleged that the gang was mentioned. Therefore, “the State failed to prove that G.H. had a specific intent to further Drop ‘Em Squads criminal goals….”