author: Miller, Presiding Judge.

text:
    A11A0898.
    WEST v. THE STATE.
    (716 SE2d 727)
   Miller, Presiding Judge.

Jarvis West appeals from the trial court’s order denying his motion to withdraw his guilty plea. Since West’s motion was untimely filed, the trial court lacked jurisdiction to grant the requested relief. Therefore, the denial of the motion was proper, and we affirm.

The record shows that on August 7, 2009, West entered a negotiated guilty plea to burglary. The trial court entered a judgment of conviction and sentence on August 12, 2009. Approximately one year later, on August 3, 2010, West filed a pro se motion to withdraw his guilty plea. Following a hearing, the trial court denied the motion, from which West appeals.

The denial of West’s motion was required since it was filed untimely. “It is well settled that when the term of court has expired in which a defendant was sentenced pursuant to a guilty plea the trial court lacks jurisdiction to allow the withdrawal of the plea.” (Punctuation and footnote omitted.) Curry v. State, 274 Ga. App. 19 (616 SE2d 225) (2005). See also McKiernan v. State, 286 Ga. 756, 757 (692 SE2d 340) (2010) (“[T]he trial court loses jurisdiction if the motion to withdraw the plea is not made within the term in which the plea is entered and the defendant sentenced.”). Here, West pled guilty and was sentenced during the trial court’s August 2009 term of court. That term had expired before West filed his motion to withdraw his guilty plea on August 3, 2010. Consequently, the trial court lacked jurisdiction to allow the withdrawal of his plea. See Richardson v. State, 306 Ga. App. 269 (1) (701 SE2d 908) (2010); Curry, supra, 274 Ga. App. at 19-20.

Decided August 26, 2011.

Stephen G. Adkins, for appellant.

Under these circumstances, [West’s] only available means to withdraw his guilty plea is through habeas corpus proceedings. [West’s] motion to withdraw his guilty plea, however, cannot be construed to be a habeas corpus petition because it was filed in the county where he was convicted rather than against the warden in the county where he is incarcerated. The trial court therefore did not err in denying [West’s] untimely motion to withdraw his guilty plea.

(Footnotes omitted.) Curry, supra, 274 Ga. App. at 20.

Judgment affirmed.

Ellington, C. J., and Doyle, J., concur.

J. David Miller, District Attorney, Brian A. McDaniel, Assistant District Attorney, for appellee.

       We note that the trial court erroneously considered and denied West’s motion on its substantive merits. As explained herein, the trial court should have denied the motion as untimely. Nevertheless, we will affirm the trial court’s decision when it is right for any reason. See Mathis v. State, 279 Ga. 100, 102 (3) (a) (610 SE2d 62) (2005); Volz v. State, 306 Ga. App. 763, 766 (703 SE2d 354) (2010).

       “An exception exists if a defendant challenges a void sentence!.] ... In that case, the defendant may withdraw his guilty plea as of right, even following the expiration of the term of court in which the void sentence was pronounced.” (Citation and punctuation omitted.) Spencer v. State, 309 Ga. App. 630 (2) (710 SE2d 837) (2011). See also Kaiser v. State, 285 Ga. App. 63, 68-69 (1) (646 SE2d 84) (2007). The exception is inapplicable here, however, since West does not contend that his sentence was void.

       The terms of court for the Superior Court of Colquitt County commence on the first Monday in February and August. See OCGA § 15-6-3 (35) (B).


source: Caselaw Access Project

author: MlKELL, Judge.

license: Public Domain

text:
    A11A0985, A11A0986.
    JESSUP v. RAY et al.; and vice versa.
    (716 SE2d 583)
   MlKELL, Judge.

After judgment was entered against them and in favor of Faye Jessup in the magistrate court, Frank Ray, Pat Ray and Fran Ray (the “Rays”) filed an appeal in superior court pursuant to OCGA § 15-10-41 (b) (1). Jessup filed a voluntary dismissal of her claims against the Rays in superior court pursuant to OCGA § 9-11-41 (a) (1) (A) and then timely filed a renewal action. The trial court granted the Rays’ motion to dismiss Jessup’s claim and reinstated the magistrate court’s judgment against the Rays. Both parties appeal the portions of the trial court’s order adverse to their interests. For the reasons set forth below, we reverse the judgment and remand the case to the superior court.

We review a dismissal of a complaint de novo. So viewed, the record shows that Jessup filed a claim in magistrate court against the Rays for breach of a lease contract. The Rays answered and filed a counterclaim. After the magistrate court entered judgment for Jessup, the Rays appealed to superior court. Jessup then filed a “dismissal without prejudice” of her claims pending before the superior court, and the Rays dismissed their counterclaims.

Jessup then filed this renewal action in the superior court. The Rays answered and filed a counterclaim. The Rays then moved to dismiss Jessup’s complaint. The superior court granted the motion to dismiss, finding that only the Rays, as the party who filed the complaint from magistrate court, would be able to file a renewal action in the superior court. The superior court found that Jessup’s dismissal did not dismiss the underlying case, and that the former action was not dismissed until the Rays, the appellants of the magistrate court judgment, filed their voluntary dismissal. Although the superior court did not expressly dismiss the Rays’ counterclaim in the instant action, it held that because the Rays did not renew their case, the magistrate court judgment stands reinstated, thereby implicitly dismissing the counterclaim. Both parties appeal. In Case No. A11A0985, Jessup appeals the trial court’s order granting the motion to dismiss. In Case No. A11A0986, the Rays appeal the portion of the trial court’s order reinstating the judgment of the magistrate court. We have consolidated these two cases for the purposes of appeal.

Case No. Al 1A0985

1. In her sole enumeration of error, Jessup argues that the trial court erred in dismissing her renewed complaint on the grounds that she did not have standing to file a renewal action. We agree and reverse the judgment and remand the case to the superior court.

A case appealed from the magistrate court to the superior court proceeds de novo. Such appeal “brings up the whole record from the court below; and . . . [ejither party is entitled to be heard on the whole merits of the case.” The superior court is to “try the issue anew and pass original judgments on the questions involved as if there had been no previous trial.” The filing of such an appeal has the same effect as if the case had been commenced originally in the superior court.

The controlling case on this issue is Long v. Greenwood Homes. In Long, Long filed an appeal with the superior court after a judgment was entered against her in magistrate court. Long then voluntarily dismissed the appeal. Thereafter, Long filed a timely renewal action in the superior court. Greenwood Homes filed a motion for summary judgment, contending that the dismissal effectively reinstated the judgment of the magistrate court. The trial court denied the motion for summary judgment, holding that the voluntary dismissal eliminated both the magistrate court judgment and the case pending in superior court. In that case, the Supreme Court of Georgia held that Long was “authorized to dismiss the superior court litigation and the result of her action was the dismissal of her case, not the dismissal of her appeal.” Thus, Long was entitled to file a renewal action before the superior court.

Decided August 26, 2011.

Nelson, Gillis & Dixon, James F. Nelson, Jr., Samuel R. Dixon, for appellant.

Smith & Cannon, Chester L. Cannon, Jr., for appellees.

In this case, unlike in Long, Jessup was not the original appellant to the superior court. The trial court’s order holds that Long is inapplicable to the case sub judice because of this factual difference and held that only the original appellant to the superior court had the right to dismiss the case pending in superior court. We disagree. Long holds that “OCGA § 9-11-41 (a), the voluntary dismissal statute, can be exercised in the de novo appeal filed in superior court since it is contained in the Civil Practice Act, which is applicable to the de novo appeal filed in state or superior court following the entry of a judgment in magistrate court.” As stated above, the filing of an appeal from the magistrate court has the same effect as if the case had been commenced originally in the superior court. Thus, Jessup was the plaintiff and the Rays were the defendants and counter-claimants in the superior court action. Both were entitled under the voluntary dismissal statute to dismiss their claims “at any time before the first witness is sworn” and to timely re-file under the renewal statute. Accordingly, we reverse the trial court’s order granting the Rays’ motion to dismiss and remand this case to the trial court.

Case No. A11A0986

2. In their sole enumeration of error, the Rays argue that the trial court erred in reinstating the judgment of the magistrate court in its order granting their motion to dismiss. In light of our decision in Division 1, we need not address this enumeration of error.

Judgment reversed and case remanded.

Smith, P. J., and Dillard, J., concur.

       See OCGA § 9-2-61 (a).

       The Rays elected not to file a cross-appeal. Therefore, we consolidate these two independent appeals for the purpose of this opinion. See OCGA § 5-6-38 (a) (“[T]he appellee may institute cross appeal. . . ; and in no case shall the appellee be required to institute an independent appeal on his own right, although the appellee may at his option file an independent appeal.”).

        Eason v. Marine Terminals Corp., 309 Ga. App. 669 (710 SE2d 867) (2011).

       OCGA §§ 5-3-29; 15-10-41 (b) (1).

       OCGA § 5-3-29.

       (Citation and punctuation omitted.) Scott v. Aaron, 221 Ga. App. 254 (471 SE2d 55) (1996). See also Long v. Greenwood Homes, 285 Ga. 560, 562 (679 SE2d 712) (2009) (On appeal to the superior court from a judgment of the magistrate court, “[t]he magistrate court’s judgment has no bearing on the merits of the main claim”) (citation and punctuation omitted).

        Long, supra.

       Id.

       Id. at 561.

       (Citation omitted.) Id. at 562.

       OCGA § 9-11-41 (a) (1) (A).

       OCGA § 9-2-61 (a). See Cale v. Jones, 176 Ga. App. 865, 867 (1) (338 SE2d 68) (1985) (holding counterclaims are subject to renewal).


author: Smith, Presiding Judge.

text:
    A11A1084.
    JORDAN v. THE STATE.
    (716 SE2d 579)
   Smith, Presiding Judge.

Charles Michael Jordan and a co-defendant were found guilty of robbery. Jordan’s motion for new trial was denied, and he appeals, asserting only the general grounds. We find no error and affirm.

In two enumerations of error, Jordan raises the sufficiency of the evidence. In his abbreviated argument, he contends that he was merely an innocent passenger in his co-defendant’s car and did not participate in the robbery. But he and his co-defendant were present at the victim’s place of business where she obtained a large amount of cash before leaving for the day. When the victim noticed a white car with two occupants following her, she was concerned because one of her co-workers had been beaten and robbed the day before by two men in a white car. She pulled into a gas station to let them pass by and waited for five minutes before she went into the station to pay for her gas. But when she came out, the white car with two occupants was parked right beside her. The passenger, whom she identified as Jordan, spoke to her and “asked me where my man was.” The victim told the police that she believed “the passenger was distracting her while the driver came at her.” The driver then approached her, offered her a business card, and then punched her in the face and took her purse.

The police arrived within a few minutes, and after a short chase, the driver abandoned the car but Jordan was apprehended. He was “bent over in the car,” and when a police officer looked into the vehicle Jordan was “picking up something in the floorboard.” The officer testified that it “looked like he was picking up money but I’m not a hundred percent sure what he picked up.” Two $100 bills and a matchbook from the victim’s place of business were found on the floorboard where Jordan was sitting. The victim’s purse was found on the shoulder of the road approximately 50 yards from where the car stopped. When the police brought Jordan back to the station, he spontaneously exclaimed to the victim, “You know I ain’t the one that robbed you. I’m just the one that talked to you.”

We find the evidence sufficient to uphold the convictions under the standard established in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Accord Scott v. State, 280 Ga. 466, 466-467 (1) (629 SE2d 211) (2006) (“Criminal intent maybe inferred from conduct before, during, and after a crime in question. [Cit.]”); Russell v. State, 236 Ga. App. 645, 646-647 (1) (512 SE2d 913) (1999) (that appellant entered store first and spoke to victim, sat quietly while co-defendant robbed victim, and left with co-defendant in his truck “provided ample evidence to authorize the jury to find him guilty of armed robbery as a party to the crime”).

Decided August 26, 2011.

Gerald P Privin, Amanda R. Flora, for appellant.

Tommy K. Floyd, District Attorney, Blair D. Mahaffey, Assistant District Attorney, for appellee.

Judgment affirmed.

Mikell and Dillard, JJ., concur.


author: MILLER, Presiding Judge.

text:
    A11A1205.
    CRUZ v. THE STATE.
    (716 SE2d 590)
   MILLER, Presiding Judge.

Sabino E Cruz appeals, pro se, from the trial court’s order denying his motion for an out-of-time appeal. He contends that he was entitled to an out-of-time appeal since his counsel and the trial court failed to advise him of his right to directly appeal from the denial of his motion to withdraw his guilty plea. For the reasons that follow, we reverse and remand this case for a hearing on the issue.

The record shows that on September 23, 2002, Cruz entered a nonnegotiated guilty plea to charges of aggravated child molestation, child molestation, and burglary. Following the entry of his sentence and judgment of conviction, Cruz timely filed a pro se motion to withdraw his guilty plea. Cruz’s former trial counsel was replaced with the appointment of new counsel. On December 30, 2003, following a hearing, the trial court denied the motion to withdraw the guilty plea. Almost seven years later, on November 3, 2010, Cruz filed a pro se motion for an out-of-time appeal, contending that his right to a timely direct appeal from the denial of his motion to withdraw the guilty plea had been frustrated by the failure of both his counsel and the trial court to advise him of his appeal rights. The trial court denied Cruz’s motion, ruling that an out-of-time appeal was not the appropriate means to challenge the plea.

The trial court’s ruling was erroneous. Cruz was not asserting a right to appeal directly from a conviction entered on a guilty plea. Rather, he sought an out-of-time appeal from the denial of his motion to withdraw his guilty plea. In Georgia, “[a] defendant has a right to appeal directly the denial of his timely motion to withdraw a guilty plea.” (Citations, punctuation and emphasis omitted.) Carter v. Johnson, 278 Ga. 202, 205 (2) (599 SE2d 170) (2004). Where that right has been frustrated either through counsel s negligence or through the trial court’s failure to inform the defendant of his right to appeal, the remedy is an out-of-time appeal. See id. See also Cobb v. State, 284 Ga. 74 (663 SE2d 262) (2008); Murray v. State, 265 Ga. App. 119, 120 (592 SE2d 898) (2004). “The disposition of a motion for out-of-time appeal hinges on a determination of who bore the ultimate responsibility for the failure to file a timely appeal.” (Citations and punctuation omitted.) Leonard v. State, 293 Ga. App. 808, 809 (1) (668 SE2d 321) (2008). Here, Cruz pertinently contends that both his counsel and the trial court were responsible for the failure to file a timely appeal from the order denying the motion to withdraw his guilty plea, since they did not advise him of his appeal rights. If Cruz’s contentions are found to have merit, then he would be entitled to have his motion for an out-of-time appeal granted. See Carter, supra, 278 Ga. at 205 (2); Murray, supra, 265 Ga. App. at 120. The trial court abused its discretion by failing to make a factual inquiry into the matter. See Thorpe v. State, 253 Ga. App. 263, 264 (558 SE2d 804) (2002). “We therefore reverse the denial of [Cruz’s] motion for an out-of-time appeal and remand for a hearing on this issue.” Id.

Decided August 26, 2011.

Sabino E Cruz, pro se.

Daniel J. Porter, District Attorney, Stephen A. Fern, Assistant District Attorney, for appellee.

Judgment reversed and case remanded with direction.

Ellington, C. J., and Doyle, J., concur.

       See Caine v. State, 266 Ga. 421, 421-422 (467 SE2d 570) (1996) (recognizing the distinction between a direct appeal from a guilty plea and a direct appeal from a motion to withdraw a guilty plea).

       To the extent that the State’s arguments pertain to the effective assistance of Cruz’s former trial counsel during the plea proceedings, such arguments miss the mark. Rather, the relevant inquiry concerns whether counsel or the trial court informed Cruz of his right to file a timely direct appeal of the order denying his motion to withdraw his guilty plea in the post-plea proceedings. Moreover, contrary to the State’s arguments, Cruz properly raised and preserved this claim in his motion for an out-of-time appeal filed in the trial court.


author: Mikell, Judge.

text:
    A11A1406.
    FIELDS v. THE STATE.
    (716 SE2d 587)
   Mikell, Judge.

Following a jury trial, Martin Warrick Fields was found guilty of aggravated assault, false imprisonment, robbery and kidnapping. The trial court merged the count of false imprisonment into the kidnapping count. Fields was sentenced on the kidnapping count to a life term, with the first 25 years to be served in custody. On the aggravated assault and robbery counts, Fields was sentenced to a term of 20 years, to run concurrent with the kidnapping sentence. Fields appeals from the denial of his motion for new trial, arguing that he received ineffective assistance of counsel and that the trial court erred in allowing a photo of the crime scene into evidence. We discern no error and affirm.

Viewed in the light most favorable to the jury’s verdict, the record reflects that on March 4, 2008, while Fields and his roommate Michael Egarton were visiting Craig Rogers at his apartment, Rogers saw Fields come out of the bedroom, carrying a metal baseball bat and wearing blue latex gloves. Fields then approached Egarton and “whacked [him] across the head with a bat.” Egarton believed that Fields was “fixing to try to finish me off.” The bat cut the back of Egarton’s head, and he bled profusely. Egarton managed to escape his attacker, and was able to call the police from a gas station about a quarter of a mile away.

After Egarton’s escape, Rogers witnessed Fields leave the apartment holding the bat and wearing the blue latex gloves and an army fatigue jacket. A short time later, Elisabeth Avilma was unloading her car with her newborn baby and four-year-old daughter nearby when she noticed Fields, whom she recognized. Fields grabbed Avilma’s four-year-old and ran, holding her like a football. Avilma gave chase, but then lost sight of Fields and her daughter. A few minutes later, a neighbor returned the child to her mother. Upon returning to her car, Avilma saw a metal bat in the back seat of her car.

Fields next encountered 14-year-old Snyder Moise leaving another building in the apartment complex. Fields grabbed the boy, and took Moise’s jacket and ran upstairs.

A law enforcement officer arrived at the scene in response to Egarton’s phone call and found Fields in an apartment, holding the stolen jacket. There were blue latex gloves crumpled on the floor outside the apartment. The officer then went to Rogers’s apartment, where the assault had occurred. Although Rogers had already begun to clean the apartment, blood was still visible on the carpet, walls, blinds, door, and balcony.

1. Fields argues that his trial counsel provided ineffective assistance because he elicited testimony concerning Fields’s prior arrest for armed robbery. We find no reversible error.

In evaluating a claim of ineffective assistance of counsel, we apply the two-prong test set forth in Strickland v. Washington, To prevail on a claim of ineffective assistance, Fields “must show that counsel’s performance was deficient and that, but for that deficient performance, there is a reasonable probability that the outcome of his trial would have been different.” In evaluating the first prong of this test, “[a] strong presumption exists that counsel’s conduct falls within the broad range of professional conduct.” In examining a claim of ineffective assistance, this Court “need not address both components of the inquiry if the defendant makes an insufficient showing on one.” On appellate review of the trial court’s ruling, “[w]e accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.”

Fields argues that his trial counsel’s cross-examination of Egar-ton concerning his and Fields’s earlier arrest for armed robbery constituted ineffective assistance of counsel. Egarton testified during direct examination that he and Fields had lived together for only a few weeks prior to the incident. On cross-examination, Fields’s trial counsel elicited testimony from Egarton that he had previously lived with Fields after both of them had been arrested for an armed robbery that was never prosecuted. Immediately prior to trial, the trial judge ruled that the state could not introduce this evidence and defense counsel remarked that he had not yet decided whether or not to introduce it during trial.

At the new trial hearing, Fields did not call his trial counsel to testify. “In evaluating an attorney’s performance, there is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Where trial counsel does not testify at the motion for a new trial hearing, it is extremely difficult to overcome this presumption.” Further, “a decision on whether or not to place a defendant’s character in issue is a matter of trial tactics and does not equate with ineffective assistance of counsel.” Because counsel did not testify at the new trial hearing, “[w]e have no insight . . . into counsel’s decision-making on this matter, and [Fields] has not overcome the presumption that counsel’s decision fell within a wide range of reasonable, professional conduct.” Under these circumstances, we decline to find that trial counsel’s introduction of Fields’s prior arrest constituted ineffective assistance of counsel.

2. Fields contends that the trial court erred in allowing into evidence photographs of the scene of the aggravated assault because the officer testified that the scene had been altered before it was photographed. We disagree.

Here, the evidence shows that the officer took the photographs of the crime scene within an hour and a half after Fields struck Egarton with a bat. When the officer arrived at Rogers’s apartment, Rogers and another person were in the process of cleaning up the bloodstains created by the incident. The officers stopped the men from cleaning and questioned them about which areas had already been cleaned. The officers then photographed the crime scene. The officers’ testimony introduced at trial and the photographs showed both where Egarton bled on the surfaces of the apartment and the areas which Rogers was still in the process of cleaning.

The admission or exclusion of photographs “is a matter within the sound discretion of the trial court and will not be controlled unless manifestly abused.” Georgia has adopted “a liberal policy in the admission of photographic evidence.” A photograph offered to show a crime scene as it existed when police officers arrived is generally admissible. When, as in the case at bar, any variations between the scene of the crime and the scene as later photographed are immaterial, and witnesses have testified about any changes that occurred, “we will not ordinarily reverse a trial judge’s decision to admit the photograph.”

In this case, the size and exact location of the bloodstains were not a material issue, and thus we find that the trial court did not abuse its discretion in allowing these photographs to be admitted into evidence.

Decided August 26, 2011.

Michael J. Ivan, for appellant.

Patrick H. Head, District Attorney, Bruce D. Hornbuckle, Amelia G. Pray, Assistant District Attorneys, for appellee.

Judgment affirmed.

Smith, P. J., and Dillard, J., concur.

        Al-Amin v. State, 278 Ga. 74 (1) (597 SE2d 332) (2004).

       466 U. S. 668, 687 (III) (104 SC 2052, 80 LE2d 674) (1984).

       (Footnote omitted.) Jackson v. State, 282 Ga. 494, 497 (2) (651 SE2d 702) (2007).

       (Citation omitted.) Browning v. State, 283 Ga. 528, 529 (2) (661 SE2d 552) (2008). Accord Robinson v. State, 277 Ga. 75, 76 (586 SE2d 313) (2003).

       (Citation and punctuation omitted.) Watkins v. State, 289 Ga. 359, 362 (3) (711 SE2d 655) (2011).

       (Citation and punctuation omitted.) Robinson, supra.

       (Punctuation and footnote omitted.) Davis v. State, 280 Ga. 442, 443 (2) (629 SE2d 238) (2006). Accord Dyer v. State, 278 Ga. 656, 660 (7) (604 SE2d 756) (2004) (by failing to ask his attorney to explain his failure to object to state witnesses’s testimony, defendant failed to demonstrate deficient performance).

       (Citation and punctuation omitted.) Polk v. State, 225 Ga. App. 257, 257-258 (1) (a) (483 SE2d 687) (1997).

       (Citation and punctuation omitted.) Arellano v. State, 289 Ga. App. 148, 153 (5) (656 SE2d 264) (2008).

       See Greenwood v. State, 309 Ga. App. 893, 895 (1) (a) (714 SE2d 602) (2011).

       (Citation omitted.) Robinson v. State, 168 Ga. App. 569, 572 (3) (309 SE2d 845) (1983). Accord Chaney v. State, 258 Ga. App. 551, 553 (5) (a) (574 SE2d 634) (2002) (crime scene photographs).

       (Citation omitted.) Cheeks v. State, 203 Ga. App. 47, 50 (6) (416 SE2d 336) (1992).

        Banta v. State, 282 Ga. 392, 396 (3) (651 SE2d 21) (2007).

       (Citation omitted.) Chaney, supra.

       See id.


text:
    A11A1430.
    BAKER v. THE STATE.
    (716 SE2d 580)
   Mikell, Judge.

After a bench trial, Ronald Baker was convicted of theft by taking and sentenced to five years, to serve twelve months in confinement and the remainder on probation, with credit for time served. The trial court denied Baker’s motion for new trial, and Baker appeals, raising the general grounds. We affirm.

On appeal from a bench trial resulting in a criminal conviction, we view all evidence in the light most favorable to the trial court’s judgment of conviction, and the defendant no longer enjoys the presumption of innocence. We do not re-weigh testimony, determine witness credibility, or address assertions of conflicting evidence; our role is to determine whether the evidence presented is sufficient for a rational trier of fact to find guilt beyond a reasonable doubt.

Properly viewed, the record shows that Baker was an employee of Mizuno USA, Inc., a manufacturer and distributor of sporting goods. He worked in the “raw materials cage,” a fenced-in area where components were stored prior to final assembly into sporting goods. Patricia Douglas, Mizuno’s director of human resources and general affairs, testified that Mizuno had experienced thefts from its raw materials cage; and that Mizuno had retained Norrad, a corporate security company, to conduct an investigation. Norrad assigned its employee Eustace Xavier to pose as a Mizuno employee and investigate the thefts.

Xavier testified that he got to know Baker and that Baker arranged to take golf club heads from the Mizuno facility, sell them, and split the proceeds with Xavier. On the afternoon of September 13, 2002, Baker told Xavier that he had taken some items and hidden them, intending to pick them up later. That evening, Baker and Xavier returned to the Mizuno plant, where Baker retrieved two boxes from a trash bin, loaded them into the car, and took them back to Baker’s apartment. Baker opened one of the boxes, which contained 50 “Blue Rage” golf club heads. Baker then divided the club heads equally, keeping 25 for himself and giving 25 to Xavier as Xavier’s “share of the deal” for giving him a ride. Baker did not open the other box. He explained that it contained meted heads “for someone else.” Xavier left Baker’s apartment with the 25 club heads which were his “share” and turned them over to Philip Gallacher, Xavier’s Norrad supervisor. Baker was later arrested and charged with theft by taking. Baker testified at trial, denying that the events testified to by Xavier ever took place and asserting that he had never stolen anything from Mizuno.

Baker challenges the sufficiency of the evidence supporting his conviction for theft by taking. “A person commits the offense of theft by taking when he unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated.” The evidence adduced at trial and summarized above, viewed in the light most favorable to the verdict, amply supports Baker’s conviction for theft by taking.

1. Baker contends that Mizuno consented to the taking at issue here, because Gallacher informed Douglas that a theft was planned, and Douglas allowed the plan to proceed in order to further the investigation. This argument is wholly without merit. The fact that Mizuno retained Norrad to investigate the thefts shows that Mizuno did not consent to them. Douglas testified that Baker was never given permission to abscond with this merchandise. Baker’s conviction shows that the trial court, as finder of fact, gave credit to this testimony.

2. Baker also argues that there was insufficient evidence showing the value of the items taken. Although value is not an element of the offense of theft by taking, it is relevant for purposes of sentencing, as a felony sentence may be imposed “ [i]f the property which was the subject of the theft exceeded $500.00 in value.”

Decided August 26, 2011.

John R. Burdges, for appellant.

Daniel J. Porter, District Attorney, Justin D. Unger, James V. Branch, Assistant District Attorneys, for appellee.

Douglas testified that these particular club heads were kept in Mizuno’s raw materials cage and were not available for sale in their unassembled state. She further testified that the club heads were the property of Mizuno; that the box bore labels indicating that they had been delivered to Mizuno from Japan; that the club heads cost $203 each wholesale; and that their value was $203 each. The club heads were in brand-new condition, still wrapped in plastic, and were awaiting attachment to shafts and assembly into completed golf clubs.

“The cost of the property to the owner, although relevant on the question of value, is not the ultimate determinant.” However, “cost price, if coupled with other evidence, may be admitted as an element upon which an opinion may be formed as to the item’s value.” And “[a]n owner does not have to be an expert to testify as to the value of his property [or that property under his control], provided he has experience or familiarity with such values.” In the case at bar, Douglas testified regarding her general knowledge of Mizuno’s business and the manufacturing process utilized in producing golf clubs at Mizuno’s facility. She also testified that she was responsible for assessing and investigating the losses of raw materials, including Blue Rage golf club heads, that Mizuno had incurred. Through this testimony, Douglas established that she had “knowledge, experience and familiarity with the value of the property.” The evidence was sufficient for the court to determine that the value of the items stolen at the time and place of the theft exceeded $500.

Judgment affirmed.

Smith, P. J., and Dillard, J., concur.

       (Citation and punctuation omitted.) Mays v. State, 306 Ga. App. 507 (703 SE2d 21) (2010).

       OCGA § 16-8-2.

       See Lewis v. State, 287 Ga. App. 379, 381 (651 SE2d 494) (2007) (whether defendant made expenditures with victim’s consent was question for jury).

       OCGA § 16-8-12 (a) (1).

       (Punctuation and footnote omitted.) Partin v. State, 302 Ga. App. 589, 590 (692 SE2d 32) (2010).

       (Punctuation and footnote omitted.) Id.

        Williams v. State, 246 Ga. App. 347, 352 (2) (540 SE2d 305) (2000).

       (Citations omitted.) Pippin v. State, 166 Ga. App. 658, 659 (305 SE2d 408) (1983).

       See Partin, supra at 591.


author: Ellington, Chief Judge.

text:
    A11A1515.
    WILLINGHAM LOAN & REALTY COMPANY et al. v. WASHINGTON.
    (716 SE2d 585)
   Ellington, Chief Judge.

Alisa Washington brought suit in the Civil Court of Bibb County against Willingham Loan & Realty Company (“Willingham”), James A. Smith, and Briarwood Apartments, LLC (“Briarwood”) (collectively, “the owners”), seeking to recover damages for injuries she sustained when she fell on a set of stairs at the Briarwood apartment complex. Contending there is no evidence that their alleged negligence caused Washington to fall, and, therefore, that they are entitled to judgment as a matter of law on her claim, the owners appeal from an order by the trial court denying their motion for summary judgment, pursuant to this Court’s grant of their application for an interlocutory appeal. For the reasons explained below, we reverse.

In order to prevail on a motion for summary judgment under OCGA § 9-11-56, the moving party must

show that there exists no genuine issue of material fact, and that the undisputed facts, viewed in the light most favorable to the nonmoving party, demand judgment as a matter of law. Moreover, on appeal from the denial or grant of summary judgment the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Citation and punctuation omitted.) The Landings Assn. v. Williams, 309 Ga. App. 321, 322 (711 SE2d 294) (2011).

Viewed in a light most favorable to Washington as the nonmo-vant, the facts show that on December 17, 2005, Washington, while holding on to handrails with both hands, fell down the metal exterior staircase near her apartment at the Briarwood apartment complex. A witness who saw Washington fall deposed that, at the time she fell, he noticed an accumulation of ice on the stairs. However, this witness testified that he did not know whether the condition of the stairs caused Washington to fall. Washington deposed that she had previously complained to building management about the stairs that she described as “scary and dangerous” because of broken and loose steps. But when asked “whether or not [the condition of the stairs] caused [her] to fall,” Washington only replied, “It’s possible.” During her deposition, Washington was repeatedly unable to state what caused her to fall, saying at one point, “I don’t know what caused me to fall.”

Decided August 26, 2011.

John D. Carey, for appellants.

John W. Dozier, for appellee.

Under Georgia law, an owner or occupier of land is liable to its invitees “for injuries caused by its failure to exercise ordinary care in keeping the premises and approaches safe.” OCGA § 51-3-1. It is axiomatic that “causation is always an essential element in slip or trip and fall cases[, and, therefore,] [w]here the plaintiff does not know of a cause or cannot prove the cause, there can be no recovery because an essential element of negligence cannot be proven.” (Citation and punctuation omitted.) Pinckney v. Covington Athletic Club &c., 288 Ga. App. 891, 893 (655 SE2d 650) (2007). Additionally, a motion for summary judgment cannot be denied “based on speculation or conjecture.” (Citation omitted.) Cowart v. Widener, 287 Ga. 622, 633 (3) (c) (697 SE2d 779) (2010). Finally, “[a] mere possibility of . . . causation is not enough; and when the matter remains one of pure speculation or conjecture” defendants are entitled to summary judgment. (Citation and punctuation omitted.) Greyhound Lines, Inc. v. Williams, 290 Ga. App. 450, 451 (1) (659 SE2d 867) (2008).

In this case, Washington’s deposition testimony shows that she does not know what caused her to fall. Further, Washington adduced no other evidence from which a jury could infer that the owners’ alleged negligence in failing to maintain the stairs caused her to fall. Because the evidence of record raises a mere possibility that a defect in the stairs caused Washington’s fall, the trial court erred in denying the owners’ motion for summary judgment. See Shadburn v. Whitlow, 243 Ga. App. 555, 566 (533 SE2d 765) (2000); Avery v. Cleveland Avenue Motel, Inc., 239 Ga. App. 644, 645 (1) (521 SE2d 668) (1999).

Judgment reversed.

Miller, P. J., and Doyle, J., concur.

       In her complaint, Washington alleged that the owners were negligent in failing to safely maintain the stairs.


text:
    A11A0968.
    COILE v. THE STATE.
    (716 SE2d 527)
   Ellington, Chief Judge.

After James Coile pled guilty to felony theft by taking, the Superior Court of Athens-Clarke County conducted a restitution hearing and ordered Coile to pay the victim of his theft $1,000 in restitution for damage Coile inflicted on the victim’s building in order to accomplish the theft. Coile appeals from the restitution order, contending that the trial court erred in ordering him to pay restitution when there was insufficient evidence that he damaged the building during the theft. Finding no error, we affirm.

The record shows that, on March 28, 2008, police officers arrested Coile as he was in the process of stealing copper wiring and aluminum siding that had been removed from a storage trailer on the victim’s property. During the restitution hearing, the victim testified that it would take $1,000 in labor costs and incidental supplies to re-attach the aluminum siding onto the trailer so that it was weatherproof again. The victim also testified that it would take several thousand dollars more to repair the copper wiring and restore the building to its pre-theft condition. In his defense, Coile testified that, while he was, in fact, attempting to steal the copper wiring and aluminum siding when he was arrested, he was not the person who stripped the materials off the building, causing the damage at issue. Instead, he claimed that someone else had already stripped the materials from the trailer and that the materials were on the ground when he happened to pass by and, knowing that he could sell the materials, he decided to take them.

On appeal, Coile argues that there was insufficient evidence presented to establish that he was the person who caused the damage to the trailer and, therefore, the trial court erred in ordering him to pay restitution for the damage. Because the amount of restitution to be paid is based upon the victim’s civil damages, the sufficiency of evidence to support an order of restitution is measured by the civil standard of preponderance of the evidence. Lawrenz v. State, 194 Ga. App. 724, 725 (1) (391 SE2d 703) (1990). “It is well established that review of evidence by this Court is limited to questions of sufficiency.” (Citation and punctuation omitted.) Tindol v. State, 284 Ga. App. 45, 48 (4) (643 SE2d 329) (2007). Accordingly, determinations regarding the credibility of the witnesses and the weight to be accorded conflicting evidence are for the trial court, and this Court will not interfere with such determinations as long as there is any evidence to support them. DuCom v. State, 288 Ga. App. 555, 563 (5) (654 SE2d 670) (2007) (Because the defendant failed to show that the amount of restitution ordered by the trial court was unsupported by any evidence, the order was affirmed.).

Decided August 4, 2011

Reconsideration denied August 29, 2011.

Benjamin A. Pearlman, for appellant.

Kenneth W. Mauldin, District Attorney, Antonio E. Veal, Assistant District Attorney, for appellee.

Given the evidence in this case, the trial court did not err in concluding that Code’s claim that someone else had caused the damage to the trailer before he arrived lacked credibility and in finding, instead, that Code had stripped the materials from the trailer while in the process of committing the theft. See McCart v. State, 289 Ga. App. 830, 833 (2) (658 SE2d 465) (2008) (Although the defendant claimed that he did not cause all of the damage sustained by the victim’s truck during his theft of the truck, there was some evidence to support a contrary finding. Therefore, the trial court was authorized to find that the defendant caused all of the damage and in ordering him to pay restitution accordingly.).

Judgment affirmed.

Miller, P. J., and Doyle, J., concur.

       During the restitution hearing, Coile’s counsel waived any objections to the victim’s testimony of the cost of repairing the building and to the State’s evidence regarding Coile’s ability to pay restitution. See OCGA § 17-14-10 (factors to be considered in ordering restitution).


author: Doyle, Judge.

text:
    A11A1355.
    BIRCHBY v. CARBOY.
    (716 SE2d 592)
   Doyle, Judge.

Jaimie Carboy filed a petition for a temporary family violence protective order against George Birchby pursuant to the Family Violence Act. The trial court granted the petition and entered a 12-month family violence protective order. Following the denial of his motion for new trial, Birchby filed an application for discretionary appeal, which this Court granted. On appeal, Birchby argues that the trial court erred by (1) entering a final judgment that did not conform to its verbal ruling; (2) failing to make specific written findings of fact and conclusions of law in the final order; (3) authorizing Carboy’s attorney to decide the child support amount set forth in the order; (4) concluding that it had no authority to withhold the transmission of the final order to the Georgia Protective Order Registry; (5) failing to consider the parties’ pending divorce action; (6) denying Birchby’s request to reopen the evidence; and (7) denying Birchby’s motion for new trial. We affirm, for reasons that follow.

Carboy filed a petition for a temporary family violence protective order pursuant to OCGA § 19-13-1 et seq., alleging that Birchby, her husband, kicked her in the ribs, pushed her, and intimidated her with his gun. Carboy sought temporary custody of their child, exclusive use and possession of the family residence, and child support, as well as a protective order enjoining Birchby from having contact with her or their child.

At the conclusion of a three-day hearing, the trial court gave a lengthy verbal ruling, stating therein that it had “serious concerns about the credibility of both parties based upon the evidence,” and noted that Carboy “may have been the instigator.” Nevertheless, the trial court concluded that “this is a family violence petition[,] and [Carboy] has proven ... by a preponderance of the evidence that an incident occurred that constitutes family violence under the law. . . . [T]he action of kicking [Carboy] in the chest constituted an act of family violence.” After describing the terms of the order, the trial court directed counsel for Carboy to prepare the order, noting that it would consider any objections or response thereto from counsel for Birchby. The subsequent “Family Violence Twelve Month Protective Order” ordered that Birchby “shall not contact, communicate, or come about [Carboy’s] residence or place of employment, or come within 500 yards of her except as may be necessary with regard to visitation or discussions regarding the[ir] child”; awarded Carboy exclusive use of the residence; awarded temporary child support; and prohibited Birchby from possessing a firearm. Birchby subsequently filed motions to reopen the evidence, for reconsideration, and for a new trial. Following a hearing, the trial court denied Birchby’s motions, and this appeal followed.

1. At the outset, we note that Birchby’s brief fails to comply with Court of Appeals Rule 25 (c) (1), which requires that “[t]he sequence of arguments in the briefs shall follow the order of the enumeration of errors, and shall be numbered accordingly.” Birchby enumerates seven separate errors, but he groups enumerations 1, 2, and 3 in one argument, 4 and 5 in another, and 6 and 7 in a third argument.

As we have held, Rule 25 (c) (1) is more than a mere formality. It is a requirement which this Court imposes to ensure that all enumerations of error are addressed and to facilitate review of each enumeration. By failing to comply with the rule, [Birchby] has hindered the Court’s review of his assertions and has risked the possibility that certain enumerations will not be addressed. Accordingly, to the extent that we are able to discern which of the enumerations are supported in the brief by citation of authority or argument, we will address those enumerations.

Birchby also failed to comply with Court of Appeals Rule 25 (a) (1), which requires “a statement of the method by which each enumeration of error was preserved for consideration.”

2. Next, “we must address our jurisdiction to entertain this appeal.” The trial court entered the 12-month protective order on July 27, 2010, and it therefore expired on July 27, 2011.

Thus, the issues raised arguably are moot, and mootness is a mandatory ground for dismissal. However, if an issue is capable of repetition yet evades review, we do not view that issue as moot. This is true for those matters in which there is intrinsically insufficient time to obtain judicial relief for a claim common to an existing class of sufferers.

This case involves a 12-month protective order. “Given the time constraints of appellate courts,” orders in effect for 12 months often expire before an appellate decision is issued. “Accordingly, we must address whether the various issues are common to an existing class, yet tend to evade review.”

We conclude that Birchby’s enumerations regarding the trial court’s failure to reopen the evidence, its failure to consider the pending divorce action, and its denial of his motion for new trial are evidentiary issues, “and the expiration of the protective order renders them moot.” Birchby’s remaining enumerations are not moot because “they involve issues that both affect an existing class of sufferers and tend to evade review,” and we will therefore address them.

3. Birchby argues that the trial court erred by entering a judgment — prepared by Carboy’s counsel — that does not conform to the court’s verdict. Specifically, Birchby contends that the judgment “fails miserably to incorporate the [trial c]ourt’s findings of fact and conclusions of law delivered orally from the bench.” This argument is without merit.

A trial court’s oral pronouncement is not a judgment until it is put in writing and entered as the judgment. Although a trial court’s oral pronouncements on the record may provide insight on the intent of its subsequent written judgment, discrepancies between the two pronouncements must be resolved in favor of the written judgment. Thus, the trial court’s oral statements on the record were not binding.

4. Birchby contends that the trial court erred by failing to include specific conclusions of law and findings of fact in its written order. OCGA § 19-13-4, which sets forth the requirements for the contents of a family violence protective order, does not require that such orders include written findings of fact and conclusions of law. Moreover, our Supreme Court has held that a trial court is “not required to enter findings of fact and conclusions of law in awarding temporary alimony, child support and child custody.”

5. Birchby argues that the trial court erred by authorizing Carboy’s attorney to decide the amount of the child support award. The record belies this assertion.

At the hearing, the trial court stated that it intended to “award child support calculated based upon [Birchby’s] income as shown on his financial affidavit and imputing income to [Carboy] at minimum wage, whatever that will be, with no deviations for one child.” The court then directed Carboy’s attorney to prepare a proposed order and directed him to send a copy to counsel for Birchby so that he could assert any objections he had thereto, which the trial court would then consider.

The order in this case indicates on its face that it is a standardized form order promulgated pursuant to OCGA § 19-13-53, and it directs the trial court to initial in the space provided to order a specific provision, and it states that “[t]he court should delete or otherwise make inoperative any provision in the standardized form which is not supported by the evidence in the case and in order to comply with the court’s application of the law and facts to an individual case.” The order contains the trial court’s initials, as well as handwritten language and deletions apparently made by the trial court. Finally, the child support worksheet, presumably prepared by Carboy’s counsel, contains the same child support figure awarded in the order. Thus, Birchby’s arguments that he was not afforded an opportunity to provide input as to the amount of the child support and that the trial court abdicated its responsibility to decide the amount of the award to counsel for Carboy are without merit and unsupported by the record. Under these circumstances, we find no basis for reversal.

Even in full adversarial proceedings in the courts of the land, the practice persists of allowing a prevailing party’s counsel to aid the court, as a matter of expediency, in drafting findings of fact and conclusions of law to support a decision already reached and announced. While tolerated, such a practice is not favored. However, the Supreme Court of the United States has held that even in cases where the judge adopts the findings of an advocate verbatim, such findings, though not the product of the workings of the judge’s mind, are formally his; they are not to be rejected out-of-hand, and they will stand if supported by evidence. It is the judgment rendered and its legal effect, and not the reasons and arguments in support thereof expressed by the judge in his order or judgment, which constitutes the adjudication.

6. Finally, Birchby argues that the trial court erred by concluding that it had no authority to direct the clerk of court to withhold transmission of the family violence protective order to the Georgia Protective Order Registry. We disagree.

At the hearing, the trial court verbally stated that

I’m concerned that a family violence order will stigmatize the respondent beyond that which is necessary and appropriate under the circumstances[,] given the short window of time and the incident that occurred. ... I do not believe it is necessary or appropriate to transmit the order to the registry. If that’s required by operation of law I can’t stop it, but if I have the discretion it ain’t going to happen in this case because I don’t think it’s appropriate under the circumstances of this case.

Ultimately concluding that transmission to the Registry was required, the trial court handwrote on the order: “The Court has expressed the concern that transmission of this order to the Registry is neither necessary nor appropriate, but under current law, the Clerk must transmit the order nonetheless.” The trial court is correct.

OCGA § 19-13-52 (a) provides:

The Georgia Protective Order Registry shall be created to serve as a centralized data base for state-wide protective orders issued pursuant to Code Sections 16-5-90 through 16-5-94 and this chapter. The registry is intended to enhance victim safety by providing law enforcement officers, prosecuting attorneys, and the courts access to protective orders issued by the courts of this state and foreign courts 24 hours of the day and seven days of the week. Access to the registry is intended to aid law enforcement officers, prosecuting attorneys, and the courts in the enforcement of protective orders and the protection to victims of stalking and family violence.

Pursuant to OCGA § 19-13-53 (b), “[t]he clerk of the issuing court shall electronically transmit a copy of the protective order or modification thereof to the registry as expeditiously as possible but no later than by the end of the next business day after the order is filed with the clerk of court.” Because “shall is a word of command, it can hardly be argued that the [transmission is] optional.”

Birchby also argues that the trial court erred by concluding that it did not have discretion to convert Carboy’s family violence petition into a civil restraining order in the parties’ divorce complaint, which did not require transmission to the Georgia Protective Order Registry. This argument is without merit.

Decided August 29, 2011.

McDonald, Cody & Cook, Douglas W. McDonald, Sr., for appellant.

English, Tunkle & Smith, Richard D. Tunkle, for appellee.

Carboy elected to file a petition for a temporary protective order against Birchby pursuant to the Family Violence Act; she never withdrew her petition, nor did she consent to the trial court converting the family violence protective order to a civil restraining order. Following the hearing, the trial court concluded that Carboy proved by a preponderance of the evidence that Birchby committed “an act that constitutes family violence under the law.” Given the mandatory language of the Act, it is clear that the legislature intended that all family violence protective orders be transmitted to the Registry, without exception. To permit a trial court to convert, without the consent of the petitioner, a petition for a family violence protective order to a civil restraining order that does not require transmission to the Registry would circumvent the clear intention of the legislature, a result that we will not countenance.

Judgment affirmed.

Ellington, C. J., and Miller, P. J., concur.

       OCGA § 19-13-1 et seq.

       “[Olrders entered under the Family Violence Act must come by discretionary application and that jurisdiction lies in the Court of Appeals of Georgia.” Schmidt v. Schmidt, 270 Ga. 461 (510 SE2d 810) (1999).

       See OCGA §§ 19-13-52; 19-13-53.

       The full transcript was 624 pages. Birchby elected to include in the appellate record only that portion of the transcript depicting the trial court’s ruling.

       (Punctuation omitted.) Barnett v. Fullard, 306 Ga. App. 148,149-150 (1) (701 SE2d 608) (2010).

        Baca v. Baca, 256 Ga. App. 514, 515 (1) (568 SE2d 746) (2002).

       (Punctuation and footnotes omitted.) Id.

       Id.

       Id. at 516 (1).

       Id.

       Id.

       (Punctuation omitted.) Blair v. Bishop, 290 Ga. App. 721, 725 (2) (660 SE2d 35) (2008).

        Wilbanks v. Wilbanks, 238 Ga. 660, 661 (1) (234 SE2d 915) (1977). See also Baca, 256 Ga. App. at 518 (2).

       The record does not indicate whether Birchby objected to Carboy’s proposed order.

       (Citation and punctuation omitted.) North Fulton Community Hosp. v. State Health Planning &c., 168 Ga. App. 801, 810 (3) (310 SE2d 764) (1983), citing United States v. El Paso Natural Gas Co., 376 U. S. 651, 656 (84 SC 1044, 12 LE2d 12) (1964).

       Following the hearing, the trial court sent a letter to counsel concluding that it did not have the authority to direct the clerk to withhold transmission of the protective order to the Registry, but inviting Birchby’s counsel to submit any authority on the issue.

       (Emphasis supplied.)

        McClure v. Davidson, 258 Ga. 706, 710 (3) (373 SE2d 617) (1988).

       See Ga. Public Svc. Comm., v. ALLTEL Ga. Communications Corp., 227 Ga. App. 382, 387 (2) (489 SE2d 350) (1997) (“We are not prone to condone the intentional or inadvertent but flagrant circumvention of the clear legislative purpose of protective statutes.”) (punctuation omitted).


text:
    A11A1131.
    HICKMAN v. THE STATE.
    (716 SE2d 597)
   Ellington, Chief Judge.

Following a bench trial, the Superior Court of Catoosa County found Michael Hickman guilty beyond a reasonable doubt of committing aggravated assault with a deadly weapon, OCGA § 16-5-21 (a) (2), and attempting to commit hijacking of a motor vehicle, OCGA §§ 16-4-1; 16-5-44.1 (b). Hickman appeals from the denial of his motion for new trial, contending that the trial court erred in denying his motion to dismiss the indictment or, in the alternative, grant a mistrial and that the evidence was insufficient to prove that he had the requisite intent to hijack a motor vehicle. Finding no error, we affirm.

On appeal from a criminal conviction that follows a bench trial, the defendant

no longer enjoys a presumption of innocence, and we view the evidence in a light favorable to the trial court’s finding of guilt, giving due regard to the trial court’s opportunity to judge witness credibility. This Court does not weigh the evidence or determine the credibility of witnesses. Rather, we determine only if there is enough evidence from which a rational trier of fact could have found the accused guilty beyond a reasonable doubt.

(Punctuation and footnote omitted.) Emory v. State, 301 Ga. App. 771, 773-774 (2) (688 SE2d 682) (2009). Viewed in this light, the trial transcript shows the following relevant facts.

At approximately 8:40 p.m. on December 3, 2009, a woman finished shopping at a Kmart store in Fort Oglethorpe and pushed a shopping cart carrying her purse and her purchases to her car, which was parked near the store’s garden center. As she was loading her purchases into the car’s back seat, she looked up and saw a man she did not recognize walking toward her. Sensing that she was in danger, the woman looked at the man and shook her head to signify “no”; the man responded by nodding his head “yes.” As the woman started yelling for help, the man grabbed her around the neck with his left arm and ordered her to get into her car. The woman (hereinafter, “the victim”) refused to comply. The attacker cursed at her, told her to be quiet, and threatened to “cut her” if she did not get inside the car. When she continued to refuse, he cut her throat with a knife he was holding in his left hand. The attacker then tried to push the victim into the driver’s seat of the car, but the victim’s face hit the back of the driver’s seat and she continued to struggle with the attacker. After the attacker cut the woman’s throat a second time, the victim told the attacker that he could have her purse, which was still in the shopping cart a short distance away, but he continued to assault her and to try to force her into her car. The victim then raised her arm, pushed the “panic” button on the remote lock to her car, and intentionally slumped to the ground to make it harder for the attacker to get her into her car. The attacker kept his arm around the victim’s neck while they scuffled on the ground, and he cut her throat a third time. Finally, in an effort to get the attacker to leave, the victim offered him her car keys, but he refused to take them.

At least one eyewitness to the attack ran to the victim’s car while the attacker had his arm around the victim’s throat and yelled at the attacker to stop and to release the victim. A store employee also saw the attack and ran into the store to alert the manager. In addition, the victim’s adult son, who was just leaving the store after shopping with his mother and his wife, heard the victim screaming, saw her being attacked, and ran to her car, where he ordered the attacker to stop and to release his mother. After the attacker told the victim’s son that it was “none [of] your business,” the son told the attacker that the victim was his “f — ing mom,” grabbed the attacker, lifted him off the victim, and punched him in the face. The son then let go of the attacker in order to assist his mother, and the attacker briefly threatened the son with his knife before he walked away. When the victim’s son realized that the attacker had cut the victim’s throat, however, he started running after the attacker while calling 911 on his cell phone. The attacker ran to the side of the store and tried to hide, but then he moved after realizing that the victim’s son could see him. Although the victim’s son then lost sight of the attacker, he showed a responding police officer where he believed the attacker had gone.

Within minutes, officers found Hickman hiding in the bushes on the side of a nearby embankment. Hickman had blood on his left hand, but had no apparent injuries. The victim’s son identified Hickman as his mother’s attacker while at the scene and again at trial. The victim and one of the eyewitnesses also identified Hickman as the attacker at trial.

Although the officers did not find a weapon in the parking lot or the grassy area where Hickman had been apprehended, early the next morning investigators found a pocket knife in the grassy area. The knife had blood on it, and DNA testing by the GBI crime laboratory confirmed that the DNA of the blood matched the DNA of the victim.

1. At the beginning of the bench trial, Hickman’s defense counsel told the court that, while Hickman was contesting some “crucial” issues, “[i]t is not contested that on the night in question Mr. Hickman and [the victim] had an encounter in the parking lot of the Kmart in Fort Oglethorpe. [And it] is not contested that in the course of that encounter between the two that . . . [the victim] was seriously injured.” He contended, however, that there was no evidence that, at the time of this “encounter,” Hickman had the requisite intent to hijack the victim’s car, and Hickman makes the same argument on appeal. According to Hickman, the victim’s admission that she offered her car keys to Hickman and that he refused to take them conclusively showed that he did not intend to “seize control” of her car.

The intention with which an act is done is peculiarly for the [factfinder]. It is often difficult to prove with direct evidence an individual’s intent as it existed at the time of the act for which they are being prosecuted. Therefore, it is often necessary to prove such intent through the use of circumstantial evidence. Intent, which is a mental attitude, is commonly detectible only inferentially, and the law accommodates this. A [factfinder] may infer that a person acted with criminal intent after considering the “words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.” OCGA § 16-2-6. In order to support a conviction, such circumstantial evidence does not have to exclude every possible hypothesis other than the defendant’s guilt, but only reasonable hypotheses. Whether a hypothesis is reasonable is a question for the [factfinder], and such finding will not be disturbed on appeal unless the guilty verdict is insupportable as a matter of law.

(Citations and punctuation omitted; emphasis in original.) Eberhart v. State, 241 Ga. App. 164, 165 (1) (526 SE2d 361) (1999).

Given the evidence presented, especially Hickman’s repeated use of a deadly weapon to attempt to force the victim to get inside the car, the trial court, as the factfinder, was authorized to conclude that Hickman rejected the car keys when the victim offered them simply because it was his intent to abscond with both the car and the victim. See Eberhart v. State, 241 Ga. App. at 165 (1). Accordingly, the evidence was sufficient to find Hickman guilty beyond a reasonable doubt of attempting to hijack a motor vehicle. Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979); Adams v. State, 276 Ga. App. 319, 319-321 (623 SE2d 525) (2005).

2. Hickman also argues that the trial court erred in denying his motion to dismiss the indictment or, in the alternative, grant a mistrial due to due process violations resulting from the State’s destruction of “potentially crucial video evidence of the incident.” The video evidence to which Hickman refers was a recording made by one of Kmart’s surveillance cameras on the night at issue. Hickman argues that, if the State had instructed the store’s manager to preserve or copy the recording, “the entire incident could have been viewed by the trial court to determine [his] culpability or lack thereof.”

In his appellate brief, however, Hickman concedes that recent Georgia precedent on the preservation of surveillance recordings is adverse to his arguments. Moreover, there is nothing in the record in this case that even suggests that the recording would have demonstrated Hickman’s lack of culpability for the crimes or would have otherwise had any apparent exculpatory value or that the State acted in bad faith in failing to preserve the recordings. See State v. Brawner, 297 Ga. App. 817, 818-819 (678 SE2d 503) (2009) (There was no evidence “that anything on the videotape was readily seen, understood, evident, or obvious or that it had any exculpatory value,” and, in fact, the evidence showed the contrary: “the images were distorted, small, and distant.” Further, police officers testified that they were unable to identify either the victim or the defendant from the tape. Under such circumstances, there was no evidence to support a finding that the videotape had any “apparent exculpatory value” before it was lost.) (punctuation and footnotes omitted). As shown above, not only was there overwhelming evidence in this case to show that Hickman committed the crimes for which he was convicted, but Hickman’s counsel specifically conceded at the beginning of the bench trial that Hickman was the attacker in this case and that, as a result of the attack, the victim was seriously injured. Consequently, Hickman has failed to demonstrate that the trial court erred in denying his motion to dismiss the indictment or grant a mistrial based upon the State’s failure to preserve the surveillance camera recording. State v. McNeil, 308 Ga. App. 633, 637-639 (708 SE2d 590) (2011); State v. Brawner, 297 Ga. App. at 818-819.

Decided August 30, 2011.

David J. Dunn, Jr., for appellant.

Herbert E. Franklin, Jr., District Attorney, for appellee.

Judgment affirmed.

Miller, P. J., and Doyle, J., concur.

       See OCGA § 16-5-44.1 (b) (“A person commits the offense of hijacking a motor vehicle when such person while in possession of a firearm or weapon obtains a motor vehicle from the person or presence of another by force and violence or intimidation or attempts or conspires to do so.”); see also OCGA § 16-4-1 (“A person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.”).

       The trial transcript shows that the victim and the store employee testified that it was fairly dark at the time of the attack (8:40 p.m. in December), and that the lighting in Kmart’s parking lot was very poor. It also shows that, shortly after the attack, police investigators met with Rmart’s manager and looked at the recording made by a surveillance camera that was pointed toward the general area where the victim’s car had been parked. According to the investigators, the black and white recording was out of focus and was completely dark except for the areas around some of the parking lot’s lights. The investigators testified that the recording was so dark that it did not show any people or cars in the parking lot. Consequently, the investigators did not ask the manager to retain the original or make a copy of it. Neither the State nor Hickman called Kmart’s manager as a witness at trial to testify regarding what he saw on the recording.

       See, e.g., State v. Brawner, 297 Ga. App. 817, 818-819 (678 SE2d 503) (2009) (“In dealing with the failure of the state to preserve evidence which might have exonerated the defendant, a court must determine both whether the evidence was material and whether the police acted in bad faith in failing to preserve the evidence. To be material, the evidence must have had an apparent exculpatory value before it was lost, and be of such a nature that the defendant cannot obtain comparable evidence by other reasonable means.” Further, “[t]he word ‘apparent’ means ‘readily seen; visible; readily understood or perceived; evident; obvious.’ ”) (punctuation and footnotes omitted); see also State v. McNeil, 308 Ga. App. 633, 637-638 (708 SE2d 590) (2011) (In order to rise to the level of constitutional materiality, “the exculpatory value of the evidence must be apparent before its loss or destruction, and the evidence must be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” Further, “the fact that evidence may be potentially useful in a defendant’s attempt at exoneration is insufficient to sustain a claim that the defendant has suffered an abridgment of due process of law due to the destruction or loss of the evidence.”) (punctuation and footnote omitted; emphasis in original).


text:
    A11A1606.
    In the Interest of E. C., a child.
    (716 SE2d 601)
   Ellington, Chief Judge.

The Juvenile Court of Lowndes County adjudicated E. C., age 15, delinquent for acts which, if committed by an adult, would have constituted theft by taking (motor vehicle), OCGA § 16-8-2. E. C. appeals, contending that the evidence was insufficient to support his adjudication and that the State failed to prove venue. We agree, and the State concedes, that the evidence adduced was insufficient to support the juvenile court’s judgment. Consequently, we reverse the adjudication of delinquency.

In considering a challenge to the sufficiency of the evidence supporting an adjudication of delinquency, we construe the evidence and every inference from the evidence 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.

(Punctuation and footnote omitted.) In the Interest of M. C. A., 263 Ga. App. 770 (589 SE2d 331) (2003).

So viewed, the record shows that, on February 6, 2011, a City of Valdosta police officer responded to a complaint of motor vehicle theft at 1646 Fresno Street. The officer spoke to E. C.’s sister, and the officer testified that she told him that E. C. and his twin brother had taken her car without her permission. When the officer arrived at the sister’s house, E. C. and his brother were present, having returned home from a trip to the store in their sister’s car. The brothers admitted to the officer that they took turns driving the car. However, there is no evidence in the record that the brothers admitted that they took the car without permission. The sister did not testify. There is no evidence in the record establishing that 1646 Fresno Street is in either Valdosta or in Lowndes County, and the juvenile court did not take judicial notice of any fact which could be construed as establishing venue.

1. E. C. contends that the State failed to prove the essential element of venue.

Venue is a jurisdictional fact that the prosecution must prove beyond a reasonable doubt. When there is insufficient evidence of venue, the verdict rendered is contrary to law and without sufficient evidence to support it. In order to take judicial notice of any fact, the trial court must first announce its intention to do so on the record, and afford the parties an opportunity to be heard regarding whether judicial notice should be taken.

(Citations and punctuation omitted.) In the Interest of J. A. L., 284 Ga. App. 220 (1) (644 SE2d 162) (2007).

Because there is no direct evidence establishing the county where the incident occurred and because the court did not announce its intention to take judicial notice, we must conclude that the State failed to prove venue beyond a reasonable doubt, and the evidence is insufficient to support the adjudication. In the Interest of A. C., 263 Ga. App. 44, 45 (587 SE2d 210) (2003) (adjudication of delinquency reversed where State presented no evidence of venue and the trial court did not take judicial notice that incident occurred within the county alleged). The adjudication, therefore, must be reversed.

Because the State may retry E. C. without violating the Double Jeopardy Clause if there exists otherwise sufficient evidence at trial to support his delinquency adjudication for the criminal acts alleged, In the Interest of D. D., 287 Ga. App. 512, 515 (2) (b) (651 SE2d 817) (2007), we must also determine whether the State carried its burden of proving the essential elements of theft by taking.

2. E. C. also contends that the State failed to prove his guilt of theft by taking beyond a reasonable doubt. OCGA § 16-8-2 provides, in relevant part, that a person commits the offense of theft by taking “when he unlawfully takes . . . any property of another with the intention of depriving him of the property[.]” That the taking was “unlawful,” that is, without the owner’s consent, is an essential element of the crime. Id. In this case, the police officer testified that E. C.’s sister told him that she owned the car and that she did not give her permission for E. C. and his brother to drive it. These hearsay statements were offered to prove that the property of another was unlawfully taken. As we have held, “hearsay evidence has no probative value even when it is admitted without objection.” (Footnote omitted.) In the Interest of C. D. E., 248 Ga. App. 756, 764 (2) (546 SE2d 837) (2001). Moreover, even if the officer’s hearsay testimony concerning the sister’s statements had been admitted to explain his conduct, the statements could not be used as original evidence establishing E. C.’s delinquency. See Germany v. State, 235 Ga. 836, 840 (221 SE2d 817) (1976) (statements offered to explain the conduct of an investigating officer are hearsay and may not be used as original evidence of the defendant’s guilt). Consequently, the evidence adduced was insufficient to support E. C.’s adjudication of delinquency based on theft by taking beyond a reasonable doubt, and the juvenile court’s judgment must be reversed.

Decided August 30, 2011.

Samantha M. Edwards, for appellant.

J. David Miller, District Attorney, Laura A. Wood, Jessica W. Clark, Assistant District Attorneys, for appellee.

Judgment reversed.

Miller, P. J., and Doyle, J., concur.

       OCGA § 24-3-1 defines hearsay as evidence that “does not derive its value solely from the credit of the witness but rests mainly on the veracity and competency of other persons.” See also Lott v. State, 303 Ga. App. 775, 785 (4) (694 SE2d 698) (2010). Hearsay “generally relates to an out-of-court statement made by someone other than the witness.” (Footnote omitted.) Blunt v. State, 275 Ga. App. 409, 411 (1) (c) (620 SE2d 572) (2005). Thus, “[b]y definition, evidence is hearsay when a witness at trial offers evidence of what someone else said or wrote, outside of court, and the proponent’s use of the evidence essentially asks the jury to assume that the out-of-court declarant was not lying or mistaken when the statement was made.” (Citation and punctuation omitted.) Diaz v. State, 275 Ga. App. 557, 559 (621 SE2d 543) (2005).


text:
    A09A2347.
    JOHNSON v. THE STATE.
    (716 SE2d 603)
   Mikell, Judge.

The Supreme Court granted certiorari in this case and, in Johnson v. State, reversed the judgment of this Court, after concluding that Johnson was denied effective assistance of counsel. Therefore, we vacate our earlier opinion and adopt the judgment of the Supreme Court as our own.

Judgment reversed.

Ellington, C. J., and McFadden, J., concur.

Decided August 31, 2011.

Michael E. Garner, for appellant.

Julia Fessenden Slater, District Attorney, Michele C. Ivey, Michael E. Craig, Assistant District Attorneys, for appellee.

       289 Ga. 532 (712 SE2d 811) (2011).

        Johnson v. State, 301 Ga. App. 423 (687 SE2d 663) (2009).


author: SMITH, Presiding Judge.

text:
    A10A0076.
    SLAUGHTER v. THE STATE.
    (716 SE2d 628)
    Decided September 1, 2011.
    Fredrick B. Slaughter, pro se.

      David McDade, District Attorney, James A. Dooley, Assistant District Attorney, for appellee.
   SMITH, Presiding Judge.

In State v. Slaughter, 289 Ga. 344 (711 SE2d 651) (2011), the Supreme Court reversed the judgment of this court in Slaughter v. State, 304 Ga. App. 209 (695 SE2d 743) (2010), and overruled Morrison v. State, 272 Ga. App. 34 (7) (611 SE2d 720) (2005). We therefore vacate our earlier opinion and adopt the judgment of the Supreme Court as the opinion of this court.

Judgment affirmed.

Mikell and Adams, JJ., concur.


author: PHIPPS, Presiding Judge.

text:
    A11A0964.
    INTERCHANGE DRIVE, LLC et al. v. NUSLOCH et al.
    (716 SE2d 603)
   PHIPPS, Presiding Judge.

This case involves a dispute between subdivision lot owners and the purchaser of certain subdivision property. The lot owners sought access to common areas and a recreation area within the subdivision, and the purchaser denied such access, taking the position that it was entitled to use that property for its own purposes. The trial court ruled in favor of the lot owners, allowing them rights to use, access and enjoy the subdivision’s common areas and recreation area as set forth on the subdivision plat and in the subdivision’s restrictive covenants. The purchaser, Interchange Drive, LLC (“Interchange”), appeals the trial court’s ruling in favor of the lot owners. Because the subdivision property at issue remained subject to the subdivision’s restrictive covenants when Interchange purchased it, we affirm.

Interchange purchased the subdivision property at issue in 2009. To resolve the dispute in this case, however, we must review a series of real estate transactions between numerous entities, beginning in 2005.

On July 7, 2005, Genesis Real Estate Group, LLC (“Genesis”) purchased two parcels of land from Erling Speer by warranty deed. That same day, Genesis executed a deed to secure debt and assignment of rents (the “security deed”), conveying those parcels to Wachovia Bank, National Association (“Wachovia”), as security for a loan. The security deed was recorded on July 13, 2005.

Genesis was the developer of Habersham Plantation subdivision. On December 13, 2005, Genesis recorded a plat for the subdivision. The plat showed subdivided lots, streets, areas designated “common area” and an “Active Recreation Area” (the “ARA”), located next to the Grove River. The plat stated that all common areas were to be maintained by the Habersham Plantation Homeowners Association (the “Association”) and that future uses of the common areas and the ARA must be approved by the Association. For the common areas, such uses could include a swimming pool, pool house, tennis courts, and walking trails; for the ARA, such uses could include a river clubhouse with kitchen facilities and dock.

On December 15, 2005, Genesis, as declarant, recorded the Declaration of Covenants, Conditions and Restrictions for Haber-sham Plantation (the “Habersham Covenants”). The land initially subjected to the Habersham Covenants included Lots 1-11 and 21-55 of the subdivision, and Genesis reserved the right to subject additional subdivision property to the Habersham Covenants by recording a supplemental declaration describing the property being subjected. The Habersham Covenants defined such a “Supplemental Declaration” as “[a]n instrument recorded pursuant to Article IX which subjects additional property to this Declaration, and/or imposes additional restrictions and obligations on the land described in this instrument.”

The Habersham Covenants defined a “Common Area” as “[a] 11 real and personal property, including easements, which the Association owns, leases or otherwise holds possessory or use rights in for the common use and enjoyment of the Owners.” The Habersham Covenants held the Association “responsible for management, operation, and control of the Common Area.” Also within the Habersham Covenants, Genesis, as declarant, granted each owner a “nonexclusive right and easement of use, access, and enjoyment in and to the Common Area.”

On October 1, 2006, Genesis quitclaimed its interests in the Habersham Plantation property and assigned its rights as declarant under the Habersham Covenants to Genesis At Habersham, LLC. The quitclaim deed and assignment were recorded on November 13, 2006.

On December 31, 2007, Genesis At Habersham recorded a Declaration of Covenants, Conditions, and Restrictions for Common Areas of Habersham Plantation Subdivision to clarify that the ARA was a common area, as defined in the Habersham Covenants, and to expressly prohibit the development of the ARA and the adjoining salt marsh and the use of such property for any purpose other than as a common area, as defined in the Habersham Covenants.

Genesis sold lots in the Habersham Plantation subdivision to individual purchasers. To convey title to the lots, Genesis obtained quitclaim deeds from Wachovia and issued warranty deeds to the purchasers. The quitclaim deeds conveyed the property, together with all easements and appurtenances, by lot number and specifically referred to the recorded Habersham Plantation subdivision plat for the property description. The warranty deeds also conveyed the property by lot number and specifically referred to the recorded Habersham Plantation subdivision plat for the property description.

Genesis defaulted on its loan with Wachovia, and Wachovia began foreclosure proceedings, as evidenced by a deed under power of sale, which was recorded on August 21, 2008. The deed recited that Wachovia had conducted a foreclosure sale of the subdivision property conveyed by the security deed, less and except the lots previously sold, and that Wachovia was the highest bidder at the sale. Genesis, acting by and through Wachovia, conveyed the subdivision property to Wachovia, specifically excluding the lots previously sold, and referring to the subdivision plat as a property description for those lots. The conveyance was expressly made subject to the Habersham Covenants. On August 20, 2008, Genesis At Habersham conveyed its rights as declarant under the Habersham Covenants to Wachovia.

On March 19, 2009, Wachovia conveyed its Habersham Plantation property, less the lots previously sold, to the appellant, Interchange, by limited warranty deed. The conveyance was expressly made subject to any matters to which the deed under power of sale were subject. In the limited warranty deed, Wachovia also quit-claimed all rights as declarant under the Habersham Covenants, as supplemented, amended and modified.

Thereafter, Interchange took the position that it had no obligation to allow the lot owners access to any recreational facilities, and that it intended to use the ARA for its own purposes.

The appellees, Jerry Nusloch and other lot owners in the Habersham Plantation subdivision, sued Interchange and the Association, seeking (among other remedies) a declaratory judgment that they hold easements and rights to use, access and enjoy the common areas and the ARA; that Interchange and the Association are precluded from developing the ARA and adjoining salt marsh or using that property for any purpose other than as a common area; and that the Association is required to own and maintain the common areas and the ARA.

Interchange and the Association sought summary judgment, arguing that any easement rights the lot owners had obtained with respect to the common areas and the ARA were junior to Wachovia’s senior lien and were extinguished when Wachovia foreclosed. The lot owners responded and also moved for summary judgment, arguing that Wachovia subjected the property it acquired within Habersham Plantation to the subdivision plat and the Habersham Covenants when it released lots from its security deed by reference to the plat. The lot owners further argued that Wachovia subjected the property it acquired to the Habersham Covenants in the deed under power of sale and the subsequent limited warranty deed to Interchange.

The trial court determined that Wachovia’s reference in the quitclaim deeds to the recorded plat to describe the property being released constituted an acknowledgment of the easements shown on the plat, thereby incorporating and ratifying the plat. The court further determined that Wachovia had subrogated its rights to the property at issue in the deed under power of sale it took from Genesis and the limited warranty deed it gave to Interchange because both deeds were made subject to the Habersham Covenants. On appeal, Interchange takes issue with both of those determinations.

Interchange appeals the grant of the lot owners’ motion for summary judgment and the denial of its motion for summary judgment. We review a grant or denial of summary judgment de novo and view the evidence and all reasonable inferences therefrom in the light most favorable to the nonmovant.

The Habersham Covenants created an easement in favor of the lot owners for their use, access, and enjoyment in and to the subdivision’s common areas and the ARA, which was made a part of the common area prior to foreclosure. Interchange contends that the ARA was not properly made subject to the Habersham Covenants because Genesis did not file a “Supplemental Declaration” that referenced Article IX of the Habersham Covenants and because title to the ARA was never conveyed to the Association. Although not titled a “Supplemental Declaration,” the declaration regarding the common areas plainly stated that the ARA and the adjoining salt marsh were to be included as a “Common Area,” as defined in the Habersham Covenants, and restricted the use of those areas. Further, the Habersham Covenants did not require that the ARA be conveyed to the Association before it could become part of the “Common Area.” The express intent of the declaration regarding the common areas was to make the ARA part of the common area and to restrict its use and development. Any failure by Genesis to follow the exact wording used to define a supplemental declaration did not render the Habersham Covenants inapplicable to the ARA.

When Wachovia received subdivision property via the deed under power of sale, that property was subject to the Habersham Covenants. Although Interchange contends that Wachovia never intended to subject the subdivision property to the Habersham Covenants, “[t]he written instrument is considered the true, complete understanding between the parties.” And the language of the deed under power of sale expressly stated that the conveyance was subject to the Habersham Covenants. Moreover, “[w]hen a grantee accepts a deed, he is bound by the covenants contained therein even though the deed has not been signed by him.”

Relying on Springmont Homeowners Assn. v. Barber, Interchange contends that because Wachovia took title under its security deed before the restrictions expressed in the Habersham Covenants were imposed, Wachovia’s interest in the subdivision property was not subject to the Habersham Covenants. Although Springmont also involved the sale of subdivision property by a bank following a foreclosure and the applicability of a subdivision’s declaration of covenants and restrictions to a purchaser after foreclosure, the case is distinguishable for several reasons. In Springmont, the specifics of the deed to the bank following foreclosure are not mentioned and there was no indication that the declaration applied to that deed or to the subsequent deed to the purchaser from the bank. Further, in that case, the bank specifically stated in a properly recorded writing that its interest in the property was not subject to the declaration.

In contrast, Wachovia accepted a deed that expressly made its interest in the subdivision property subject to the Habersham Covenants. By accepting a deed with covenants and restrictions, the grantee consents to be bound by such covenants and restrictions.

Wachovia’s subsequent conveyance of the subdivision property to Interchange was also made subject to the Habersham Covenants because a grantee in a deed takes no greater title than that held by the grantor. Interchange argues that the limited warranty deed did not constitute an agreement between it and Wachovia to subject the subdivision property to the Habersham Covenants. Assuming that were true, as grantor of the limited warranty deed, Wachovia could convey only that which it owned, and its interest in the property was subject to the Habersham Covenants. Consequently, the property interest created by the limited warranty deed was subject to the Habersham Covenants.

Because the Habersham Covenants remained applicable to the Habersham Plantation subdivision property at issue here, the trial court correctly determined that the lot owners had a right and easement of use, access and enjoyment to the subdivision’s common areas and the ARA.

Decided September 1, 2011

McCorkle & Johnson, Phillip R. McCorkle, David H. Johnson, Mathew M. McCoy, Thomas M. Gore, for appellant.

Weiner, Shearouse, Weitz, Greenberg & Shawe, William G. Glass, for appellee.

Judgment affirmed.

Andrews and McFadden, JJ., concur.

       The lot owners also sought summary judgment under an agreement with the owner of adjacent property regarding a proposed boat ramp easement, but the trial court denied relief on that issue and that denial has not been appealed.

       In the motion, Interchange acknowledged that the Association must maintain areas over which it had responsibility. According to Interchange, those responsibilities were limited to maintaining the private streets, which were owned by the Association, landscaping on certain lots abutting the streets and maintaining certain ponds, streams and/or wetlands. The trial court made no ruling regarding the Association’s duties, and the Association has not appealed the trial court’s order.

        Baxter v. Fairfield Financial Svcs., 307 Ga. App. 286, 287 (704 SE2d 423) (2010).

       See generally Hendley v. Overstreet, 253 Ga. 136, 137 (318 SE2d 54) (1984) (enforcing declaration of restrictive covenants that dedicated certain lots for use as a park or recreation area for the benefit of subdivision residents).

       See generally McLean v. Turtle Cove Property Assn., 222 Ga. App. 709, 710-711 (1) (475 SE2d 718) (1996) (developer’s failure to file supplemental declarations to include new lots added to subdivision, as required by original declaration, did not preclude covenants and restrictions from applying to new lots where purchaser had knowledge of covenants at time of purchase).

        Hornsby v. Holt, 257 Ga. 341, 343 (1) (359 SE2d 646) (1987) (citation omitted).

       See, e.g., Hayes v. Lakeside Village Owners Assn., 282 Ga. App. 866, 867-869 (1) (640 SE2d 373) (2006) (lot owners bound by covenant where they took title, subject to restrictive covenants, from grantee of developer); Bowman v. Walnut Mountain Property Owners Assn., 251 Ga. App. 91, 92 (553 SE2d 389) (2001) (physical precedent only) (corporation subject to covenants where it received title to subdivision lots by recorded deed that made lots “subject to” subdivision covenants and restrictions). “There is danger in reciting that the deed is ‘subject’ to certain things; if the title was not encumbered with them, you have made it so.” Daniel F. Hinkel, Pindar’s Georgia Real Estate Law and Procedure, § 26-141 (6th ed. 2004).

       OCGA § 44-5-39; Bowman, supra at 95 (1) (d); Hill v. Moye, 221 Ga. App. 411, 413 (2) (471 SE2d 910) (1996).

       221 Ga. App. 713 (472 SE2d 695) (1996).

       See id.

        See Rhodes v. Anchor Rode Condo. Homeowner’s Assn., 270 Ga. 139, 140 (1) (508 SE2d 648) (1998) (property subject to security deed remains so unless grantee releases property by conveyance or contractually subordinates its rights).

        Bowman, supra at 95-96 (1) (d); Bryan v. MBC Partners, L.P., 246 Ga. App. 549, 551 (3) (541 SE2d 124) (2000).

        Hornsby, supra at 342 (1).

       See id. at 342-343 (1).