text:
    A10A1899.
    DON JOHNSON BONDING COMPANY, INC. v. STATE OF GEORGIA.
    (709 SE2d 50)
   Phipps, Presiding Judge.

Don Johnson Bonding Company, Inc. appeals from an order forfeiting its appearance bond. Specifically, Don Johnson Bonding contends that the trial court was required by OCGA § 17-6-71 (a) to serve notice of an execution hearing within ten days of the principal’s initial failure to appear in court, and that the court’s failure to strictly adhere to the ten-day notice requirement relieved Don Johnson Bonding of liability on the appearance bond. We agree and reverse.

OCGA § 17-6-71 (a) provides, in relevant part:

The judge shall, at the end of the court day, upon the failure of the principal to appear, forfeit the bond and order an execution hearing not sooner than 120 days but not later than 150 days after such failure to appear. Notice of the execution hearing shall be served by the clerk of the court in which the bond forfeiture occurred within ten days of such failure to appear. . . . Such ten-day notice shall be adhered to strictly. If notice of the execution hearing is not served as specified in this subsection, the surety shall be relieved of liability on the appearance bond.

The following facts are not in dispute. Don Johnson Bonding bound itself as surety on an appearance bond for its principal. The principal failed to appear for trial on February 23, 2009, and a bench warrant was issued on that date. The court did not immediately forfeit the bond and order an execution hearing as provided in OCGA § 17-6-71 (a). Instead, the court placed the case on a trial calendar for March 23, 2009. When the principal failed to appear in March, the court issued another bench warrant and, without forfeiting the bond and ordering an execution hearing, placed the case on an April 28, 2009 trial calendar. The principal failed to appear in April, and the court issued another bench warrant and set another trial date for May 26, 2009. This process (non-appearance/bench warrant/trial reset) was repeated in June 2009, August 2009, and September 2009. When the principal failed to appear for trial on October 26, 2009, the state filed a motion to forfeit bond. An execution hearing was set for March 25, 2010 and notice of the hearing was sent to Don Johnson Bonding on October 27, 2009. On March 25, 2010, following the hearing, the court entered a judgment of forfeiture against Don Johnson Bonding.

As shown above, when an appearance bond is forfeited for the failure of the principal to appear, OCGA § 17-6-71 (a) requires an execution hearing to be set and the surety to be served with notice of the hearing within ten days of the failure to appear. The last two sentences of OCGA § 17-6-71 (a), providing that such “ten-day notice shall be adhered to strictly,” and that “[i]f notice of the execution hearing is not served as specified in this subsection, the surety shall be relieved of liability on the appearance bond,” were added to the statute in 2009 and became effective May 5, 2009.

[T]he interpretation of a statute is a question of law, which is reviewed de novo on appeal.. . . Moreover, in all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly. . . . And to determine the legislative intent of a statute, we begin with the literal text; where the literal text of a statute is plain and does not lead to absurd or impracticable consequences, we apply the statute as written without further inquiry. The language of a statute is given its most natural and obvious import, without resorting to forced or subtle interpretations to either expand or limit the statute’s operation.

Don Johnson Bonding contends that the court was required to forfeit the bond and order an execution hearing when the principal first failed to appear, which it states was March 23, 2009. Assuming arguendo that was the date on which the principal first failed to appear, that date precedes the effective date of the amendment to the statute and, under the previous version of the statute, strict compli-anee with the provisions of OCGA § 17-6-71 (a) was not required.

Decided March 30, 2011.

Matthew A. Tucker, for appellant.

Fredric D. Bright, District Attorney, Reagan W. Goodrich, Assistant District Attorney, for appellee.

However, strict compliance with the statute was required at the time the principal failed to appear on May 26, 2009. The clear meaning of the statute as amended effective May 5, 2009, is that upon a failure to send notice of the execution hearing within ten days of the failure of the principal to appear, the surety is released and discharged of any further obligation to ensure the appearance of the principal and of any further liability on the bond. If the legislature had meant only to relieve the surety of its liability for a particular failure to appear rather than its “liability on the appearance bond” generally, it could have so provided. The 2009 amendment works a complete discharge of a surety from its obligations and liabilities under an appearance bond whenever there is a failure to give timely notice of a forfeiture for the failure of the principal to appear, rather than a mere avoidance of a particular liability for a particular failure to appear. Under the circumstances presented in this case, the court erred in granting the state’s motion for bond forfeiture.

Judgment reversed.

Miller, P. J., and McFadden, J., concur.

       Notably, Don Johnson Bonding states that the principal first failed to appear as scheduled on March 23, 2009.

       See Ga. L. 2009, p. 688, § 2.

       See OCGA § 17-6-71 (a) (showing effective date of May 5, 2009).

        Morrell v. State, 297 Ga. App. 592 (677 SE2d 771) (2009) (citations and punctuation omitted).

       See, e.g., Troup Bonding Co. v. State of Ga., 292 Ga. App. 5, 6-7 (663 SE2d 734) (2008) (decided prior to 2009 amendment; triggering dates for applicable statutory notice and hearing provisions were not limited to calculation from date of principal’s initial time of required appearance and failure to appear; statute allowed initiation of notice and hearing procedures after any time of required appearance and failure to appear); Griffin v. State of Ga., 194 Ga. App. 624, 625 (2) (391 SE2d 675) (1990) (same; noting, “had the legislature intended that the statutory triggering dates . . . commence only from the initial date of required court appearance and failure to appear, this easily could have been expressed in the statute”).

        See Northeast Atlanta Bonding v. State of Ga., 308 Ga. App. 573, 575 (1) (707 SE2d 921) (2011).

       Id.

       Id.

       See A. A. Professional Bail v. Perdue, 306 Ga. App. 72, 73 (1) (701 SE2d 542) (2010) (judgment of forfeiture reversed where surety was served with notice of execution hearing twenty-one days after principal’s failure to appear in July 2009, given requirement of strict compliance with ten-day notice provision in OCGA § 17-6-71 (a) as amended effective May 2009).


source: Caselaw Access Project

author: PHIPPS, Presiding Judge.

license: Public Domain

text:
    A10A2020.
    In the Interest of T. D. et al., children.
    (709 SE2d 883)
   PHIPPS, Presiding Judge.

The mother of T. D., E. C., T. C., and A. D. appeals from the juvenile court’s orders finding the children deprived, extending temporary custody with the Department of Family and Children Services (DFCS), and denying the mother’s motions for return of custody. For the reasons that follow, we reverse the judgments as to T. D., E. C., and T. C., and vacate the judgment and remand the case with direction as to A. D.

On appeal from a juvenile court’s order finding deprivation or extending temporary custody of a child with DFCS, we review the evidence in the light most favorable to the juvenile court’s judgment to determine whether any rational trier of fact could have found by clear and convincing evidence that the child was deprived.

Viewed in the light most favorable to the juvenile court’s findings, the record shows that on December 10, 2008, the mother filed a police report alleging that her husband (the father of E. C. and T. C. and the stepfather of T. D. and A. D.) had slapped her and hit her in the face. At the time, T. C. and A. D. were already in the custody of DFCS based on findings of neglect (specifically, the parents’ failure to provide adequate housing and for the children’s medical needs, and the father’s incarceration); T. D. and E. C. were not in DFCS’s custody, as the mother had placed them with relatives pursuant to temporary letters of guardianship.

In February 2009 (nunc pro tunc to January 22, 2009), the juvenile court issued an order in A. D.’s deprivation case prohibiting the mother and her husband (hereafter, the father) from having any contact with each other, and prohibiting the father from having any contact with A. D. or anyone in the mother’s family, until the father proved he had completed an approved course in domestic violence and counseling. The court continued temporary custody of A. D. with DFCS based on what the court termed “unresolved domestic violence issues” and A. D.’s need to complete residential treatment that the mother was unable to provide for mental, emotional and behavioral problems.

In another February 2009 order (nunc pro tunc to January 22, 2009), the court ordered the return of T. C. to the mother’s custody based on findings that the mother had essentially completed her case plan requirements but for “resolving her domestic violence issues.” The court noted that the father had been arrested on or about December 17, 2008, released on December 23, 2008 and re-arrested on January 9, 2009, and that he remained incarcerated on a charge of probation violation stemming from the incident of family violence on December 10, 2008.

In May 2009, T. D., E. C., and T. C. came into the emergency care of DFCS based on allegations that the mother had “failed to protect [the children] from exposure to domestic violence” between the parents. No specific incidents were cited in the shelter care order. The juvenile court found that the children needed protection because the mother had reestablished contact with the father upon his release from jail and allowed him to have contact with the children despite the no-contact order; the father had not completed the required course work or counseling.

Deprivation petitions were filed as to these three children in May 2009, and again as to A. D. in August 2009. (A. D. had been in DFCS’s temporary custody since 2007.) Regarding all four children, the petitions were based on unspecified allegations of exposure to domestic violence between the parents. As to A. D., the petition additionally alleged that A. D. required residential treatment for unspecified mental, emotional and behavioral health problems that the mother was unable to provide, and that the mother was unable to provide proper parental discipline, care and control of A. D.

In August 2009 (nunc pro tunc to July 9, 2009), the court entered orders finding T. D., E. C., and T. C. deprived and awarding temporary custody to DFCS based on the mother’s failure to obtain stable employment and adequate housing, and her failure to protect the children from domestic violence. The court noted that the father had been incarcerated on charges related to “issues of domestic violence,” but did not cite to any specific incidents or charges.

In May 2009 and November 2009, DFCS developed reunification case plans as to all four children requiring the mother to, among other things, not have contact with the father without a therapist’s approval; attend domestic violence counseling; obtain and maintain a source of income and safe, stable housing; complete parenting classes; and pay child support. The court approved the plans.

In an August 2009 judicial review order pertaining to A. D., the court stated, inter alia, that temporary custody would be continued with DFCS because, along with the unresolved domestic violence issues, A. D. needed “extensive services” and “intensive supervision” that the mother was unable to provide, though it did not specify what his needs were or why the mother was unable to meet those needs.

In March 2010, DFCS filed a motion to extend its custody of T. D., E. C., and T. C. for one year and for judicial review of its permanency plan (concurrently for reunification with the parent and nonreunification and adoption). The same month, the mother filed motions for the court to return custody of all four children. An evidentiary hearing was held in April 2010.

On May 12, 2010 (nunc pro tunc to April 22, 2010), the juvenile court entered orders finding that T. D., E. C., and T. C. continued to be deprived, granting DFCS’s motions to extend custody as to those three children, finding that returning A. D. to the mother’s home would be contrary to his welfare, and denying the mother’s motions for return of custody as to all four children. The court found that the mother had complied with the case plan for reunification by completing parenting classes, maintaining housing and employment, and completing a domestic violence and conflict resolution course. However, the court found that the mother had failed to pay child support, “failed to show her understanding of her domestic violence issues,” and was “not taking realistic steps to address prevention of future occurrences.” The court cited testimony from a therapist that the mother had “a history of domestic violence relationships” and tended to minimize her domestic violence issues. The court stated further that the mother had not developed a safety plan for future occurrences of domestic violence until the day before the hearing, and opined that the code word (“love”) that the mother had selected to communicate to the children possible impending violence so they would contact law enforcement was problematic. The court noted that the father was a convicted felon with “a history of domestic violence” against the mother (though the court did not elaborate) and that in April 2010 witnesses saw the father with the mother at a yard sale and speaking to two of the children in a park during the children’s scheduled visitation with the mother; the court also noted that the mother had been found in contempt of court for having had contact with the father and allowing the children to have contact with him. In the court’s opinion, the mother had “gone through the motions of attending domestic violence courses and completing her case plan,” but she “fail[ed] to incorporate what she . . . learned from her counseling and course work.” The court concluded that the mother had not sufficiently complied with the case plan to permit reunification with T. D., E. C. and T. C. at that time. Regarding A. D., the court stated that returning him to the home would be contrary to his welfare because of domestic violence issues, that A. D.’s placement in a residential treatment program at the time was “appropriate for [his] needs,” and that, therefore, custody with DFCS would continue.

1. In several related assertions of error, the mother contends that the evidence was insufficient to find that the children continued to be deprived and that custody should therefore be extended with DFCS.

A deprived child is defined by OCGA § 15-11-2 (8) (A), in pertinent part, as a child who is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health or morals. And deprivation sufficient to authorize a parent’s temporary loss of custody of a child must have resulted from unfitness on the part of the parent, that is, either intentional or unintentional misconduct resulting in the abuse or neglect of the child or by what is tantamount to physical or mental incapability to care for the child. The petition must allege present deprivation, not past deprivation or potential future deprivation.

Where, as here, the children were in DFCS’s custody, the correct inquiry for the juvenile court was whether the children would be deprived if returned to the parent as of the date of the hearing. An extension of custody with DFCS must be necessary to accomplish the purposes of the order extended.

In this case, the evidence was not sufficient to permit a rational trier of fact to find that the children, if returned to their mother as of the date of the hearing, would be without proper parental care or control necessary for their physical, mental or emotional health, and thus would be deprived. The mother had completed the required counseling and course work, was employed, and had set up a suitable home for herself and the children. That she on occasion had contact with the father, permitted the father to have contact with the children, failed to develop a safety plan until the day before the hearing and failed to come up with an appropriate code word to signal danger, did not establish that she would fail to protect the children from exposure to domestic violence and, thus, cause them to be deprived. The court focused on the fact that the mother maintained contact with the father despite past violence in their relationship; notably, it is not clear from the record whether there were incidents of domestic violence other than the one specified or whether the children were exposed to any incidents of domestic violence. And nothing in the record demonstrated that the present acts of the mother rose to the level of deprivation of the children. The finding of deprivation was not premised on any ongoing deprivation, but rather a concern that the children might be deprived in the future if their mother did not have an acceptable plan to prevent future occurrences of domestic violence. Thus, there was not clear and convincing evidence authorizing a finding that the children continued to be deprived due to exposure to domestic violence. Under the circumstances, the juvenile court erred in finding the children deprived, and in extending custody with DFCS rather than returning custody to the mother.

2. In its order denying the mother’s motion to return custody of A. D. and instead continuing custody with DFCS, the juvenile court mentioned, in addition to the domestic violence issue addressed in Division 1, that A. D.’s continued placement in a residential treatment program “is appropriate for [his] needs” and that it “would be contrary to the welfare of the child” to return him to his mother’s home. But the court did not include any findings of fact as to A. D.’s needs (at the time of the hearing or otherwise), or any findings of fact as to why those needs would not be met if he were returned to his mother’s custody. If the record contained such evidence, the juvenile court did not cite to or rely on such evidence in reaching its conclusion. The juvenile court was required to set forth the findings of fact upon which it based its finding of deprivation. As the juvenile court failed to do so regarding A. D.’s needs and the mother’s ability to meet those needs, we remand the case and direct the court to vacate the judgment as to A. D., prepare appropriate findings of fact, and enter a new judgment.

Decided March 30, 2011.

Frederick S. Islieb, for appellant.

Thurbert E. Baker, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Kathryn A. Fox, Assistant Attorney General, Daniel C. Thomas, for appellee.

Judgment reversed in part and vacated in part, and case remanded with direction.

McFadden, J., concurs. Miller, P. J., concurs in the judgment only.

        In the Interest of Q. A., 306 Ga. App. 386, 388 (2) (702 SE2d 701) (2010) (affirming order extending custody with DFCS where supported by clear and convincing evidence); In the Interest of N. H., 296 Ga. App. 258 (1) (674 SE2d 126) (2009) (appellate courts review order finding deprivation in light most favorable to juvenile court’s judgment to determine whether any rational trier of fact could have found by clear and convincing evidence that child was deprived); In the Interest of Q. H., 291 Ga. App. 598 (662 SE2d 358) (2008) (in appeal from order extending temporary custody with DFCS pursuant to deprivation petition, court views evidence in light most favorable to juvenile court’s findings).

       In May 2009, T. D. was twelve years old, E. C. was eight years old, T. C. was three years old, and A. D. was fourteen years old.

       The therapist’s testimony was: “[The mother] had other domestic violence relationships or at least one that I’m aware of because she sought shelter in a local domestic violence program.”

       A judicial review order states that the mother was found in contempt of the February 2009 order in August 2009, though it does not indicate the date(s) of the violation(s).

        In the Interest of C. L. C., 299 Ga. App. 729, 733-734 (1) (683 SE2d 690) (2009) (punctuation and footnotes omitted).

       See In the Interest of C. H., 305 Ga. App. 549, 559 (2) (a) (700 SE2d 203) (2010).

       See OCGA § 15-11-58 (n) (3); In the Interest of J. P., 280 Ga. App. 100, 105 (2) (633 SE2d 442) (2006).

       See In the Interest of C. L. C., supra at 735 (1).

       See In the Interest of J. P., supra; In the Interest of C. F., 266 Ga. App. 325, 328 (1) (596 SE2d 781) (2004); In the Interest of M. L. C., 249 Ga. App. 435, 439 (548 SE2d 137) (2001).

        In the Interest of M. L. C., supra.

       See In the Interest of D. S., 212 Ga. App. 203, 204 (441 SE2d 412) (1994), overruled on other grounds, In the Interest of J. P., 267 Ga. 492, 493 (480 SE2d 8) (1997).

        In the Interest of C. D. E., 248 Ga. App. 756, 766 (2) (546 SE2d 837) (2001); In the Interest of J. B., 241 Ga. App. 679, 680 (1) (527 SE2d 275) (1999); In the Interest of D. L. G., 212 Ga. App. 353 (1) (442 SE2d 11) (1994).

       See In the Interest of J. B., supra.


author: Blackwell, Judge. BARNES, Presiding Judge,

text:
    A10A2105.
    KANE et al. v. LANDSCAPE STRUCTURES, INC.
    (709 SE2d 876)
   Blackwell, Judge.

Steven Kane, who was nine years of age at the time, was injured when he fell from playground equipment that he was attempting to climb in a Gwinnett County park. Like most children nine years of age, Steven appreciated the obvious risk of falling that is associated with climbing to high places, and he voluntarily chose to assume the risk. Consequently, we affirm the grant of summary judgment to the manufacturer of the playground equipment, Landscape Structures, Inc.

Landscape Structures designed the playground equipment from which Steven fell — known as the “Infant Maze” — for children between the ages of approximately eighteen months and three years. The structure consists of several vertical panels, each of which is approximately 31 inches in height, has cutouts of various shapes and sizes for the entertainment of toddlers, and has handholds to help toddlers maintain their balance as they play. The structure also features a pitched roof — which is, at its peak, approximately seven feet in height — that is mounted atop four posts and covers some of the panels. This photograph depicts the structure as it appeared in Mountain Park on the day that Steven fell while standing atop one of the panels:

Steven and his family visited Mountain Park on March 30, 2006. While his parents and sister attended a softball game, Steven and his brother, who was 13 years of age at the time, went to a nearby playground, which had play equipment for children of all ages, including the “Infant Maze” for toddlers and swings, slides, and other structures for older children. Steven had visited the playground on many occasions, and his father said that Steven and his brother could visit the playground so long as they remained within his sight, although the father acknowledged that he “really never paid attention to [the children] once they were in the playground.”

After playing a game of tag with some older children, Steven noticed that several of them had climbed atop the “Infant Maze.” According to his brother, children between the ages of nine and twelve years often climbed the structure, and his parents testified that they too had seen other children climb atop the “Infant Maze” and that, on the day Steven fell, they saw some children sitting atop the structure and jumping from it. Steven denied that he had tried to climb the structure before the day he fell, but his brother said that Steven had tried unsuccessfully to climb it on two prior occasions.

In any event, Steven knew that the “Infant Maze” was not designed for children of his age, admitting that it obviously is intended for “little kids.” Steven also knew that his mother would “probably not” approve of him climbing it. Indeed, his mother had warned him before about the danger associated with climbing various things, including structures that are not as high as the roof of the “Infant Maze.” And his parents testified that, as Steven suspected, they would not allow their children to climb atop the “Infant Maze.” Even their own expert witness in this case admitted that Steven “had some awareness of the fact that [climbing to the roof of the “Infant Maze”] was something that wasn’t intended by the manufacturer.”

Encouraged by the older children atop the structure, Steven attempted to climb to its roof. Steven acknowledged that it is “fair to say” that the roof of the structure is not something onto which one ought to climb, but he explained that the “Infant Maze” did not bear any warnings about the danger of climbing it, that “everyone else was climbing on it,” and that he “wasn’t really thinking because [he was] a kid.” The older children told him to use the horizontal handholds to climb atop a panel, and he did so. He then was able to stand upright atop the panel — which is approximately one inch in width — and while standing with his left foot on the panel, he swung his right foot upward, toward the roof, and simultaneously reached with his right hand toward the older children atop the roof, so that they could pull him up. Steven says that he did not think at the time that he was likely to fall as he attempted to climb from the panel onto the roof, but his left foot slipped, and he fell onto a panel below. As a result, Steven sustained serious injuries.

The Kanes filed a lawsuit against Landscape Structures and others, seeking to recover damages for the losses that the family sustained as a result of Steven’s fall. The Kanes asserted claims against Landscape Structures for negligent design of the “Infant Maze” and for failure to warn of the dangers associated with climbing it. Following discovery, Landscape Structures moved for summary judgment, arguing, among other things, that Steven assumed the risk of falling from the structure when he attempted to climb it. The trial court held a hearing on the motion and ultimately granted summary judgment to Landscape Structures. Based on the undisputed facts in the record, the trial court did not err in doing so.

When a motion for summary judgment is premised on the existence of an affirmative defense — such as assumption of the risk — the defendant must come forward with proof sufficient to establish each element of the affirmative defense. Fedeli v. UAP/Ga. Ag. Chem., 237 Ga. App. 337, 337 (514 SE2d 684) (1999). If the defendant does so, the plaintiff then must come forward with some evidence that shows a genuine, disputed issue of fact as to some element of the affirmative defense. Id. See also Lau’s Corp. v. Haskins, 261 Ga. 491, 491 (405 SE2d 474) (1991). “[I]f the plaintiff is unable to meet this burden of production, the defendant is entitled to summary judgment as a matter of law.” Fedeli, 237 Ga. App. at 337 (citation and punctuation omitted). Although assumption of the risk often presents a question for the jury, the issue should be decided by the court as a matter of law “where the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion.” Tennison v. Lowndes-Echols Assn. &c., 209 Ga. App. 343, 344 (433 SE2d 344) (1993).

To establish that Steven assumed the risk of falling from the “Infant Maze,” Landscape Structures was required to come forward with evidence establishing that “(1) [Steven] had some actual knowledge of the danger; (2) he understood and appreciated the risks associated with the danger; and (3) he voluntarily exposed himself to the danger.” Sayed v. Azizullah, 238 Ga. App. 642, 644 (519 SE2d 732) (1999). The specific danger of which a plaintiff must be actually aware for purposes of assumption of the risk is “the specific, particular risk of harm associated with the activity or condition that proximately causes injury,” Sones v. Real Estate Dev. Group, 270 Ga. App. 507, 509 (1) (606 SE2d 687) (2004), which, in this case, is the danger of falling from an elevated place onto some object below. The Kanes contend on appeal that the evidence does not show that Steven had actual knowledge of, and appreciated, the danger of falling from the “Infant Maze” onto a panel beneath him, and the dissent agrees, concluding that, while Steven may have understood the general risk of falling, the evidence is less than “plain and palpable” that he had a particularized and subjective awareness of the risk involved in climbing the structure, particularly given its “seemingly innocuous” appearance and that he had not observed any other children fall from the structure. In other words, the Kanes assert that the evidence is insufficient to prove that Steven knew that standing atop a narrow, vertical panel on one foot while trying to climb onto the roof of the playground structure several feet above — a roof that, as Steven admitted, is not meant for climbing — involves a risk of falling onto a visible panel beneath the roof. In the light of the undisputed evidence in the record, the relevant law, and the dictates of common sense, we find that the trial court properly rejected these contentions and awarded summary judgment to Landscape Structures.

Although the law does not expect children always to appreciate dangers to the same extent as adults, the Georgia courts have recognized that children as old as Steven are quite capable of appreciating certain obvious dangers. See, e.g., Abee v. Stone Mountain Mem. Assn., 252 Ga. 465, 465 (314 SE2d 444) (1984); O’Neal v. Sikes, 271 Ga. App. 391, 392 (609 SE2d 734) (2005); Spooner v. City of Camilla, 256 Ga. App. 179, 182 (2) (a) (568 SE2d 109) (2002); Stewart v. Harvard, 239 Ga. App. 388, 397 (4) (b) (520 SE2d 752) (1999); Riley v. Brasunas, 210 Ga. App. 865, 867 (1) (438 SE2d 113) (1993). And for more than 50 years, the Georgia courts consistently have held that the danger associated with climbing, or jumping from, an elevated place is so obvious that a young child can be found as a matter of law to sufficiently appreciate the danger, at least in the absence of evidence of a special circumstance — whether a special circumstance of the child or the place from which the child falls — that renders the child unable to appreciate the danger. As this Court explained in 1956:

No danger is more commonly realized or risk appreciated, even by children, than that of falling; consciousness of the force of gravity results almost from animal instinct. Certainly a normal child nearly [seven] years of age — indeed any child old enough to be allowed at large — knows that if it steps or slips from a tree, a fence, or other elevated structure, it will fall to the ground and be hurt. It may be that some children, while realizing the danger, will disregard it out of a spirit of bravado, or because, to use the language of the Restatement of Torts, § 339, clause (c), of their “immature recklessness,” but [a defendánt] is not to be visited with responsibility for accidents due to this trait of children of the more venturesome type.

Augusta Amusements v. Powell, 93 Ga. App. 752, 757 (92 SE2d 720) (1956) (punctuation omitted). See also O’Neal, 271 Ga. App. at 392 (concluding that nine-year-old child assumed the risk of falling from a tree, which the child climbed to use a rope swing after watching other children do the same); Nunn v. Page, 265 Ga. App. 484, 485 (1) (594 SE2d 701) (2004) (concluding that four-year-old child assumed the risk of falling from a trampoline while playing a game of chase on the trampoline); Riley, 210 Ga. App. at 867 (1) (concluding that seven-year-old assumed the risk of falling when he participated in a game that involved jumping from a mini-trampoline to a chin bar attached to a door frame).

We have no reason in this case to doubt that Steven is a child of sufficient intelligence to appreciate the obvious danger of falling. He admitted that his mother had warned him before about the dangers associated with climbing things and that he did not think his mother would have wanted him to climb the “Infant Maze.” And nothing about the “Infant Maze” would have led Steven to conclude that he could not fall from the structure or that, if he did, he could not be hurt. He testified that he knew the structure was not intended for climbing and that it was designed, instead, for younger children. And the panel onto which he fell was open and visible, and its hardness would have been obvious to a child that had climbed atop such a panel, which the Kanes do not dispute. Although he said that he did not think he would fall from the “Infant Maze,” this testimony merely reflects his assessment that a fall was unlikely, not a denial of the self-evident truth that a fall from a high place — and the injuries that might be sustained as a result — are possible. Accordingly, we must conclude that Steven sufficiently appreciated the danger that he might fall from the “Infant Maze” and be injured and, consequently, that summary judgment for Landscape Structures was appropriate.

In concluding otherwise, the dissent relies on our decision in Atlanta Affordable Housing Fund Ltd. Partnership v. Brown, 253 Ga. App. 286 (558 SE2d 827) (2002), but that case is quite distinguishable. In Brown, we affirmed a jury verdict in favor of a nine-year-old child, who was struck by a truck as she ran across a driveway. We rejected the contention in that case that the trial court had erred when it refused to instruct the jury on assumption of the risk, explaining:

While the defendants proved that the nine-year-old plaintiff was generally aware of the risk of crossing streets or driveways and being hit by moving vehicles and the need to stop and look, there existed no evidence that the child saw or was aware of the approach of the specific truck that hit her when she darted out across the driveway, because a van parked in a no-parking area of the [apartment] complex blocked her view of the approaching truck, and she had seen her friend just ahead of her safely race across the driveway without incident. Plaintiff knew generally that there was a danger in crossing without looking where vehicles drove. However, the presence or absence of moving vehicles in the driveway was a constantly changing situation so that specific knowledge of the condition could not pre-exist without specific subjective observation at any given time to determine the presence or absence of danger. Thus, the child had no subjective knowledge of the danger from the approaching truck that hit her; therefore, the first element of the defense of assumption of the risk was not proved.

253 Ga. App. at 287-288 (1) (emphasis supplied). In other words, although the child in Brown appreciated that running into a street or driveway sometimes poses a danger of being struck by traffic — when, and only when, there is traffic operating upon the street or driveway — the driveway on which the child was struck did not always have traffic, and the child was not aware that traffic was moving upon it when she was struck. Gravity, unlike traffic on a quiet street or driveway, is always present, and so, unlike a quiet street or driveway that only sometimes poses á danger to pedestrians of being struck by traffic, climbing something always poses a danger of falling from it.

Because the record in this case shows as a matter of law that Steven assumed the risk associated with climbing the “Infant Maze,” we affirm the entry of summary judgment for Landscape Structures.

Judgment affirmed.

Smith, P. J., Andrews, Mikell and Dillard, JJ., concur. Barnes, P. J., and Adams, J., dissent.

BARNES, Presiding Judge,

dissenting.

I respectfully dissent. We do not presume that a plaintiff has assumed the risk of activities or conditions he does not know about, and “[m]oreover, he must not only know of the facts which create the danger, but he must comprehend and appreciate the nature of the danger he confronts.” Beringause v. Fogleman Truck Lines, 200 Ga. App. 822, 824 (4) (409 SE2d 524) (1991).

As the majority notes, here, the older children routinely climbed on the Infant Maze, using the handholds as foot rungs to climb onto the pitched roof. They would then jump off the roof. The point of making the climb was to then jump off the roof. Although the majority relies on case law that holds, as a matter of law, that the dangers of falling from a high place are so obvious that young children can appreciate the inherent risk, in this case, young Steven did not fall from the roof of the Infant Maze. The assumption of risk question in this case is not whether Steven knew he might fall from the roof — the children routinely climbed the Infant Maze using the handholds as rungs with the specific intent of then jumping from the roof. In fact, they anticipated that gravity would operate as it always had — after climbing up, they would be able to then jump down. Here, the issue is whether Steven had the requisite knowledge and understanding of the dangers and risks involved in climbing the Infant Maze.

As this Court has held: “[Wjhether a child assumed the risk is peculiarly a question for the jury[, unless] the facts are so plain and palpable that they demand a finding by the court as a matter of law. ...” (Citations and punctuation omitted.) Pearson v. Small World Day Care Center, 234 Ga. App. 843, 845 (2) (b) (508 SE2d 200) (1998).

The doctrine of the assumption of the risk of danger applies only where the plaintiff, with a full appreciation of the danger involved and without restriction from his freedom of choice either by the circumstances or by coercion, deliberately chooses an obviously perilous course of conduct so that it can be said as a matter of law he has assumed all risk of injury.

(Citations and punctuation omitted.) Young v. Brandt, 225 Ga. App. 889, 891 (3) (485 SE2d 519) (1997).

[T]here is no legal bar to applying assumption of the risk, as a matter of law, to the conduct of a child between the[ ] ages [of seven and fourteen] when the evidence shows that the danger was obvious, that the child knew of the danger and was able to appreciate the risks associated with it, and the child voluntarily chose to run the risk.

Spooner v. City of Camilla, 256 Ga. App. 179, 182 (2) (a) (568 SE2d 109) (2002). However, “[k]nowledge of the risk is the watchword of assumption of risk, and means both actual and subjective knowledge on the plaintiffs part." Atlanta Affordable &c. Partnership v. Brown, 253 Ga. App. 286, 286-287 (1) (558 SE2d 827) (2002).

In his deposition, Steven said that on the day of the fall, other children who were already sitting on the roof of the Infant Maze encouraged him to try the climb, and instructed him on how to climb up to the roof. The children told him to place his feet on the horizontal handholds and to use the panel that extends away from the roof. As Steven perched on the panel, he extended one leg and arm toward the roof, lost his balance, and fell, straddling the narrow panel which resulted in serious, life-altering injuries.

Steven’s brother explained that the trick to successfully navigating the roof was “to get on the white [horizontal] rails and then step on the plastic piece and pull yourself up there.” The older brother said that Steven was unsuccessful in two earlier attempts to climb the roof because he “would try to climb on the vertical handle side” instead of the side with the horizontal handles.

In Atlanta Affordable, a nine-year-old child was injured when she ran from behind a van parked in a no-parking zone into the path of a truck, and was struck because the van had blocked her view of the approaching truck. Id. at 286. On appeal, we found that, although “a generalized risk may be assumed, i.e., not stopping and looking both ways before crossing a street or driveway,” the child never saw the truck that hit her so that she was unaware of actual risk. Id. at 287. We further held that while the generalized risk of not stopping and looking both ways could be assumed, “for the defense of assumption of the risk to apply in this case, there must be a particularized and subjective awareness of the actual danger of the approaching truck as well, which is the subjective risk assumed of racing against the truck’s approach.” Id. More generally, the child could not undertake the subjective risk of racing against the truck if she did not know that the truck was coming. Seemingly, the majority would have the child look both ways before crossing the street only on busy streets, because the danger of being struck is not present “on a quiet street.” Parents, however, recognize that the danger of being struck by vehicles is ever present and thus caution their children to always look both ways before entering a roadway. Thus, although in Brown, “the defendants proved that the nine-year-old plaintiff was generally aware of the risk of crossing streets or driveways and being hit by moving vehicles and the need to stop and look,” there was no evidence that the child had “subjective knowledge of the danger from the approaching truck.” Id.

Decided March 30, 2011

Swift, Currie, McGhee & Hiers, Cynthia L. Parker, Douglas A. Bennett, for appellants.

Here, while certainly Steven may have understood the general risk of falling, that understanding is irrelevant to whether he had a particularized and subjective awareness of the risk involved in climbing on this playground equipment, particularly given its seemingly innocuous nature, the placement of the horizontal bars, and that he had observed no other children fall from undertaking the climb. In fact, Steven’s older brother had successfully climbed the Infant Maze five times, and other children between the ages of nine and twelve would climb the apparatus as well. Steven had also attempted the climb twice before without injury. The “specific knowledge of the condition could not pre-exist without specific subjective observation at any given time to determine the presence or absence of danger.” Atlanta Affordable, 253 Ga. App. at 287 (1). Each child approaching that apparatus will have a different capacity to comprehend and appreciate the danger of undertaking the climb; thus, whether Steven appreciated the danger in climbing the Infant Maze is a question of fact for a jury to determine.

Accordingly, as issues of material fact exist as to whether Steven had actual knowledge of the risks associated with climbing the Infant Maze such that he assumed those risks, I respectfully dissent.

I am authorized to state that Judge Adams joins in this dissent.

Holland & Knight, John M. Hamrick, Leland H. Kynes, for appellee.

       A child also can be held as a matter of law to have knowledge of the dangers associated with fire and bodies of water, such as swimming pools and lakes. See Riley, 210 Ga. App. at 867 (1). See also Spooner, 256 Ga. App. at 182 (2); Stewart, 239 Ga. App. at 396-397 (4) (b).

       The dissent refers to the seemingly innocuous nature of the equipment. Playground equipment, of course, need not look like a deathtrap to suggest to a nine-year-old child that climbing it is a bad idea. And Steven admitted that he knew that the “Infant Maze” was not meant for climbing.

       The record is not clear about whether Steven fell onto the panel on which he had been standing or another, adjacent panel.

       The fact that Steven had seen older children successfully ascend the “Infant Maze” is no reason to doubt that he appreciated the danger involved. That a child sees other children swim in a lake without drowning, play around fire without being burned, and climb to high places without falling does not make the obvious risk involved in such activities any less apparent, even if it causes the child to think that his probability of suffering injury as a result of such activities is less than it actually is. But assumption of the risk does not require an accurate assessment of the precise probability that a danger will be realized and an injury sustained, only an appreciation that the danger exists.

       About the dissent’s accusation that we would have children cross streets without stopping to look both ways, we simply note that it brings to mind the words of Justice Jackson: “The technique of the dissenter often is to exaggerate the holding of the Court beyond the meaning of the majority and then to blast away at the excess. So the poor lawyer with a similar case does not know whether the majority opinion meant what it seemed to say or what the minority said it meant.” Robert H. Jackson, The Supreme Court in the American System of Government, pp. 18-19 (1995).

       Given that assumption of risk is an absolute defense to liability under any theory of negligence, we need not consider the Kanes’ claims that Landscape Structures negligently designed the “Infant Maze” or that it failed to properly warn of the dangers associated with the use of the “Infant Maze.” See Sones, 270 Ga. App. at 509 (2).

       Steven’s parents rushed him to the hospital after discovering that the boy’s bath water was “full of blood.” Steven required several surgical procedures after the accident, including the placement of a catheter in his bladder because of the extensive damage to his urethra. Long-term complications include possible sterility, which cannot be determined until Steven goes through puberty. Steven also experiences incontinence, pain, and problems with urine flow which require the periodic removal of the scar tissue that builds up around his “urethra tube.”

       The majority correctly notes that children appreciate certain inherent risks associated with fire, water and falling. Fortunately, our laws recognize that although children might be cognizant on a very general level about certain dangers, their capacity to comprehend and appreciate the danger of certain activities is quite different from the capacity of adults, hence safety latches on lighters, harnesses on climbing walls, and lifeguards at pools.

       Kane’s expert explained that the horizontal handholds on the side panels of the Infant Maze allowed children to use them as rungs on a ladder, in violation of certain Consumer Product Safety Commission (“CPSC”) guidelines and American Society for Testing and Materials (“ASTM”) standards. The handholds could be installed either vertically or horizontally, and if installed horizontally, they create an unreasonably dangerous condition. The expert detailed that “the horizontal rungs create! ] a ladderlike climber that leaves a child stranded on the edge of a metal panel without a platform for the child to exit onto for balance and stability .. . [and reflected] a clear failure to adequately address the safety of children.”


text:
    A10A2164.
    JACKSON v. THE STATE.
    (709 SE2d 44)
   PHIPPS, Presiding Judge.

Michael P Jackson appeals his convictions for the hijacking of a motor vehicle, possession of a firearm during the commission of a felony, and theft by receiving stolen property (a cell phone, CDs, and a digital camera). He contests the sufficiency of the evidence and the trial court’s rejection of his claim of ineffective assistance of trial counsel. We reverse the hijacking and possession of a firearm convictions for lack of sufficient evidence to sustain them. We affirm Jackson’s theft by receiving conviction.

1. Jackson contends that the evidence was insufficient to support his convictions for hijacking of a motor vehicle and possession of a firearm during the commission of a felony. When an appellant challenges the sufficiency of the evidence, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

So viewed, the evidence showed that at about 2:00 a.m. on May 11, 2008, the owner of a Nissan Maxima who had exited a dance club saw his car being driven toward the parking lot exit. Although the owner had left his car unlocked, he had not given anyone permission to drive it and had retained the ignition key in his possession. The owner testified that he walked to within about two steps of the driver’s side window, which was about halfway open, and said something like, “[Tjhat’s my car . . . back up.” At that point, the owner recounted, a male passenger holding a handgun “pointed it at me like back up from the car.” The owner retreated, and his car was driven out of the parking lot. The parking lot was well lit. The owner had noted that the male driver was wearing a red hat and that, in addition to the gunman, there were another male and two female passengers. The owner immediately reported the incident to police.

Within minutes, police spotted the Maxima less than a half-mile from the dance club. It was parked in the driveway of a residence; there were five occupants in the car: three males and two females. The officers activated the emergency lights of their patrol vehicle and walked toward the Maxima. A man wearing a red hat abruptly got out of the driver’s seat and fled on foot.

The fleeing suspect — identified at trial as Jackson by one of the officers who approached the Maxima — was soon apprehended. A search of Jackson’s person yielded a stolen iPod and a stolen wallet. The other four occupants, who had remained seated in the Maxima, were ordered out of the car one at a time. When all of them were out of the car, the police searched the vehicle and retrieved from under the driver’s seat a handgun. Also found during the search were various stolen items, including cell phones, another iPod, CDs, and a digital camera. These items, as well as the stolen items found on Jackson’s person, had been taken out of another car parked that night in the same dance club parking lot. Although the doors to that car had been locked, a back window had been left partially down.

That same night, a police officer took the owner of the Maxima to his car, where the owner identified Jackson as the driver. The Maxima was released to the owner, who noted that the steering column had been damaged since he parked his car before going into the dance club. At trial, the owner again identified Jackson as the driver.

(a) Georgia’s hijacking statute provides, “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.” Jackson argues that the evidence was insufficient to prove the hijacking count of the indictment, which alleged that he “did, while in possession of a firearm, obtain a motor vehicle, to wit: a Nissan Maxima from the presence of another, to wit: [the owner], by intimidation by pointing the gun at said victim.”

Citing evidence that the gun was not pointed at the owner until after the Maxima had already been “hot-wired” out of its parking space and he was driving it out of the parking lot, Jackson asserts that there was no showing that he “ obtain [ed]” the car as proscribed by the hijacking statute. More specifically, Jackson argues that there was no evidence that he “obtained” the Maxima from the presence of its owner by intimidation with a gun.

In resolving this contention, we turn to rules of statutory interpretation.

[I]n all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly. In so doing, the ordinary signification shall be applied to all words. Where the language of a statute is plain and susceptible to only one natural and reasonable construction, courts must construe the statute accordingly. In fact, where the language of a statute is plain and unambiguous, judicial construction is not only unnecessary but forbidden.

The text of the hijacking statute does not define “obtain.” We therefore look to the ordinary meaning of that word, given that it is not a term of art or a technical term. Ordinarily, “obtain” means “to gain or attain possession . . . usu[ally] by some planned action or method.” Applying the ordinary meaning of “obtain,” the offense of hijacking a motor vehicle is concluded when possession of the motor vehicle is attained.

As Jackson points out, when the gun was pointed at the Maxima’s owner, he and several others were already inside the car and he was driving away in it. We agree with Jackson that, by that point, the Maxima had already been attained by Jackson. The state thus failed to adduce evidence that Jackson, “while in possession of a firearm or weapon obtain[ed] a motor vehicle from the person or presence of another by force and violence or intimidation.

Indeed, “[i]n arriving at the intention of the legislature, it is appropriate for the court to look to the old law and the evil which the legislature sought to correct in enacting the new law and the remedy provided therefor.” The purpose of the hijacking statute is to punish more severely those defendants who use a weapon to forcibly obtain a vehicle from the person or immediate presence of another. While the evidence showed that Jackson’s conduct was criminal, it fell short of placing him amongst those intended to be more severely punished by the hijacking statute.

Cases such as Bradford v. State and Haugland v. State support our conclusion. Bradford set out: “The essential elements of the offense of motor vehicle hijacking are: (1) possessing a firearm or weapon; (2) while obtaining or attempting to obtain a motor vehicle from the person or presence of another; (3) by force and violence or intimidation.” All three judges on the Bradford panel agreed that reversal of the hijacking conviction was demanded because, in attempting to obtain the vehicle, the defendant had not been in possession of a firearm.

Citing Bradford (and further analyzing the weapon requirement of the armed robbery statute), we reversed the hijacking conviction in Haugland. In that case, the evidence showed that the defendant had jerked an elderly woman out of her car, flung her across the street, and stolen her car. There was no evidence, however, that the defendant had thus obtained the car while in possession of a weapon.

Citing Haugland, the Supreme Court of Georgia has confirmed: “(T)he weapon requirement of the hijacking statute is similar to that of the armed robbery statute.”

Georgia’s[] armed robbery statute clearly contemplates that the offensive weapon be used as a concomitant to a taking which involves the use of actual force or intimidation (constructive force) against another person. It follows that armed robbery does not occur unless the robber’s use of an offensive weapon directly or indirectly induces the possessor of the property to relinquish possession to the perpetrator,

Stated differently, the use of the offensive weapon “must either precede or be contemporaneous with, and not subsequent to, the taking.” Our conclusion in the instant case complies with those principles. While occupying the Maxima and driving it away, Jackson — not the Maxima’s owner — was in possession of the vehicle at the time the weapon was pointed at the owner. It follows, then, that Jackson did not use the gun as a concomitant to induce the Maxima’s owner to “relinquish possession” of the car. The gun, the evidence showed, was used only after Jackson had attained possession of the vehicle.

We thus reject the state’s bare assertion that “it was only when [Jackson’s] accomplice pointed a gun at -[the owner], forcing him away from the car, did [Jackson] obtain[ ] the vehicle.” The legislature could have included language in the hijacking statute that proscribes not only obtaining, but also retaining a motor vehicle (once it has been attained). But it did not, and we discern that the absence of such language was a matter of considered choice. “A court of law is not authorized to rewrite the statute by inserting additional language that would expand its application. . . . Any expansion of the [motor hijacking statute] must come from the legislature, as it alone is entrusted with the authority to amend existing laws.” Moreover, even if we determined that the statutory language employed was ambiguous, the same conclusion results. This is because “[w]hen a criminal statute fairly and reasonably is subject to two constructions, one which would render an act criminal, the other which would not, the statute must be construed strictly against the State and in favor of the accused.”

Because the evidence did not authorize a finding that Jackson committed the crime with which he was charged — hijacking a motor vehicle — his conviction therefor must be reversed.

(b) OCGA § 16-11-106 (b) prohibits any person from having “on or within arm’s reach of his or her person a firearm” during the commission of one of the specifically described crimes, “and which crime is a felony.” The indictment alleged that Jackson did “have within arms reach of his person a firearm . . . during the commission of a felony, to wit: Hijacking a Motor Vehicle.” Challenging the sufficiency of the evidence, Jackson argues that the state failed to prove this count because it was premised on the hijacking count, which was without sufficient evidentiary support.

“[I]t is clear from the language of OCGA § 16-11-106 (b) that the commission of the felony named in the indictment is an essential element of possession of a firearm during commission of a crime.” Because the possession of a firearm count of the indictment named only hijacking as the predicate felony, the state’s failure to prove hijacking results in reversal of Jackson’s conviction for possession of a firearm.

2. Jackson contends that the trial court erred by rejecting his claim of ineffective assistance of counsel.

To prevail on a claim of ineffective assistance of counsel,

a defendant must establish, pursuant to Strickland v. Wash ington, that counsel’s performance was deficient and that the deficient performance was prejudicial to his defense. . . . In reviewing a trial court’s determination regarding a claim of ineffective assistance of counsel, this court upholds the trial court’s factual findings unless they are clearly erroneous; we review a trial court’s legal conclusions de novo.

We need not address both components of the Strickland test if the showing on one is insufficient, nor must we address the components in any particular order.

Jackson asserts that, when the Maxima’s owner identified him that night as the individual who had driven his car out of the dance club parking lot, he was subjected to an impermissibly suggestive lineup. Jackson therefore complains that his trial counsel did not seek to exclude that identification of him, as well as the car owner’s in-court identification of him as tainted by the previous identification.

Pretermitting whether Jackson’s trial counsel performed defi-ciently as alleged, we find no reasonable probability that the outcome of Jackson’s trial would have been different even had the evidence been excluded. Immediately after the owner observed his car being driven out of the parking lot, he reported the incident to police. In his report, the owner described his car and its occupants and stated that the male driver was wearing a red hat. Within minutes, law enforcement officers spotted the Maxima. As had been reported, inside were three male and two female occupants, and the male sitting in the driver’s seat was wearing a red hat. When officers approached the Maxima, Jackson immediately exited the vehicle and attempted to flee on foot. When he was apprehended, officers found on his person items stolen from another car that had been parked at the club. Additional items stolen from that same car were also found in the Maxima, as was a handgun.

Given the overwhelming evidence of Jackson’s guilt, he cannot show a reasonable probability that the jury would have had a reasonable doubt respecting his guilt, had the owner’s identifications of him been excluded. We find no error in the trial court’s rejection of Jackson’s claim of ineffective assistance of counsel.

Decided March 30, 2011.

Brown & Gill, Angela B. Dillon, for appellant.

Daniel J. Porter, District Attorney, Tandrea B. Beasley, Assistant District Attorney, for appellee.

Judgment affirmed in part and reversed in part.

Miller, P J., and McFadden, J., concur.

       Jackson does not contest the sufficiency of the evidence with respect to his conviction for theft by receiving.

        Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

       OCGA § 16-5-44.1 (b).

        Abdulkadir v. State, 279 Ga. 122, 123 (2) (610 SE2d 50) (2005) (punctuation and footnotes omitted).

       OCGA § 16-5-44.1.

       See OCGA § 1-3-1 (b) (“In all interpretations of statutes, the ordinary signification shall be applied to all words, except words of art or words connected with a particular trade or subject matter, which shall have the signification attached to them by experts in such trade or with reference to such subject matter.”); Harris v. State, 286 Ga. 245, 246 (3) (686 SE2d 777) (2009) (considering ordinary meaning of key words of statute, where statute did not provide for definition and such words constituted neither a term of art nor a technical term); Land v. State, 262 Ga. 898, 899 (1) (426 SE2d 370) (1993) (General Assembly need not define every word it uses in a statute, as a cardinal rule of statutory construction is that the ordinary signification shall be applied to all words, except words of art or words connected with a particular trade or subject matter) (citing OCGA § 1-3-1 (b)).

       Webster’s Third New International Dictionary (1981 ed.). See State v. Kell, 276 Ga. 423, 425 (577 SE2d 551) (2003) (the verb “obtain” is defined as “to gain or attain possession ... by some planned action or method”) (quoting Webster’s Third New International Dictionary).

       See Kell, supra (applying dictionary definition to ascertain meaning of “obtain” in criminal statute, and holding that the offense is concluded when the property is attained); Bruce v. State, 252 Ga. App. 494, 497 (1) (a) (555 SE2d 819) (2001) (“[T]he offense of hijacking a motor vehicle is complete when a person while in possession of a firearm or weapon obtains a motor vehicle from the victim. The concept of ‘obtaining’ a motor vehicle from its owner encompasses the notion of acquiring control thereof.”).

       OCGA § 16-5-44.1 (b) (emphasis supplied).

        State v. Mulkey, 252 Ga. 201, 204 (2) (312 SE2d 601) (1984) (citation and punctuation omitted).

        Haugland v. State, 253 Ga. App. 423, 426-427 (2) (560 SE2d 50) (2002); see OCGA § 16-5-44.1 (c), (d), (e).

       223 Ga. App. 424 (477 SE2d 859) (1996) (physical precedent only).

       Supra.

        Bradford, supra at 425 (1) (emphasis supplied) (essential elements also set forth by full panel in Anderson v. State, 246 Ga. App. 189, 190 (1) (539 SE2d 879) (2000)).

        Bradford, supra at 425-426; id. at 428 (Beasley, C. J., concurring specially).

       Supra.

       Id. at 423.

       Id. at 427 (2).

        Heard v. State, 287 Ga. 554, 555 (1) (697 SE2d 811) (2010), quoting Haugland, supra; see OCGA § 16-8-41 (a) (defining armed robbery as occurring “when, with intent to commit theft, [a person] takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon”).

       In Miles v. State, 261 Ga. 232, 235 (1) (b), n. 2 (403 SE2d 794) (1991), the Court noted that, under the Model Penal Code, as well as some “more modern statutes in other states,” armed robbery may be found even “if the defendant’s use of force occurs ‘in flight’ after the taking.”

        State v. Epps, 267 Ga. 175, 176-177 (476 SE2d 579) (1996) (citation and punctuation omitted; emphasis supplied).

        Oliver v. State, 232 Ga. App. 816, 817 (1) (503 SE2d 28) (1998) (punctuation and footnote omitted).

       Accord Miles, supra at 234-235 (1) (b) (reversing armed robbery conviction because evidence failed to establish whether an offensive weapon was used before or contemporaneously with the taking); Hicks v. State, 232 Ga. 393, 403 (207 SE2d 30) (1974) (reversing armed robbery conviction because evidence showed that the theft occurred before victim became aware that her attacker had a gun).

        Fair v. State, 284 Ga. 165, 168 (2) (b) (664 SE2d 227) (2008).

        Abdulkadir, supra at 124 (footnotes omitted).

        Vines v. State, 269 Ga. 438, 439 (499 SE2d 630) (1998) (citation and punctuation omitted); see State v. Langlands, 276 Ga. 721, 724 (2) (583 SE2d 18) (2003).

        Jackson v. Virginia, supra; Haugland, supra at 428; Bradford, supra at 426. Compare, e.g., Mason v. State, 288 Ga. 471-473 (1) (704 SE2d 802) (2011) (evidence sufficient to prove hijacking, where defendant intimidated victim with gun when he took her car from her); Heard, supra at 554-556 (1) (evidence sufficient to prove hijacking, where defendant acted as though he were holding a gun, threatened to shoot victim, took her car keys from her person, then fled in her car); Culver v. State, 290 Ga. App. 321-323 (659 SE2d 390) (2008) (evidence sufficient to prove hijacking, where defendant approached victim while she was sitting in her car, threatened her with a gun, and demanded her vehicle; after she complied, he drove away in it); Mullins v. State, 267 Ga. App. 393, 395-396 (1) (b) (599 SE2d 340) (2004) (although another person was holding keys at time of crime, the victim was standing by the vehicle when gunman pointed gun at both individuals, took the keys, and used them to drive away in the vehicle).

        King v. Waters, 278 Ga. 122, 123-124 (2) (598 SE2d 476) (2004) (footnote omitted).

        See Jackson v. Virginia, supra; King, supra; see also Prater v. State, 273 Ga. 477, 479 (1) (545 SE2d 864) (2001).

       Given that Jackson’s convictions for hijacking and possession of a firearm have been reversed, this contention is relevant only with respect to Jackson’s theft by receiving conviction.

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

        Espinosa v. State, 285 Ga. App. 69, 72 (2) (645 SE2d 529) (2007) (footnotes omitted).

        Turner v. State, 253 Ga. App. 760, 763 (6) (560 SE2d 539) (2002).

       See Collier v. State, 280 Ga. 148, 149 (2) (625 SE2d 757) (2006) (to establish prejudice prong of an ineffectiveness claim, a defendant must show that, but for counsel’s deficient performance, a reasonable probability exists that the trial would have had a different outcome).

       See generally Landers v. State, 270 Ga. 189, 191 (4) (508 SE2d 637) (1998).