author: BARNES, Presiding Judge.

text:
    A17A0010.
    COOPER v. THE STATE.
    (801 SE2d 589)
   BARNES, Presiding Judge.

Following the denial of his motion for new trial, Jacquez M. Cooper appeals his convictions for armed robbery, aggravated assault and possession of a firearm or knife during the commission of a felony. He was sentenced to twenty years, to serve twelve, for the robbery conviction, a concurrent sentence of twenty years probation for the assault conviction, and a consecutive five-year sentence of probation for the possession of a firearm or knife conviction.

On appeal, Cooper contends that the evidence was insufficient to sustain his convictions and that the trial court’s charge on inference of guilt based on recent possession of stolen property was unconstitutional as applied to his case, was an improper comment on his guilt, and was in direct conflict with other jury charges. Cooper also contends that trial counsel was ineffective, and that the trial court erred in charging on accomplice liability.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys a presumption of innocence. Harris v. State, 307 Ga. App. 847, 847 (706 SE2d 702) (2011). This Court “does not weigh the evidence or judge the credibility of the witnesses but only determines whether the evidence to convict is sufficient under the standard of Jackson v. Virginia[, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979)].” (Punctuation omitted.) Krauss v. State, 263 Ga. App. 488, 488 (1) (588 SE2d 239) (2003). Any conflicts in the testimony of the witnesses “are a matter of credibility for the jury to resolve.... So long as there is some competent evidence, even though contradicted, to support each element of the State’s case, the jury’s verdict will be upheld.” (Citation and punctuation omitted.) Id.

Viewed in this light, the evidence demonstrates that on October 7, 2014, at approximately 1:30 a.m., the victim, who was homeless and walking toward an overpass where he planned to sleep for the night, approached two men who were standing on the sidewalk. One man appeared to be arguing with someone on his cell phone, and the other man was standing nearby As he walked past them, one of the men pulled out a 9 millimeter pistol and struck the victim in the head. The man followed the victim as he stumbled away into the street and pointed the gun at the victim and ordered him on the ground. The man on the cell phone did not follow them into the street but stayed on the sidewalk and did not intervene. The man asked for his wallet, but the victim did not have one, so the man demanded his backpack. The victim saw the man “quickly walk[ ] away across the street,” and heard a gunshot, but did not see who fired the gun.

The victim called 911, and responding officers noted that the victim appeared very upset and that his face was bloody. An officer responding to a BOLO (be on the lookout) for the suspects located two men who matched the victim’s description about a half-mile away from the crime scene. The men were sweating and out of breath when police stopped them, and one of them, later identified as Cooper, was wearing a backpack that matched the description of the one stolen from the victim and was also in possession of a 9 millimeter pistol. Cooper told police that he found the backpack and gun on the side of the road. The victim was taken to the scene, where he positively identified his backpack, the contents, and the two robbers. He also identified Cooper at trial as the man who robbed him and assaulted him. The victim also told police that the men took $25 from his person, but later admitted that he had lied and that no money was stolen from him.

Cooper and the other man, later identified as Michael Odus, were indicted for armed robbery, aggravated assault, and possession of a firearm or knife during the commission of a felony Following a joint trial, at which Odus testified, and Cooper did not, Cooper was found guilty of all charges, and Odus was acquitted.

1. Cooper contends that the evidence was insufficient to sustain his convictions. We do not agree.

In this case, the victim identified Cooper as one of the two robbers, and as the robber who had struck him with a gun. See OCGA § 24-14-8 (“The testimony of a single witness is generally sufficient to establish a fact.”). Moreover, within minutes of the 911 call, Cooper was apprehended a short distance from the attack in possession of the victim’s backpack and a 9 millimeter pistol. Even if, as Cooper argues, the victim only assumed that Cooper was the one who struck him because he was in possession of the gun, “[circumstantial evidence of identity may be sufficient to enable a rational trier of fact to find a defendant guilty beyond a reasonable doubt.” Onumah v. State, 313 Ga. App. 269, 272 (3) (721 SE2d 115) (2011).

Having considered the evidence above as well as other evidence presented at trial under the standard appropriate for our review, we find it sufficient beyond a reasonable doubt to prove that Cooper was the perpetrator of the crimes charged. Jackson, 443 U. S. at 307.

To the extent that Cooper maintains that the trial court did not properly exercise its discretion as the thirteenth juror in weighing the evidence, the trial court’s statements in its order denying the motion for new trial specifically noted that, in acting as the thirteenth juror pursuant to OCGA §§ 5-5-20 and 5-5-21, it “reviewed the record and [found] that the verdict is neither contrary to law nor the evidence; in fact, the court finds the verdict is decidedly supported by the weight of the evidence.” See OCGA §§ 5-5-20 and 5-5-21; Walker v. State, 292 Ga. 262, 264 (2) (737 SE2d 311) (2013) (statutes “afford the trial court broad discretion to sit as a ‘thirteenth juror’ and weigh the evidence on a motion for new trial alleging these general grounds”) (citation and punctuation omitted). “A trial judge’s denial of a motion for new trial on evidentiary grounds will be reversed on appeal only if there is no evidence to support the verdict.” (Citation and punctuation omitted.) Parker v. State, 244 Ga. App. 419, 421 (2) (535 SE2d 795) (2000). We discern no such abuse in this case.

2. Cooper contends that the trial court’s charge on inference of guilt based on recent possession of stolen property was unconstitutional as applied to his case because it required him to provide a reasonable explanation for his possession of the property and thus dispel an inference of guilt, which would violate his Fifth Amendment privilege against self-incrimination. We do not agree.

The trial court instructed the jury:

[I]f you should find beyond a reasonable doubt that the crime of armed robbery has been committed as charged in this indictment and that certain personal property as set forth in the indictment was stolen as a result of such crime and if recently thereafter the defendant should be found in possession of any of the stolen property, that would be a circumstance along with all the other evidence from which you may infer guilt as to the charge of armed robbery as set forth in Count 1 of this indictment. If you find the evidence merits such an inference, you may not draw an inference of guilt if from the evidence there is a reasonable explanation of the possession of such property consistent with a plea of innocence which is a question solely for you, the jury, to determine.

Regarding the complained-about language in the charge,

[i]t has long been settled in this state that recent unexplained possession of stolen property permits the jury to infer that the accused committed the theft. It should be emphasized that the recent unexplained possession creates only a permissible inference of guilt of a “presumption of fact,” . . . which the jury may or may not draw. Whether the charge is fashioned in the language of “inferences” or “presumptions,” the technical import of the charge is the same, especially where the “presumption” is expressly qualified in the charge as one of evidence and not of law. Read in the light of the entire charge to the jury, including full charges on reasonable doubt, the [Sjtate’s burden of proof and the presumption of innocence, that portion of the charge complained of here cannot be said to have either reduced the [Sjtate’s burden of proving guilt or shifted to the petitioner the burden of proving his innocence. The charge, taken as a whole, left the burden of persuasion on the [Sjtate.

(Citations omitted.) Byrd v. Hopper, 234 Ga. 248, 250-251 (215 SE2d 251) (1975). Accordingly, this enumeration fails.

3. Cooper further contends that the charge on inference of recent possession was an improper comment on his guilt by the trial judge in violation of OCGA § 17-8-57. We do not agree.

OCGA § 17-8-57, at the time of Cooper’s April 2015 trial, provided:

It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused. Should any judge violate this Code section, the violation shall be held by the Supreme Court or Court of Appeals to be error and the decision in the case reversed, and a new trial granted in the court below with such directions as the Supreme Court or Court of Appeals may lawfully give.

This Code section is violated only when the trial court’s instruction “considered as a whole, assumes certain things as facts and intimates to the jury what the judge believes the evidence to be.” (Citations and punctuation omitted.) Martinez v. State, 325 Ga. App. 267, 275 (3) (750 SE2d 504) (2013).

Here, the trial court’s comments did not constitute a comment before the jury on a disputed issue of fact or intimate an opinion about Cooper’s guilt but merely instructed the jury on the permissible inference of possession. The trial court also instructed the jury that “by no ruling or comment that the [cjourt has made during the progress of the trial has the [cjourt intended to express any opinion from the facts of the case, upon the credibility of the witnesses, upon the evidence, or upon the guilt or innocence of the defendant.” Accordingly, considering the court’s instructions as a whole, the court did not intimate to the jury what it believed the evidence to be.

4. Cooper next contends that trial counsel was ineffective for failing to object to the charge on inference of recent possession. We find this contention meritless.

To prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the defendant that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different,. See Strickland v. Washington, 466 U. S. 668, 687 (104 SC[t] 2052, 80 LE2d 674) (1984). If an appellant fails to meet his or her burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong. In reviewing the trial court’s decision, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts. Furthermore, there is a strong presumption that the performance of counsel was within the wide range of reasonable professional lawyering, and we cannot reach a contrary conclusion unless defendant successfully rebuts the presumption by clear and convincing evidence. Judicial scrutiny of counsel’s performance must be highly deferential.

(Citation and punctuation omitted.) Littlejohn v. State, 320 Ga. App. 197, 205-206 (5) (739 SE2d 682) (2013).

As explained in Division 2, Cooper’s contention regarding the language in the trial court’s instruction on the inference of guilt related to recent possession is meritless, and “[fjailure to make a meritless or futile objection or motion cannot be evidence of ineffective assistance.” Owens v. State, 271 Ga. App. 365, 370 (5) (609 SE2d 670) (2005). Accordingly, this assertion does not provide a basis for finding Cooper’s trial counsel ineffective.

5. We also find no merit in Cooper’s contention that the trial court erred in charging on accomplice liability. He essentially asserts that the accomplice charge was not supported by the evidence because Odus, his co-defendant, testified at trial and denied committing the crimes. Thus, Cooper maintains, because he did not testify, there is no evidence that he was an accomplice to the crime. We find no merit to this argument.

“To authorize a requested jury instruction, there need only be slight evidence supporting the theory of the charge.” Hicks v. State, 287 Ga. 260, 262 (2) (695 SE2d 195) (2010); accord Scott v. State, 291 Ga. 156, 157-158 (2) (728 SE2d 238) (2012); Webb v. State, 284 Ga. 122, 126 (4) (663 SE2d 690) (2008). It is a question of law whether the evidence presented is sufficient to authorize the giving of a particular charge. Hicks, 287 Ga. at 262 (2). Moreover,

[w]hile there is [conflicting] evidence regarding precisely “who did what” . . . there is ample evidence to implicate [Cooper] either as a principal or as a party to the crimes. See OCGA § 16-2-20 (persons “concerned in the commission of a crime,” by way of intentionally aiding and abetting or intentionally advising, encouraging, or counseling another to commit such crime, may be charged with and convicted of commission of the crime); see also Hassel v. State, 294 Ga. 834 (1) (755 SE2d 134) (2014) (evidence regarding defendant’s presence at crime scene, motive, and conduct before and after crime was sufficient to establish guilt as an accomplice); Rush v. State, 294 Ga. 388, 389 (1) (754 SE2d 63) (2014) (“[presence, companionship, and conduct before and after an offense is committed are circumstances from which participation in the criminal act may be inferred”).

Decided June 2, 2017

Reconsideration denied July 13, 2017

Frances C. Kuo, for appellant.

Dan iel J. Porter, District Attorney, Christopher M. Quinn, Robert D. Wolf, Assistant District Attorneys, for appellee.

Babbage v. State, 296 Ga. 364, 366-367 (1) (768 SE2d 461) (2015).

Where, as here, there is slight evidence supporting a finding that a witness was an accomplice, the jury should be given proper guidance not only on how to decide whether the witness was in fact an accomplice but also on the extent to which it can rely on that witness’ testimony by itself to support a conviction.

Hamm v. State, 294 Ga. 791, 796 (2) (756 SE2d 507) (2014). See Jones v. State, 268 Ga. 12, 14 (1) (483 SE2d 871) (1997) (“it is for the jury to determine whether the witness is an accomplice”) (citation and punctuation omitted). Accordingly, the trial court did not err in charging the jury on accomplice liability.

Judgment affirmed.

McMillian and Mercier, JJ., concur.

       This appeal was originally filed in the Supreme Court of Georgia. However, upon finding that Cooper’s constitutional challenge did not fall within the ambit of the Supreme Court’s jurisdiction, the appeal was transferred to this Court. We therefore conclude that the constitutionality of OCGA § 5-3-20 is not properly an issue in this appeal. See Zepp v. Mayor & Council of City of Athens, 255 Ga. 449, 450 (2) (339 SE2d 576) (1986).

       Effective July 1, 2015, OCGA § 17-8-57 was amended to provide:
      (a)(1) It is error for any judge, during any phase of any criminal case, to express or intimate to the jury the judge’s opinion as to whether a fact at issue has or has not been proved or as to the guilt of the accused.
      (2) Any party who alleges a violation of paragraph (1) of this subsection shall make a timely objection and inform the court of the specific objection and the grounds for such objection, outside of the jury’s hearing and presence. After such objection has been made, and if it is sustained, it shall be the duty of the court to give a curative instruction to the jury or declare a mistrial, if appropriate.
      (b) Except as provided in subsection (c) of this Code section, failure to make a timely objection to an alleged violation of paragraph (1) of subsection (a) of this Code section shall preclude appellate review, unless such violation constitutes plain error which affects substantive rights of the parties. Plain error may be considered on appeal even when a timely objection informing the court of the specific objection was not made, so long as such error affects substantive rights of the parties.
      (c) Should any judge express an opinion as to the guilt of the accused, the Supreme Court or Court of Appeals or the trial court in a motion for a new trial shall grant a new trial.


source: Caselaw Access Project

author: McFADDEN, Presiding Judge.

license: Public Domain

text:
    A17A0062, A17A0063.
    905 BERNINA AVENUE COOPERATIVE, INC. et al. v. SMITH/BURNS LLC et al.; and vice versa.
    (802 SE2d 373)
   McFADDEN, Presiding Judge.

This is a dispute between neighbors over the actual location of their common boundary line and the existence of easements in a disused railroad spur track and an alley. The spur track is on the boundary line between the two properties. The alley runs alongside both properties and provides access from a public street to the spur track. The parties to the litigation are plaintiffs Smith/Burns LLC, which owns property located at 331 Elizabeth Street, and its members, Gerald R. Burns and David P Smith (collectively, “the plaintiffs”); and defendants 905 Bernina Avenue Cooperative, Inc. (“the Co-op”), which owns property located at 905 Bernina Avenue, and Thomas and Janet Berry, who are officers and shareholders of the Co-op and lease a residential unit in the 905 Bernina building (collectively, “the defendants”).

The dispute, in a nutshell, is as follows. Years ago, a common owner developed the parties’ properties as part of a group of warehouses with attached platforms backing up to a railroad spur track. Today, the spur track is filled in with concrete and level with the platforms. The buildings at 905 Bernina and 331 Elizabeth sit across the spur track from each other. The spur track is on the 905 Bernina property An alley runs next to both properties, providing access to the filled-in spur track.

The parties’ dispute arose when the defendants installed a fence on the spur track and on a portion of the platform attached to the building at 331 Elizabeth. Once the dispute over the fence arose, the plaintiffs also objected to obstructions the defendants had built in the portion of the alley adjacent to 905 Bernina. The multiple pleadings in this case set forth the following claims. The plaintiffs seek a declaration that plaintiff Smith/Burns owns the platform attached to its building at 331 Elizabeth; a declaration that plaintiff Smith/Burns has an express or prescriptive easement over the spur track; an injunction requiring the defendants to remove the fence; a declaration that plaintiff Smith/Burns has an easement to use the entire alley adjacent to both properties; an injunction requiring the defendants to remove the obstructions in the alley; and damages for trespass and interference with property rights. The defendants argue that the boundary line between 905 Bernina and 331 Elizabeth extends to the wall of the building at 331 Elizabeth, making the platform attached to the building at 331 Elizabeth part of the defendant Co-op’s property. They seek a declaration that “no one other than the [defendant] Co-[o]p and its shareholders has any easement or ownership right in the Co-[o]p’s [p]roperty nor any other right to use the Co-[o]p’s [p]roperty.”

The parties filed cross-motions for partial summary judgment on the issues regarding their rights in the platform, the spur track, and the alley. (The motions for partial summary judgment did not address the plaintiffs’ entitlement to damages for trespass, and that issue remains pending below.) The trial court appointed a special master to consider the motions, and the special master issued a report recommending that the trial court:

(1) declare that plaintiff Smith/Burns has fee simple title in the land on which the platform attached to the building at 331 Elizabeth sits;

(2) declare that an express, nonexclusive easement in the spur track exists for the benefit of the property at 331 Elizabeth and its owners, the plaintiffs;

(3) declare that the defendants’ property line “extends out and up to the edge of” the platform attached to the building at 331 Elizabeth, but is subject to the plaintiffs’ easement rights in the spur track; and

(4) declare that the plaintiffs do not have an express easement in the alley.

The special master also recommended that the trial court order:

(1) the defendants to remove all structures located on the platform attached to the building at 331 Elizabeth and those structures that block the spur track area;

(2) the parties to secure a survey of the land to illustrate the above declarations;

(3) the clerk of the superior court to record in the public deed records the special master’s report, the trial court’s final order, and the above-described survey; and

(4) the parties to pay special master’s fees and costs in compliance with the order appointing the special master.

The special master attached to her report a demonstrative sketch of the properties, which is shown here for demonstrative purposes only.

Over objections from both sets of parties, the trial court adopted the special master’s report. Although the trial court did not expressly state that he was ruling on the motions for partial summary judgment, his ruling had the effect of granting partial summary judgment to the plaintiffs as to the platform and spur track and granting partial summary judgment to the defendants as to the alley. See Quarles v. Quarles, 285 Ga. 762 (683 SE2d 583) (2009). Both sets of parties appealed to the Supreme Court of Georgia, which transferred the appeals to this court because the appeals “arise from a suit over a disputed boundary line and easement rights.”

As detailed below, we find that, as a matter of law, the plaintiffs were entitled to a declaration that plaintiff Smith/Burns had fee simple title to the platform attached to the building at 331 Elizabeth and to declarations that the plaintiffs/owners of 331 Elizabeth had an express easement in both the spur track and the alley. In other words, the plaintiffs were entitled to partial summary judgment on the platform, spur track, and alley issues. So we affirm that part of the trial court’s order adopting the special master’s recommended declarations regarding the platform and spur track and requiring the defendants to remove structures obstructing the platform and spur track, but we reverse that part of the trial court’s order adopting the special master’s recommended declarations regarding the alley. Given this disposition, we vacate that part of the trial court’s order adopting the special master’s remaining recommendations and remand the case for further proceedings consistent with this opinion.

Finally, we do not address the plaintiffs’ claim on appeal that the trial court erred in dismissing an earlier version of the plaintiffs’ trespass claim, because the plaintiffs subsequently amended their complaint to reassert a claim for trespass, and that claim remains pending below.

1. Facts.

Even though this case involves recommendations by a special master, because the parties made the decision to move for partial summary judgment, the standards governing motions for summary judgment and their review on appeal apply. Boyd v. JohnGalt Holdings, LLC, 294 Ga. 640, 644 (4), n. 6 (755 SE2d 675) (2014). “[T]o prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, so that the party is entitled to a judgment as a matter of law.” Cowart v. Widener, 287 Ga. 622, 623 (1) (a) (697 SE2d 779) (2010) (citations and punctuation omitted). When a plaintiff moves for summary judgment, he “has the burden of establishing the absence or non-existence of any defense raised by the defendant.” Vance v. FD 2011-C1 Grove Rd., 340 Ga. App. 36 (795 SE2d 747) (2016) (citation and punctuation omitted). When a defendant moves for summary judgment, he has the burden of “either presenting evidence negating an essential element of the plaintiff’s claims or establishing from the record an absence of evidence to support such claims.” Cowart, 287 Ga. at 623 (1) (a) (citation and punctuation omitted). “We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Because this opinion addresses cross-motions for summary judgment, we will construe the facts in favor of the nonmoving party as appropriate.” Maree v. ROMAR Joint Venture, 329 Ga. App. 282, 283 (763 SE2d 899) (2014) (citation omitted).

So viewed, evidence shows that the properties at issue — 331 Elizabeth and 905 Bernina — descend from a parcel of land described, on a plat recorded in 1915, as the Copenhill Land Company property 331 Elizabeth is comprised of portions of Lots 4 and 5 of Copenhill. 905 Bernina is also comprised of portions of Lots 4 and 5, along with portions of Lots 8 and 9 and the entirety of Lot 10 of Copenhill. The contested alley runs along both 331 Elizabeth and 905 Bernina and was depicted on the 1915 Copenhill plat.

(a) Agreements and conveyances prior to divergence of title of 331 Elizabeth and 905 Bern ina.

In 1926, S. J. Pattillo acquired Lots 4 through 10 of Copenhill. Two years earlier, Pattillo had entered into an agreement with the owner of a neighboring parcel, Milton Klein, to build a railroad spur track that would run through Klein’s property and the property that Pattillo later acquired and link with a nearby railroad line. (This agreement states, apparently erroneously, that Pattillo already owned the property. The parties did not file this agreement until 1927, after Pattillo had acquired the property) Klein and Pattillo’s agreement, the “Track Agreement,” gave Pattillo the right to use the portion of the spur track on Klein’s property and gave Klein the right to use the portion of the spur track on the property Pattillo later acquired, “as long as the said track, or any part of it, is maintained.” The Track Agreement was subsequently superseded by a July 18, 1928 agreement that concerned realigning the spur track within the lots.

On November 9, 1927, Pattillo conveyed Lots 4 through 7 of Copenhill to Enterprise Development Company (“EDC”) pursuant to an indenture, and EDC conveyed title in those lots back to Pattillo pursuant to a deed to secure debt, leaving EDC with a right of possession and redemption in the property. See generally Rhodes v. Anchor Rode Condo. Homeowner’s Assn., 270 Ga. 139, 139-140 (1) (508 SE2d 648) (1998) (discussing property rights held by grantor and grantee of deed to secure debt); Turner Advertising Co. v. Garcia, 252 Ga. 101, 102 (1) (311 SE2d 466) (1984) (same). The spur track ran across the property conveyed to EDC. The indenture by which Pattillo conveyed this property to EDC provided, as to the spur track:

There is now a spur railroad track across said lots, and the said S. J. Patillo reserves as to said four lots an easement therein for railroad purpose said easement to be used as appurtenant to the property lying across the alley and southeast of the above lots, said Patillo reserving the right to use said railroad track as they now exist should he purchase said adjoining property, and further reserving the right to sell said railroad trackage rights to any future owner of said adjoining property reserving such trackage rights to be used in common with the owner of the above described tract and the owner of the said adjoining tract.
The grantee [EDC] reserves and retains a perpetual right to the use of said spur railroad track. This deed is made subject to [the Track Agreement], concerning said spur track, said agreement being recorded in the office of the clerk of the superior court of Fulton County, Georgia.

This indenture also described the alley on the southern border of Lot 4 and referenced the 1915 recorded plat depicting that alley. The deed to secure debt from EDC to Pattillo also referred to the spur track, stating that it was “subject to the restriction and the reservation of easement in spur track referred to in [the] deed from S. J. Pattillo to [EDC] dated November 9, 1927.” In a separate deed executed that same day, Pattillo also conveyed Lots 8 through 10 of Copenhill to EDC.

Pattillo acquired two adjoining lots (Lots 2 and 3 of Copenhill) on February 15,1928, and on May 1,1928, he conveyed those lots to EDC through a warranty deed that stated that Pattillo “also convey[ed] right of way of railroad o[n] adjoining lot.” That same day, although EDC had not yet satisfied the debt to Pattillo that had encumbered Lots 4 and 5, EDC conveyed a secured interest in several lots, including Lots 4 and 5 and the other property that now comprises 331 Elizabeth and 905 Bernina, to Milton Dargan in an indenture that functioned as a deed to secure debt. So as of May 1,1928, Dargan had title to the property that now comprises 331 Elizabeth and 905 Bernina, over which ran the spur track across Lots 4 and 5, and EDC had a right of possession and redemption in that property and a “perpetual right to the use of said spur track” in Lots 4 and 5, by virtue of the November 1927 conveyances of those lots between Pattillo and EDC, that was subject to Dargan’s secured interest. Separately, EDC had a “right of way of railroad” in Lots 4 and 5, by virtue of Pattillo’s warranty deed conveying Lots 2 and 3 to EDC, that was not subject to Dargan’s secured interest.

On October 26, 1928, Dargan conveyed his interest in a portion of the property back to EDC through a quitclaim deed. The portion conveyed back to EDC, 331 Elizabeth, was comprised of parts of Lots 4 and 5 and was adjacent to but did not include the spur track; the quitclaim deed that effected this conveyance contained a metes and bounds legal description that included the land on which the 331 Elizabeth building now stands but not the land on which that building’s attached platform stands. (The parties dispute whether the building and platform existed at the time of this October 26,1928, conveyance. That dispute is addressed in Division 2, infra.)

Although Dargan conveyed his security interest in 331 Elizabeth back to EDC in the quitclaim deed, he retained his security interest in the remaining portion of the property, 905 Bernina, which contained the spur track. So as of October 26, 1928, EDC had title to 331 Elizabeth; a right of possession and redemption in 905 Bernina; a “perpetual right to the use of said spur track” over 905 Bernina by virtue of the November 1927 conveyances between Pattillo and EDC of the property that became 331 Elizabeth and 905 Bernina; and a “right of way by railroad” over 905 Bernina by virtue of the May 1928 conveyance of Lots 2 and 3 from Pattillo to EDC. And Dargan had title to 905 Bernina pursuant to the May 1, 1928 deed to secure debt. At that point, title to 331 Elizabeth and 905 Bernina diverged, and from that point each property has a separate chain of title leading to the present litigants — 331 Elizabeth to Smith/Burns, and 905 Bernina to the Co-op.

(b) Chain of title for 331 Elizabeth.

On November 1, 1928, six days after receiving title to 331 Elizabeth from Dargan through the quitclaim deed, EDC conveyed that property, including all of EDC’s rights in the spur track, to Emory University in a deed to secure debt. That deed stated that the property was improved with a two-story brick building.

On February 13, 1930, EDC satisfied its security deed to Emory University and, by warranty deed, conveyed to Ballard & Ballard Company both title to 331 Elizabeth and “the perpetual right to use, in common with the owners of other properties abutting thereon, the spur railroad track adjacent to, and northeast of, the property hereby conveyed.” The warranty deed stated that two instruments created this right: the 1924 Track Agreement between Klein and Pattillo and the November 1927 conveyance between Pattillo and EDC.

A chain of title exists in 331 Elizabeth from Ballard & Ballard Company, through several other persons or entities, to plaintiffs Gerald Burns and David Smith, who acquired the property in 1986, and then to their limited liability corporation, plaintiff Smith/Burns, which acquired the property in 2009. Like the deed from EDC to Ballard & Ballard Company, the other deeds in this chain also contain the language conveying the perpetual right to use the spur track, except for the 1986 warranty deed conveying the property to Burns and Smith and the 2009 quitclaim deed in favor of Smith/Burns.

(c) Chain of title for 905 Bern ina.

On April 27, 1929, Dargan transferred his remaining security interest in 905 Bernina to Fannie Lee Davidson through a quitclaim deed. Subsequently, EDC defaulted, and Davidson foreclosed on 905 Bernina and conveyed it to Claude A. McGinnis through a deed under power of sale dated December 3, 1929. A chain of title exists in 905 Bernina from McGinnis, through several other persons or entities, to the defendant Co-op. Defendants Thomas and Janet Berry have an ownership interest in the defendant Co-op and have lived in a residential unit at 905 Bernina since 1995.

(d) Use of the platform, spur track, and alley.

The parties became neighbors when defendants Thomas and Janet Berry moved into 905 Bernina in 1995. When the litigation began, plaintiffs Burns and Smith both used the second floor of 331 Elizabeth for their commercial photography studios, and Smith also lived on that floor. The only access to the second floor of 331 Elizabeth was through the spur track and platform at the rear of the property The plaintiffs used the portion of the alley next to 331 Elizabeth to access the spur track, and they used the spur track to access the second floor of their building. They parked vehicles on the spur track and used it for activities connected with their photography businesses.

In 2001, the defendants began to construct a garden in the portion of the alley next to 905 Bernina. They built permanent structures in that portion of the alley as part of the garden. They also built a retaining wall that blocked vehicular access to that portion of the alley.

In 2011, defendants Thomas and Janet Berry became concerned about the use another neighbor was making of the spur track, which included using circular saws and driving a forklift into the area. They also were bothered by an increase in people using the spur track as a cut-through. In an effort to stop those uses, the defendants built a fence around a portion of the spur track. They placed the fence on part of the platform attached to 331 Elizabeth. The fence blocked vehicular access to the spur track.

2. Rights in the platform.

The special master recommended that the trial court enter an order declaring that plaintiff Smith/Burns has fee simple title to the land on which the platform sits, declaring that the defendant Co-op’s property line extends out and up to the edge of the platform, and requiring the defendants to remove all structures located on the platform. The trial court adopted this recommendation. We find no error.

Our analysis of this issue turns on whether the October 26, 1928 quitclaim deed from Dargan to EDC, which conveyed title to 331 Elizabeth, also conveyed title to the platform attached to the 331 Elizabeth building, even though the metes and bounds legal description in that deed did not include the platform. “Under our law, real property includes not only the land but all improvements thereon[, and] unlike items of personalty, the realty and the improvements thereon cannot be separated from each other.” Fulton County Bd. of Assessors v. McKinsey & Co., 224 Ga. App. 593, 594 (1) (481 SE2d 580) (1997) (citation and punctuation omitted). See OCGA § 44-1-2 (a) (defining “realty” and “real estate” to include “[a] 11 lands and the buildings thereon” and “[a] 11 things permanently attached to land or to the buildings thereon”). “Fixtures are also included in this classification, defined as ‘anything which is intended to remain permanently in its place even if it is not actually attached to the land.’ OCGA § 44-1-6 (a).” Fulton County Bd. of Assessors, 224 Ga. App. at 594 (1). “Anything intended to remain permanently in its place, though not actually attached to the land . . . , is a part of the realty and passes with it.” Brigham v. Overstreet, 128 Ga. 447, 449-450 (57 SE 484) (1907) (citation omitted).

The evidence shows that the platform was installed when the building at 331 Elizabeth was built; among other things, the platform extends approximately one foot inside the building (and therefore one foot inside the land described in the quitclaim deed from Dargan to EDC). This indicates that the railroad platform is “attached to and form[s] an integral part of the [331 Elizabeth] building, and [its] removal would do injury to the realty.” Fulton County Bd. of Assessors, 224 Ga. App. at 594 (1) (punctuation omitted). See Consolidated Warehouse Co. v. Smith, 55 Ga. App. 216, 219 (189 SE 724) (1937). As such, the platform comprised a part of the 331 Elizabeth real estate and passed with it when Dargan conveyed the real estate to EDC in the quitclaim deed. Fulton County Bd. of Assessors, 224 Ga. App. at 594 (1); Brigham, 128 Ga. at 449-450.

Even if Dargan could have reserved his interest in the platform while conveying his interest in the building to which it was attached to EDC, he did not do so. The terms of his quitclaim deed to EDC are unambiguous; that deed conveys Dargan’s interest in 331 Elizabeth to EDC with no reservation of any rights in the attached platform. And there is no evidence that Dargan reserved his interest in the platform in any collateral contract. Consequently, “the strict rule of the common law obtains and all fixtures actually or constructively annexed to the realty pass by conveyance of the freehold although it may describe only the land.” Hargrove v. Jenkins, 192 Ga. App. 83, 84 (383 SE2d 636) (1989) (citations omitted). See also Power v. Garrison, 141 Ga. 429, 434 (81 SE 225) (1914); Wolff v. Sampson, 123 Ga. 400, 402 (51 SE 335) (1905). Under this rule, Dargan’s quitclaim deed conveyed title to the platform as part of the realty described in that deed.

We recognize that this case involves unusual facts. The most analogous case we have found is In the Matter of Huckabee Auto Co., 58 BR 826 (Bankr. M.D. Ga. 1986). In that case, the court considered whether the grantee of a deed to secure debt obtained an interest in ramps that were attached to a parking garage on the property conveyed by that deed but extended into space beyond the property’s boundaries. The Huckabee court found that, under Georgia law, the deed did convey a security interest in the ramps, reasoning that the garage was permanently affixed to the land described in the deed to secure debt and became a part of that realty, and that the ramps were an integral part of the garage and thus fixtures that also constituted a part of that realty. Id. at 830. We find the reasoning in Huckabee persuasive. Applying that reasoning here, the 331 Elizabeth building was permanently affixed to the land described in the quitclaim deed and the platform was an integral part of that building; so both the building and the platform constituted part of the 331 Elizabeth realty that Dargan conveyed to EDC in the quitclaim deed.

The defendants argue that the 331 Elizabeth building and platform did not exist on October 26,1928, when Dargan conveyed his interest in 331 Elizabeth to EDC through the quitclaim deed. But only six days later, on November 1, 1928, EDC conveyed a security interest in 331 Elizabeth to Emory University in a deed to secure debt that states that the premises were “improved with a two story brick building[.]” That same day EDC conveyed a second security interest in 331 Elizabeth to Pattillo in a deed to secure debt that described the 331 Elizabeth property, stated that there was “a two story building upon said property,” and then stated: “There is included in this conveyance the area upon which is located the loading platform adjoining the above described property on the northeast.” The defendants correctly note that these subsequent deeds are not evidence of Dargan’s intent when he executed the quitclaim deed. But the November 1 deeds referring to the building and/or the platform are evidence that the platform attached to the building at 331 Elizabeth existed when, four days earlier, Dargan conveyed his interest in 331 Elizabeth to EDC.

Nevertheless, the defendants argue that there is evidence that the building and platform did not exist when Dargan signed the quitclaim deed on October 26, 1928. They point to a plat of EDC’s property, dated May 18, 1928, and revised on October 19, 1928, and April 16, 1929, which depicted the 331 Elizabeth building as “under construction” and did not indicate the presence of a platform. This plat does not create a factual question regarding the existence of the platform that precludes summary judgment for the plaintiffs. The November 1, 1928 deeds referring to a building on 331 Elizabeth or a platform adjoining 331 Elizabeth are direct and positive evidence that the building and attached platform existed as of November 1, 1928. Where

direct and positive [evidence] is presented on an issue, the opposing party [on summary judgment] must show some other fact which contradicts the [evidence]. If this other fact is direct evidence, that is sufficient to allow the case to go to the jury; if the other fact is circumstantial evidence, it must be inconsistent with the [movant’s] evidence, or if consistent, it must demand a finding of fact on the issue in favor of the [nonmovant].

Haley v. Regions Bank, 277 Ga. 85, 88-89 (1) (586 SE2d 633) (2003) (citations and punctuation omitted). The plat to which the defendants point is not direct evidence as to whether or not the building and platform existed on November 1, 1928, but rather circumstantial evidence. In the face of direct evidence that the building and platform existed on November 1, 1928, the plat does not demand a finding that they did not exist. At most, a finding that they did not exist may be inferred from the plat. “In passing upon a motion for summary judgment, a finding of fact which may be inferred but is not demanded by circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists.” Haley, 277 Ga. at 89 (1) (citation and punctuation omitted).

For these reasons, we affirm the grant of partial summary judgment to the plaintiffs on the issues relating to the platform (both declaratory and injunctive relief). Given this disposition, we need not consider the parties’ arguments about whether, alternatively, the plaintiffs obtained title to the platform through adverse possession.

3. Rights in the spur track.

The special master recommended that the trial court enter an order declaring that “an express, nonexclusive easement in the spur track[ ] . .. exists for the benefit of the 331 Elizabeth Street property and its owners[,]” and requiring the Co-op and the Berrys to remove all structures blocking the easement, including the fences. The trial court adopted this recommendation. We find no error.

An express easement, also known as an easement acquired by grant, Whipple v. Hatcher, 283 Ga. 309, 310 (658 SE2d 585) (2008), is an easement “expressly agreed upon by contract between a landowner and another[.]” 1 Pindar’s Ga. Real Estate Law & Procedure § 8:17 (6th ed. 2004) (footnote omitted). “In interpreting an express easement, the rules of contract construction apply The construction of a contract is a question of law for the court. The cardinal rule of construction is to ascertain the parties’ intent.” Irvin v. Laxmi, Inc., 266 Ga. 204, 205 (1) (467 SE2d 510) (1996) (citations omitted). See also Pichulik v. Ball, 270 Ga. App. 656, 660 (1) (607 SE2d 247) (2004).

EDC purported to convey an easement for “the perpetual right to use . . . the spur railroad track” when, on February 13, 1930, it sold 331 Elizabeth to Ballard & Ballard Company, the plaintiffs’ predecessor-in-interest. The question is whether EDC had any easement rights to convey at that time. We conclude that it did, as a matter of law, and that those rights ultimately passed to Ballard & Ballard Company’s successor-in-interest, Smith/Burns.

EDC obtained an easement in the spur track through its November 9, 1927 transactions with Pattillo. As described above, on that date EDC bought Lots 4 and 5 of the Copenhill property from Pattillo and then conveyed title in those lots back to Pattillo through a deed to secure debt. The language of the instruments in both of those conveyances expressly reserved in EDC an easement in the spur track, stating that EDC had the “perpetual right to the use of said spur railroad track.” The defendants assert that EDC did not obtain an easement in this transaction, because it could not have an easement in property that it owned. While it is true that “no man can have an easement in his own land,” Elrod v. Elrod, 272 Ga. 188, 190 (2) (526 SE2d 339) (2000) (citation and punctuation omitted), the result of the November 9, 1927 transaction was that Pattillo, not EDC, held title to the property, and EDC merely had a right to possession and redemption. See Rhodes, 270 Ga. at 139-140 (1). There was not the “union of an absolute title to and possession of the dominant and servient estates” required to extinguish an easement. Fulton County v. City of Sandy Springs, 295 Ga. 16, 18, n. 3 (757 SE2d 123) (2014) (citation and punctuation omitted). Accord Tew v. Hinkle, 273 Ga. App. 12 (1) (614 SE2d 160) (2005). EDC’s reservation of a perpetual right to use the spur track, as part of its conveyance of title in the property to Pattillo pursuant to a deed to secure debt, created an easement. And while EDC later regained title to the portion of Lots 4 and 5 that constituted 331 Elizabeth, it never regained title to the portion that constituted 905 Bernina, over which the spur track runs.

The defendants argue that any easement that 331 Elizabeth had in the spur track was limited to railroad use, and that the plaintiffs’ current use of the spur track exceeds the scope of the easement. We disagree. A review of the instruments involved in the 1927 conveyances between EDC and Pattillo, which created EDC’s easement in the spur track, shows that EDC’s easement went beyond mere use of the spur track for railroad purposes. In the 1927 conveyances, EDC reserved the “right to use” the spur track, with no qualification as to the type of use. In contrast, in those same conveyances Pattillo reserved a more narrow right to use the spur track “for railroad purposes[.]” Considering these instruments as a whole, see Hernandez v. Whittemore, 287 Ga. App. 251, 252-253 (651 SE2d 180) (2007), we construe EDC’s easement in the spur track to be broad enough to encompass the plaintiffs’ uses. See Parris Properties v. Nichols, 305 Ga. App. 734, 739 (1) (b) (700 SE2d 848) (2010) (the manner of use within the physical boundaries of an existing easement may change); Lanier v. Burnette, 245 Ga. App. 566, 569 (2) (538 SE2d 476) (2000) (“The grant of an easement impliedly includes the authority to do those things which are reasonably necessary for the enjoyment of the things granted.”).

Finally, the defendants argue that the plaintiffs’ predecessor-in-interest, William Erb, abandoned any express easement in the spur track by obtaining a payment from the Department of Transportation to relinquish his rights to access the main railroad line in connection with a potential condemnation and by placing a steel bridge over the spur track, rendering it unusable for railroad purposes. But as discussed above, the express easement granted rights beyond mere railroad use. And Erb’s actions did not manifest a clear intent to abandon the use of the spur track for ingress and egress to the back of the 331 Elizabeth property. See Whipple, 283 Ga. at 310 (law does not favor extinguishment of easements, and easement acquired by grant is not extinguished without clear, unequivocal, and decisive evidence of an intent to abandon it). To the contrary, Erb continued to use the spur track for those purposes. The defendants also argue that Erb’s failure to mention the easement in his later conveyance of the property constituted “abandonment as a matter of law,” but they offer no citation to authority in support of this assertion.

For these reasons, we affirm the grant of partial summary judgment to the plaintiffs on the issues relating to the spur track (both declaratory and injunctive relief). Given this disposition, we need not consider the parties’ arguments about whether, alternatively, the plaintiffs obtained an easement in the spur track by prescription.

4. Rights in the alley.

The special master recommended that the trial court enter an order declaring that plaintiff Smith/Burns does not have an express easement in the alley Elsewhere in her report, the special master concluded that Smith/Burns has “an ownership right to the [ajlley up to their property line” that extended “to the centerline of the portion of the alley abutting [331 Elizabeth].” See generally Johnson & Co. v. Arnold, 91 Ga. 659, 667 (18 SE 370) (1893) (“the bounding of a tract by the edge or margin of a road will pass the fee to the middle line of the road when the vendor owns the fee on both sides”). And the special master concluded that plaintiff Smith/Burns has “any easement rights that have accrued because of [its] and other adjacent owners’ use of the [a]lley. However, [plaintiff Smith/Burns] ha[s] no right in the [a]lley insofar as it further extends [to abut 905 Bernina]. Only [defendants and unknown adjacent property owner(s) have an interest therein[.]” The trial court adopted the report and its recommendations.

The trial court erred in declaring that plaintiff Smith/Burns has no express easement in the alley. The alley was depicted on the 1915 recorded plat of the Copenhill property and plaintiff Smith/Burns acquired 331 Elizabeth in a chain of title descending from the original developer in instruments that made reference to the recorded plat. See Goodson v. Ford, 290 Ga. 662, 665 (3) (725 SE2d 229) (2012); Smith v. Clay, 239 Ga. 220, 221 (236 SE2d 346) (1977); Zywiciel v. Historic Westside Village Partners, 313 Ga. App. 397, 399-400 (1) (721 SE2d 617) (2011). This chain of title gave Smith/Burns a complete right to an easement in the entire alley See Owens Hardware Co. v. Walters, 210 Ga. 321 (1) (80 SE2d 285) (1954).

The defendants argue that plaintiff Smith/Burns abandoned its easement in the portion of the alley abutting 905 Bernina. See OCGA § 44-9-6 (“An easement may be lost by abandonment or forfeited by nonuse if the abandonment or nonuse continues for a term sufficient to raise the presumption of release or abandonment.”). But because Smith/Burns’s easement in the alley arose from a grant, it cannot lose the easement by mere nonuse. See Smith v. Gwinnett County, 248 Ga. 882, 884 (2) (a) (286 SE2d 739) (1982). “The law does not favor the extinguishment of easements, and an easement acquired by grant is not extinguished merely by nonuse; there must be clear, unequivocal, and decisive evidence of an intent to abandon the easement.” Whipple, 283 Ga. at 310 (citations omitted). Accord Sermons v. Agasarkisian, 323 Ga. App. 642, 645 (1) (746 SE2d 596) (2013).

Stated otherwise, where a right of way or other easement is acquired by grant or deed, no duty is thereby cast upon the owner of the dominant estate thus created to make use thereof or enjoy the same as a condition to the right to retain his interest therein, and the mere non-use[ ] of such an easement for a period however long will not amount to an abandonment. The mere fact that one does not immediately begin to exercise his right of use under an easement, or that he delays doing so for a number of years, would not occasion a loss of the easement. His right being complete, he could not be deprived of it except by express abandonment, or by such conduct as would be tantamount to the same.

Sermons, supra at 645-646 (1) (citation and punctuation omitted).

We noted in Sermons that “there appears to be some conflict in the Supreme Court of Georgia’s authority on whether an express easement maybe abandoned by nonuse for a period of 20 years[.]” Id. at 646 (1) & n. 3 (citing authority on both sides of conflict). As in Sermons, however, we need not address this issue, because it is undisputed that less than 20 years passed between the defendants’ construction of the first obstruction in the alley and plaintiff Smith/ Burns’s objection to the obstructions. See id. at 646-647 (1); Smith v. Bentley, 70 Ga. App. 13, 15-16 (27 SE2d 252) (1943).

So for the defendants to prevail on their claim for partial summary judgment on the issue of plaintiff Smith/Burns’s right to an easement in the alley, and to avoid partial summary judgment in the plaintiffs’ favor on this issue, the defendants were required to point to evidence that plaintiff Smith/Burns either expressly abandoned its easement in the alley or engaged in conduct, beyond mere nonuse, that was tantamount to an express abandonment. See Duffy St. S. R. O. v. Mobley, 266 Ga. 849 (1) (471 SE2d 507) (1996); Hardigree v. Hardigree, 244 Ga. 830, 831 (2) (262 SE2d 127) (1979); Boling v. Golden Arch Realty Corp., 242 Ga. 3, 4 (247 SE2d 744) (1978). Cf. Aggregate Supply Co. v. Sewell, 217 Ga. 407, 411 (122 SE2d 580) (1961) (treating issue of plaintiff’s abandonment of rights in real property as affirmative defense against plaintiff’s assertion of such rights). Although intent to abandon an easement often is an issue for the factfinder, see Duffy St. S. R. O., 266 Ga. at 849 (1), the issue can be resolved on summary judgment if there is not clear, unequivocal, and decisive evidence of intent. See Whipple, 283 Ga. at 311.

The defendants have pointed to no evidence that plaintiff Smith/ Burns expressly abandoned its easement in the alley. They argue, however, that the plaintiffs’ actions, as a matter of law, clearly manifested an intent to abandon that portion of the alley, adjacent to the building on Co-op’s property, on which the defendants built the garden. In considering this argument, we assume without deciding that it is possible for one to abandon a portion of an express easement in a private alley that arose under the circumstances of this case. But see Plantation Pipe Line Co. v. Milford, 257 Ga. App. 709, 712 (2) (b) (572 SE2d 67) (2002) (“The trial court cites no authority for the proposition that an express easement may be partially abandoned. We have found none, but there is ample authority to the contrary”) (citations omitted); 1 Pindar’s Ga. Real Estate Law & Procedure § 8:31, n. 1 (6th ed. 2004) (“An express easement may not be partially abandoned.”) (citation omitted).

But the defendants primarily point to evidence of mere nonuse. They argue that the evidence shows the plaintiffs were “not concerned about using the [ajlley” when they acquired 331 Elizabeth, that the plaintiffs remain “not concerned with using the [ajlley,” and that the portion of the alley at issue “has not been used as an alley” and “physically cannot be used as an alley” in its current condition due to overgrowth and elevation. As discussed above, this evidence of nonuse, without more, is insufficient to show abandonment.

The defendants also point to the plaintiffs’ failure to contemporaneously object when, beginning in 2001, the defendants built obstructions in the alley. But so long as the person with the dominant estate objects to the obstructions within the 20-year prescriptive period, his failure to make an earlier objection is not, standing alone, evidence of an intention to abandon the easement. Smith, 70 Ga.App. at 15-16. “[Wjhere one has an easement in an alley, created by grant, he can have obstructions in the alley removed, although he suffers no damage or inconvenience therefrom.” Id. at 15 (emphasis omitted).

The defendants also point to the plaintiffs’ failure to maintain the contested portion of the alley in a usable condition; and the fact that the plaintiffs sometimes parked vehicles in the alley and allowed others to do the same. This conduct, however, is not tantamount to an express abandonment in the easement; rather, it is tantamount to nonuse. It shows that the plaintiffs were not exercising their rights in the easement, not that they intended to forever abandon those rights. See Houston v. Flory, 329 Ga. App. 882, 889 (2), n. 6 (766 SE2d 227) (2014) (nonuse is the failure to exercise a right). This evidence simply does not clearly, unequivocally, and decisively show that the plaintiffs intended to abandon the easement.

Cases cited by the defendants do not require a different conclusion. In Duffy St. S. R. O. v. Mobley, 266 Ga. App. at 849-850 (1), our Supreme Court upheld a jury finding that an easement had been abandoned where there was evidence showing that a predecessor to the party claiming the easement had blocked it with a fence, and that the easement had not been used by anyone with legitimate reasons to use it for more than 20 years. And in Pleasure Bluff Dock Club v. Poston, 294 Ga.App. 318, 319-320 (2) (670 SE2d 128) (2008), we found there was evidence of more than nonuse of an easement in a natural boat landing, where the holders of the easement stopped using the landing and began using a common dock instead. Here, by contrast, the defendants point to no evidence that the plaintiffs had blocked the contested portion of the alley (aside from temporarily parking vehicles near the retaining wall built by the defendants) or previously had begun to use another route in lieu of the contested portion of the alley

5. Motion to dismiss.

Plaintiff Smith/Burns argues that the trial court erred in dismissing, for failure to state a claim, the trespass claim that Smith/ Burns had asserted in its initial and first amended complaints. But after the trial court made this ruling, Smith/Burns further amended its complaint, again asserting a claim for trespass, and that trespass claim has not been dismissed and remains pending below. Consequently, Smith/Burns’s claim of error is moot.

Decided June 27, 2017

Reconsideration denied July 13, 2017

Weissman, Nowack, Curry & Wilco, John G. Nelson, for 905 Bernina Avenue Cooperative, Inc. et al.

Sutherland Asbill & Brennan, W. Henry Parkman, Tracey K. Ledbetter, for Smith/Burns LLC et al.

Judgments affirmed in part, reversed in part, and vacated in part, and case remanded.

Barnes, P. J., and Mercier, J., concur.

       In some of the instruments relating to the property, Pattillo’s name is spelled “Patillo.'

       “At common law there existed a distinction between an indenture and a deed under which a deed was considered to be a conveyance made by one person only, whereas two or more persons were parties to an indenture. This common-law distinction is now obsolete.” Milner v. Bivens, 255 Ga. 49, 50 (1) (335 SE2d 288) (1985) (citation and footnote omitted).

       It appears that EDC satisfied the debt to Pattillo secured by the November 9, 192 7, deed to secure debt a few days after EDC conveyed a security interest in Lots 4 and 5 to Dargan.


author: Mercier, Judge. Barnes, Presiding Judge,

text:
    A17A0321.
    LAW et al. v. CHEMTALL, INC.
    (802 SE2d 408)
   Mercier, Judge.

Michael Law and his wife, Kristin Law, appeal the trial court’s order granting a directed verdict to Chemtall, Inc. (“Chemtall”). The underlying facts of this case are undisputed. Chemtall operates a chemical plant. In August 2011, Chemtall contracted with Daybreak Insulation, Inc. (“Daybreak”), to work on an insulation project in an area of Chemtall known as the “tank farm.” Michael Law (hereinafter “Law”) was an employee of Daybreak and was assigned to work on the insulation project in the tank farm. On August 30, 2011, while working on the project, Law descended a scaffolding ladder and stepped in a puddle of liquid that he thought was water. He slipped and the liquid splashed onto his leg. Law testified that he had walked through the puddle “all day” and for several days before the incident. Law stated that he had “encountered the puddle the whole time we was [sic] in there.” After the liquid splashed on him, Law walked to a break room and began eating his lunch. About 10 to 15 minutes later, he began experiencing a burning sensation in his leg. He went to a water spigot and began washing his leg. Law told a supervisor what happened. The supervisor told Law to wash off in the shower, and Law complied. He sought medical treatment the next day.

The chemical sodium hydroxide was present at the worksite, and Chemtall had placed a sign advising workers that sodium hydroxide was present and hazardous. The puddle in which Law had slipped was sodium hydroxide, and as a result of his contact with the chemical, Law suffered severe chemical burns on his leg. Law testified that he knew that if a pipe at a chemical plant leaked, a worker could be exposed to chemicals. He also understood that if he were exposed to chemicals, specifically if chemicals got on his skin, he could be harmed. Law had also undergone safety training and had been instructed that if he were exposed to a chemical, he “needed to go to the shower area and wash it off.”

The Laws filed suit alleging negligence on the part of Chemtall. Chemtall filed a motion for summary judgment, but the trial court did not rule on the motion. The case was called for trial in November 2015. At the conclusion of the Laws’ case-in-chief, Chemtall made a motion for directed verdict, asserting that Chemtall fulfilled its duty to warn the independent contractor of the hazards. The trial court granted the motion. In their sole enumeration of error, the Laws contend that the trial court erred in granting Chemtall’s motion for directed verdict. The contention is without merit.

“[A] directed verdict is appropriate only if there is no conflict in the evidence as to any material issue and the evidence introduced, construed most favorably to the party opposing the motion, demands a particular verdict.” St. Paul Mercury Ins. Co. v. Meeks, 270 Ga. 136, 137 (1) (508 SE2d 646) (1998). “In reviewing the grant of a motion for a directed verdict, this Court applies the ‘any evidence’ test and construes the evidence in the light most favorable to the losing party.” Cottrell v. Smith, 299 Ga. 517, 518 (I) (788 SE2d 772) (2016)).

In Georgia

[i]t is well settled that an owner or occupier of land is liable in damages to invitees who come upon his land for injuries occasioned by his failure to exercise ordinary care in keeping the premises safe. .. . Under this principle is found the duty of an owner of premises to an individual contractor and his employees who lawfully come upon the premises in the performance of a contract between the owner and the contractor because the independent contractor and his employees are invitees. Thus, an owner having work done on his premises by an independent contractor, who has actual or constructive knowledge of potential dangers on the premises, owes a duty to the contractor to give warning of, or use ordinary care to furnish protection against, such dangers to the contractor and his employees who are without actual or constructive notice of the dangers, and which could not be discovered by them in the exercise of ordinary care.

West v. Briggs & Stratton Corp., 244 Ga. App. 840, 844 (536 SE2d 828) (2000) (citation and punctuation omitted; emphasis supplied). Further,

[a]¡though property owners owe a duty to their own invitees, they owe no such duty to employees of or others invited upon the premises by an independent contractor hired to do work on the premises if two conditions exist: 1) the owner has relinquished possession of the premises, in whole or in part and 2) the owner does not have the right and does not actually control or direct the work done.

McClure v. Equitable Real Estate Investment Mgmt., 195 Ga. App. 54, 55 (392 SE2d 272) (1990) (citations omitted). Therefore, unless Chemtall met both prongs of the McClure test, it owed a duty to the independent contractor, Daybreak.

The record contains some evidence that Chemtall did not relinquish possession of the property At the time of the incident, Chemtall had a “Process Safety, Health and Environmental Orientation Training Program Booklet” that it required contractors, such as Daybreak, to follow. The booklet states:

It is required that the SNF Operations Manager jointly with the Contractor Working Supervisor Representative and the SNFHC Maintenance/Engineer Manager if involved, must be in the area where the working activities are to be conducted; determine if acceptable conditions exist to authorize and approve working activities or terminate them.

(emphasis in original). “[Possession may be defined as having personal charge of or exercising the rights of management or control over the property in question.” West, supra at 845 (citation and punctuation omitted). The requirement in the training program booklet that a Chemtall employee be in the area where the Daybreak employees were working suggests that Chemtall retained partial possession of the premises where Daybreak was working. Because Chemtall possibly retained possession of a portion of the premises, evidence exists that Chemtall did not meet one of the two prongs of the McClure test. “Only if both conditions [of the McClure test] are satisfied is the owner relieved of any duty toward invitees.” West, supra at 846. As the evidence was in conflict regarding whether Chemtall relinquished possession of the property, the first prong of the McClure test was not satisfied. Thus, we need not consider the second prong of the McClure test.

While Chemtall was not relieved of its duty to Law under the McClure test, Chemtall was still entitled to a directed verdict because the evidence was undisputed that it discharged its duty It is well settled that “[f]ull knowledge by [an] independent contractor of the dangers should and will be held to discharge the landowner’s alternative duty to warn the employees.” McKinney v. Regents of the Univ. System of Ga., 284 Ga. App. 250, 252 (1) (643 SE2d 736) (2007) (citation and punctuation omitted). Evidence was indeed presented that Chemtall warned Daybreak of the potential chemical dangers present in the tank farm, such that Daybreak had full knowledge of the potential hazards. This included posting a sign concerning the presence and dangers of sodium hydroxide and mandating that Daybreak give its employees a safety training program that informed employees of potential fire, explosion, and toxic release hazards at the worksite. In addition, the “Safe Work Permit” issued to Daybreak by Chemtall and signed by one of Daybreak’s supervisors on the day of the incident stated:

The contractor has performed its daily inspection and has evaluated and assured that their employees know and will follow the safety rules and safe-work practices of the facility and the contractor will advise the facility manager of any unique hazards presented by or hazards found during the contractor’s work.

Notably, contrary to the dissent’s assertion that Chemtall’s training program booklet (“contractor safety manual”) did not mention the presence of puddled or standing chemicals outside of storage tanks, the booklet did state: “Potential causes of Fire, Explosion, and Toxic Release incidents may be any one or a combination of the following: Unintentional Spills/Releases.” As noted above, Chemtall had placed a sign advising workers that sodium hydroxide was present and hazardous.

Additionally, Law had received training regarding chemicals that were present at Chemtall and their potential hazards. He knew that he was required to wear long pants because liquids could splash on him. Law also knew that there were hazardous chemicals on the site and that if he were exposed to a chemical, he needed to wash off the chemical. Furthermore, the evidence establishes that Law himself had prior knowledge of the puddle’s existence.

The Laws failed to produce any evidence to demonstrate that Daybreak did not have full knowledge of the potential dangers presented in the tank farm. Thus, there is no conflict in the evidence as to this material issue, and when construed most favorably to the Laws, the evidence demands a verdict in favor of Chemtall. See St. Paul Mercury Ins. Co., supra; Cottrell, supra. Although the trial court did not explicitly address this issue in its order, Chemtall raised the argument during the hearing on the motion for directed verdict and “the grant of a motion for directed verdict will be affirmed if right for any reason.” Kohler v. Van Peteghem, 330 Ga. App. 230, 239 (4) (767 SE2d 775) (2014). Accordingly, the judgment of the trial court granting a directed verdict in favor of Chemtall is affirmed.

Judgment affirmed.

Dillard, P. J., Andrews, Rickman, Reese and Self, JJ., concur. Barnes, P. J., Miller, P. J., andMcMillian, J., dissent.

Barnes, Presiding Judge,

dissenting.

I agree with the majority’s analysis and conclusion regarding Chemtall’s duty to Law under the McClure test. However, the majority’s analysis regarding Law’s knowledge about the sodium hydroxide puddle, while persuasive, is not convincing, and thus, I must respectfully dissent. Although a close question, Chemtall was not entitled to a directed verdict because there was some evidence disputing whether Law possessed “full knowledge” of the potential chemical hazards at the tank farm. See McKinney v. Regents of the Univ. System of Ga., 284 Ga. App. 250, 252 (1) (643 SE2d 736) (2007). See generally Chrysler Group v. Walden, 339 Ga. App. 733, 735-736 (1) (792 SE2d 754) (2016) (“In considering a ruling on a motion for directed verdict, the evidence must be construed most favorably to the party opposing the motion.”) (citation and punctuation omitted). This was an issue of fact best determined by the jury. Indeed, because the jurors are “the sole and exclusive judges of the weight and credit given the evidence,” we must construe the evidence with “every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict.” (Citation and punctuation omitted.) Wood v. B&S Enterprises, 314 Ga. App. 128, 135 (5) (723 SE2d 443) (2012).

Although “[f]ull knowledge by the independent contractor of the dangers should and will be held to discharge the landowner’s alternative duty to warn the employees,” (citation and punctuation omitted) McKinney, 284 Ga. App. at 252 (1),

[t]he knowledge requirement does not refer to a comprehension of general, non-specific risks. Rather, the knowledge that a plaintiff who assumes the risk must subjectively possess is that of the specific, particular risk of harm associated with the activity or condition that proximately causes injury

Decided June 28, 2017

Reconsideration denied July 13, 2017.

Jones Osteen & Jones, Richard E. Braun, Jr., for appellants.

Lewis Brisbois Bisgaard & Smith, R. Scott Masterson, Todd E. Schwartz, Joelle C. Sharman, for appellee.

Prillaman v. Sark, 255 Ga. App. 781, 782 (567 SE2d 76) (2002). The evidence demonstrates that Chemtall placed a sign at the worksite advising workers of the presence of sodium hydroxide and its hazards. The evidence, however, does not conclusively establish that Daybreak and Law had full knowledge of, to the exclusion of Chemtall, the fact that sodium hydroxide might be puddled in various locations on the tank farm. Nor does the evidence conclusively establish that Law knew that the puddle he assumed was water, and had walked by on previous occasions, was sodium hydroxide. Indeed, Chemtall’s contractor safety manual had an exhaustive list of potential hazards relative to where and what type of work was being performed, and the presence of puddled or standing chemicals outside of storage tanks was not mentioned.

“The granting of a directed verdict is a grave matter as, in directing a verdict, the trial court takes the case away from the jury and substitutes its own judgment for the combined judgment of the jury” (Citation and punctuation omitted.) Kroger Co. v. Strickland, 248 Ga. App. 613, 613-614 (1) (548 SE2d 375) (2001).

Because I would find that the trial court erred in granting Chemtall’s motion for directed verdict, I respectfully dissent.

I am authorized to state that Presiding Judge Miller and Judge McMillian join in this dissent.

       We note that Chemtall is referred to in some record documents as “SNF Chemtall” and “SNF Holding Company.”


author: Branch, Judge.

text:
    A17A0333.
    BURNS v. THE STATE.
    (803 SE2d 79)
   Branch, Judge.

Following a jury trial, Willie Lewis Burns was convicted in DeKalb County Superior Court of aggravated assault and theft by receiving stolen property. Burns now appeals from the denial of his motion for a new trial on the charge of aggravated assault, asserting that his lawyer’s failure to request an instruction regarding the requirement that accomplice testimony be corroborated constituted ineffective assistance of counsel. Burns further contends that the trial court committed plain error when, after instructing the jury that the testimony of a single witness was sufficient to support a conviction, it failed to further instruct jurors that the testimony of an accomplice must be corroborated. We agree with Burns that he received ineffective assistance of counsel, and we therefore reverse the order denying Burns’s motion for new trial as to the aggravated assault charge.

Viewed in the light most favorable to the jury’s verdict, Martinez v. State, 306 Ga. App. 512, 514 (702 SE2d 747) (2010), the record shows that this case arises out of the efforts of Burns and his co-defendant, Jarvorris Palmer, to sell a car. Burns and Palmer were tried together, and at trial both stipulated that the car, a white Dodge Charger, was a stolen vehicle to which they did not hold title. On the morning of August 16, 2011, Burns and Palmer drove the car to meet with the victim, who had expressed an interest in buying it. After some negotiations, Burns and Palmer drove the victim in the Dodge Charger to the victim’s bank so that he could withdraw cash for the purchase of the vehicle. The victim went into the bank first, and Burns and Palmer followed a short time later. All three men were observed in the bank by a loan officer and the bank manager, and images of all three men were captured by the bank’s video recording system and were introduced into evidence at trial. After the victim completed his cash withdrawal, the men left the bank and returned to the car, which was parked in front of the manager’s office window. Both the bank manager and the loan officer then witnessed the men engaging in what appeared to be a heated argument regarding paperwork that either Burns or Palmer was holding. All three men then got into the car, with the victim getting into the back seat, and drove to a parking lot a short distance away. Approximately five minutes later, the bank manager left the bank and was walking toward her car when she heard what she believed was a gunshot. When the manager looked toward the sound of the shot, she saw the victim running and being pursued by the man who had been seated on the front passenger side of the car. The manager heard an additional three or four gunshots, and it appeared to her that the man pursuing the victim was shooting at him. As the manager watched, she saw the victim jump into oncoming traffic, saw the man pursuing him leave the scene and jump the fence surrounding a nearby apartment complex, and observed that the Dodge Charger had been driven away from the area.

The only other witness to the shooting was a repairman who had been working on an air-conditioning unit located on the roof of a nearby restaurant. After hearing a gunshot, the repairman looked toward the sound and saw a man exiting a white Dodge Charger holding a pistol and shooting at a second man. The repairman described the shooter as dark-skinned with dreadlocks and wearing a white shirt and baggy jeans. According to the repairman, the car and driver fled the scene as the shooter ran away.

Emergency personnel responded to the scene and discovered the victim suffering from a gunshot wound to the abdomen. Less than an hour after the incident, police located Burns and Palmer at an apartment complex within walking distance of the area where the shooting occurred. The Dodge Charger was found parked in the lot at the same apartment complex. Police then conducted a showup with both the bank manager and the loan officer, each of whom positively identified Burns and Palmer as the men they had seen in the bank with the victim. Additionally, the victim subsequently identified Burns and Palmer from two photographic lineups as the men who had assaulted and attempted to rob him.

After Burns and Palmer were taken into police custody, Palmer gave police a statement in which he identified Burns as the shooter. The police obtained arrest warrants for both men based on Palmer’s statement, and Burns and Palmer were thereafter indicted jointly on charges of kidnapping with bodily injury, armed robbery, aggravated assault, aggravated battery, and theft by receiving stolen property. With respect to the charge of aggravated assault, the indictment alleged that Burns and Palmer “individually and as parties [to] the commission of a crime ... did make an assault upon [the victim] with a handgun, a deadly weapon.”

At trial, there was conflicting evidence as to the identity of the shooter. According to the victim, both Burns and Palmer shot at him at some point. Although the victim’s testimony on this issue was confusing and at times self-contradictory, parts of that testimony indicated that Palmer was the man shooting at the victim as he attempted to flee from the car. Additionally, the bank manager positively identified Palmer as the shooter. The bank manager also noted that the shooter had been on the passenger side of the car, and in his testimony the victim stated that Burns was the driver. Furthermore, both the bank manager and the repairman described the shooter as wearing a white t-shirt and baggy blue pants or jeans, and the still photo taken from the video of the men inside the bank shows Palmer wearing clothes matching that description.

Palmer testified in his own defense and stated that he had agreed to help Burns sell a car both men knew was stolen, identified Burns as the shooter, and denied participating in the aggravated assault. Palmer acknowledged that when the incident began, Burns was driving the car and he was the person seated in the front passenger seat. But Palmer insisted that despite the bank manager’s unequivocal identification of the front seat passenger as the shooter (and despite her identification of Palmer as both the front seat passenger and the shooter), it was Burns who had committed the assault against the victim. Specifically, Palmer stated that when the victim decided not to purchase the car, Burns pulled a gun from underneath the driver’s seat and fired a shot toward the victim. Palmer further explained that when the victim escaped from the car, Burns ran from the scene, and Palmer then moved to the driver’s seat and drove the car to the nearby apartment complex.

In charging the jury, the trial court instructed the jurors that, “[t]he testimony of a single witness, if believed, is sufficient to establish a fact. Generally there is no legal requirement of corroboration of a witness provided that you find . . . the evidence to be sufficient.” Burns’s trial counsel did not object to this charge, and he did not request a corresponding charge that the uncorroborated testimony of an accomplice is insufficient to support a conviction. The jury found both Burns and Palmer not guilty of kidnapping with bodily injury, armed robbery, and aggravated battery, and found both guilty of theft by receiving stolen property. With respect to the charge of aggravated assault, the jury found Burns guilty but found Palmer not guilty.

Following his conviction, Burns filed a motion for a new trial on the charge of aggravated assault, alleging that his trial counsel’s failure to request a jury charge on the requirement that accomplice testimony be corroborated constituted ineffective assistance of counsel. The trial court held a hearing on that motion, at which trial counsel testified that the theory of defense was that Palmer did the shooting and that Burns “just happened to be there.” Defense counsel further testified that he was aware of the requirement that an accomplice’s testimony must be corroborated, but he could not recall a reason for his failure to request a jury charge on that requirement. The trial court subsequently denied the new trial motion, and Burns now appeals from that order.

1. OCGA § 24-14-8 provides, in relevant part:

The testimony of a single witness is generally sufficient to establish a fact. However, in . . . felony cases where the only witness is an accomplice, the testimony of a single witness shall not be sufficient. Nevertheless, corroborating circumstances may dispense with the necessity for the testimony of a second witness [in felony cases].

Under this rule, where an accomplice testifies at trial, a jury may not rely solely on that testimony to find any “fact necessary to [sustain the defendant’s felony] conviction.” Johnson v. State, 288 Ga. 803, 805 (2) (708 SE2d 331) (2011) (applying former OCGA § 24-4-8, now codified as OCGA § 24-14-8). See also Ramirez v. State, 294 Ga. 440, 442 (754 SE2d 325) (2014) (same). Instead, the existence of any such fact must also be supported either by the testimony of an additional witness or by other, independent evidence that corroborates the accomplice’s testimony And in a relatively recent case, our Supreme Court held that it is error for a trial court to refuse a request to charge on the requirement that accomplice testimony be corroborated even “where the accomplice’s testimony is in fact corroborated by independent evidence.” Hamm v. State, 294 Ga. 791, 795 (2) (756 SE2d 507) (2014) (expressly overruling a line of cases to the contrary).

Burns contends that in light of the foregoing law, and given the trial court’s instruction that the testimony of a single witness is sufficient to sustain a conviction, trial counsel’s failure to request a jury instruction that the testimony of an accomplice must be corroborated constituted ineffective assistance of counsel. To prevail on this claim, Burns bears the burden of proving both that the performance of his lawyer was deficient and that he suffered prejudice as a result of this deficient performance. Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984). To demonstrate deficient performance, Burns must prove that his lawyer’s failure to request such a jury instruction was objectively unreasonable, considering all of the circumstances and in light of prevailing professional norms. Id. at 687-690 (III) (A). And to show that prejudice resulted from this deficient performance, Burns must prove that there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different,. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694 (III) (B).

Here, the trial court found that counsel’s failure to request an instruction regarding the corroboration of accomplice testimony constituted deficient performance. In its brief, the State concedes that trial counsel’s performance was deficient in this regard, and we agree with this conclusion. See Fisher v. State, 299 Ga. 478, 485 (2) (a) (788 SE2d 757) (2016) (finding deficient performance where “itwouldhave been entirely unreasonable for [defense counsel] to make a ‘strategic decision’ to approve the trial court’s instruction to the jury that ‘generally, the testimony of a single witness ... is sufficient to establish a fact,’ without insisting that the court also instruct the jury that this general rule did not apply to [an accomplice’s] testimony”) (emphasis omitted). See also Hamm, 294 Ga. at 796-797 (2). The question before us, therefore, is whether, based on the record in this case, Burns has shown he was prejudiced by this deficient performance — i.e., whether counsel’s failure to request a jury instruction on the corroboration of accomplice testimony undermines confidence in the outcome of the trial. Fisher, 299 Ga. at 486 (2) (b).

When determining prejudice in the context of an ineffective assistance claim,

“we review the record de novo [and] we weigh the evidence as we would expect reasonable jurors to have done so, as opposed to assuming that they took the most pro-guilt possible view of every bit of evidence in the case.” Boothe v. State, 293 Ga. 285, 289-290 & n. 8 (745 SE2d 594) (2013) (citation and punctuation omitted) (explaining the difference between the way courts review the harm caused by errors and the way courts conduct due process review of the sufficiency of the evidence). See also Strickland, 466 U. S. at 695 (“In making [the prejudice] determination, a court hearing an [ineffective assistance] claim must consider the totality of the evidence before the judge or jury.”); Humphrey v. Morrow, 289 Ga. 864, 870 (717 SE2d 168) (2011) (explaining that when the court assesses the effect of evidence that was not presented to the jury at trial due to defense counsel’s deficient performance . . . “our assessment of how a jury might have reacted to the additional evidence is an assessment of the legal question of prejudice, which we perform de novo”).

Woodard v. State, 296 Ga. 803, 810-811 (3) (b), n. 5 (771 SE2d 362) (2015) (punctuation omitted).

In denying Burns’s motion for a new trial, the trial court found that Burns could not demonstrate prejudice because he had been charged as a party to the crime “which mean[t] that the jury could convict if they found that [Burns] was either a party to the crime [of aggravated assault] or the actual perpetrator of the crime.” The trial court then found that the evidence at trial established “beyond a reasonable doubt” that Burns was a party to the crime, as it showed that Burns “was at the scene of the crime and participated in it.” Thus, the court reasoned that because evidence independent of Palmer’s testimony supported Burns’s conviction as a party to the crime of aggravated assault, Burns was not prejudiced by his lawyer’s failure to request the jury charge at issue. The flaw in this reasoning is that it fails to acknowledge that the same jury that convicted Burns of aggravated assault acquitted Palmer of that crime. Thus, the jury found that Burns alone perpetrated the crime of aggravated assault against the victim and that Palmer was not even a participant in that crime. Accordingly, the jury’s verdict forecloses the possibility that it convicted Burns as a party to the crime of aggravated assault committed by Palmer. See OCGA § 16-2-21 (a party to the crime is one “who did not directly commit the crime”).

Furthermore, the mere fact that there was some evidence corroborating Palmer’s testimony does not prevent Burns from proving he suffered prejudice asa result of counsel’s failure to request the jury instruction at issue. With respect to prejudice resulting from the absence of this jury instruction, the question is not whether there was sufficient corroboration of the accomplice testimony to allow the jury to rely on that testimony when determining the defendant’s guilt. Rather, as noted above, the question is whether, under the circumstances of this case, the absence of an instruction on the necessity for corroboration of accomplice testimony undermines confidence in the outcome of the trial. See Fisher, 299 Ga. at 486-487 (2) (b) (finding that trial counsel’s failure to request an instruction on the requirement that accomplice testimony must be corroborated resulted in prejudice to the defendant, despite the fact that corroborating evidence was introduced at trial). See also Stanbury v. State, 299 Ga. 125, 131 (2) (786 SE2d 672) (2016) (although other evidence corroborated accomplice’s testimony, the “trial court’s failure to give an accomplice corroboration instruction . . . when coupled with the express authorization by the court for the jury to establish critical facts based solely on this testimony” constituted plain error, as it raised the possibility that the defendant’s conviction was secured through impermissible means). Here, viewing the record — including the charge to the jury — asa whole, and weighing the evidence “as we would expect reasonable jurors to do,” we find that Burns has demonstrated prejudice resulting from trial counsel’s deficient performance.

Palmer’s identification of Burns as the sole shooter was directly contradicted by the testimony of the bank manager, who affirmatively identified Palmer as the shooter. Additionally, other circumstantial evidence pointed to Palmer as the assailant, including the eyewitness description of the clothing worn by the shooter, which matched the clothing Palmer was wearing at the time of the crime. And the bank manager’s testimony that the shooter had been seated in the front passenger seat of the car, in conjunction with Palmer’s admission that he had been the front seat passenger, also served to undermine Palmer’s claim that Burns alone committed the aggravated assault. Moreover, although the victim stated that both defendants shot him, that testimony also indicated that Burns never left the car and implied that Palmer was the man who pursued the victim and delivered the shot that injured him. Given the evidence, the absence of an instruction on the requirement that Palmer’s testimony be corroborated, when coupled with the trial court’s instruction that the testimony of a single witness is sufficient to establish a fact, “impermissibly empowered the jury” to disregard any conflicting testimony and “to find [Burns] guilty [of aggravated assault] based solely on [Palmer’s] accomplice testimony” Stanbury, 299 Ga. at 130 (2). And “[b]ecause jury instructions are the lamp to guide the jury’s feet in journeying through the testimony in search of a legal verdict, we must presume the jury accepted the authorization to establish a fact based solely on [Palmer’s] accomplice testimony” Id. at 130-131 (2) (citation and punctuation omitted). Accordingly, we must conclude that the outcome of trial “was ‘likely affected’ by the trial court’s failure to provide an accomplice corroboration charge to the jury” Id. See also Martin v. State, 298 Ga. 259, 277-278 (6) (c) (779 SE2d 342) (2015), cert. denied, _ U. S. _ (137 SCt 62, 196 LE2d 60) (2016) (noting that the “test for harm under plain error review is equivalent to the test in ineffective assistance of counsel cases for whether an attorney’s deficient performance has resulted in prejudice of constitutional proportions”).

Decided June 27, 2017

Reconsideration denied July 13, 2017.

Kevin A. Anderson, for appellant.

Robert D. James, Jr., District Attorney, Lenny I. Krick, Assistant District Attorney, for appellee.

Thus, we find that under the circumstances of this case, trial counsel’s failure to request a jury instruction regarding the requirement that accomplice testimony be corroborated constituted ineffective assistance of counsel. Fisher, 299 Ga. at 486-487 (2) (b); Stanbury, 299 Ga. at 131 (2).

2. In light of our holding in Division 1, we need not address Burns’s remaining enumeration of error.

For the reasons set forth above, we reverse the trial court’s denial of Burns’s motion for a new trial on the charge of aggravated assault.

Judgment reversed.

McFadden, P. J., and Bethel, J., concur.

       Burns has not challenged his conviction on the charge of theft by receiving, and our reversal of the denial of the motion for a new trial on the aggravated assault charge does not affect the finality of the conviction and sentence for theft by receiving.

       During his testimony at trial, Palmer acknowledged that the papers were fake documents (including a fake car title) he “had . .. drawn up” to help facilitate the sale of the stolen vehicle .

       The record shows that neither Burns nor Palmer had dreadlocks at the time of the crime, and at trial, the repairman could not identify either Burns or Palmer as the shooter.

       The only evidence of kidnapping with bodily injury, armed robbery, and aggravated battery was the testimony of the victim. That testimony, however, was confusing and at times self-contradictory. Additionally, elements of that testimony were in direct conflict with both the physical evidence and the testimony of other witnesses. And viewing the jury’s verdict in light of the evidence, it appears jurors rejected the victim’s testimony almost entirely.

       We recognize that the acquittal of one claimed to have directly committed the crime “does not bar the prosecution and conviction of another party to the crime in a separate and distinct trial of the issues.” Eades v. State, 232 Ga. 735, 738 (4) (208 SE2d 791) (1974) (emphasis supplied). See also OCGA § 16-2-21 (a person may be convicted as a party to a crime “although the person claimed to have directly committed the crime has not been prosecuted or convicted, has been convicted of a different crime or degree of crime, or . . . has been acquitted”); White v. State, 257 Ga. 236 (356 SE2d 875) (1987); Rhines v. State, 288 Ga. App. 128, 130 (1) (653 SE2d 500) (2007). Thus, had Palmer been acquitted of aggravated assault in a separate trial, by a jury other than the one that convicted Burns, Palmer’s acquittal would not prevent Burns from being convicted as a party to aggravated assault. See White, 257 Ga. at 236 (acquittal of principal is relevant evidence in subsequent trial of an accomplice charged as a party to the crime, but it does not bar the accomplice’s conviction as a party); Rhines, 288 Ga. App. at 130 (1) (same). But given that Burns and Palmer were tried jointly before the same jury, the only way to interpret the verdict on the charge of aggravated assault is that Burns was convicted as the principal, not as a party to the crime.