O.C.G.A. § 15-11-2 — Robertson v

State, 297 Ga. App. 228, 676 S.E.2d 871 (2009), cert. denied, No. S09C1300, 2009 Ga. LEXIS 406 (Ga. 2009) (decided under former O.C.G.A. § 15-11-2). Carrying weapon on school grounds Class B felony. — Juvenile court erred by modifying the juvenile’s disposition after determining that the disposition was void on the ground that the juvenile’s conduct did not qualify as a Class-B felony because carrying a weapon in a school zone qualiﬁed as a Class-B designated felony under O.C.G.A. § 15-11-2 and ‘‘ﬁrearm’’ included ‘‘handguns’’ under O.C.G.A. § 16-11-131. In the Interest of D. B., 341 Ga. App. 559, 802 S.E.2d 19 (2017). Third party must show grounds for custody by clear and convincing evidence. — As between a natural parent and a third party (grandparent), the parent can be deprived of custody only if one of the conditions speciﬁed in O.C.G.A. § 19-7-1 or O.C.G.A. § 19-7-4, or some other legal grounds is found to exist by clear and convincing evidence. Brant v. Bazemore, 159 Ga. App. 659, 284 S.E.2d 674 (1981) (decided under former O.C.G.A. § 15-11-2). Admissibility of juvenile’s confession. — Issue of whether officer to whom juvenile was taken and to whom the juvenile made confession was a ‘‘juvenile court intake officer’’ did not affect admissibility of the statement when Miranda warnings were given and the juvenile’s mother was present. Houser v. State, 173 Ga. App. 378, 326 S.E.2d 513 (1985) (decided under former O.C.G.A. § 15-11-2). Violation of safety plan. — When evidence shows that a parent violates a 15-11-2 safety plan by placing a child in an abusive environment, a court may ﬁnd dependency and order loss of custody. In the Interest of T. S., 348 Ga. App. 263, 820 S.E.2d 773 (2018). Cited in In the Interest of H. J. C., 331 Ga. App. 506, 771 S.E.2d 184 (2015); In the Interest of G. R. B., 330 Ga. App. 693, 769 S.E.2d 119 (2015); In the Interest of C. M., 331 Ga. App. 16, 769 S.E.2d 737 (2015); In the Interest of S. P., 336 Ga. App. 488, 784 S.E.2d 846 (2016); In the Interest of M.D.H., 300 Ga. 46, 793 S.E.2d 49 (2016); In the Interest of J. N., 344 Ga. App. 409, 810 S.E.2d 191 (2018); In the Interest of K. D., 344 Ga. App. 423, 810 S.E.2d 193 (2018); In the Interest of I. L. M., 304 Ga. 114, 816 S.E.2d 620 (2018); In the Interest of M. F., 305 Ga. 820, 828 S.E.2d 350 (2019); In the Interest of A. L. S., 350 Ga. App. 636, 829 S.E.2d 900 (2019). Jurisdiction of Court Jurisdiction. — Under former O.C.G.A. §§ 15-11-2(2)(B) and 15-11-28(a)(1)(F) (see now O.C.G.A. §§ 15-11-2, 15-11-381, and 15-11-471), a juvenile court lacked jurisdiction over the defendant, who was over 17 when a probation violation occurred; thus, the defendant’s commitment under O.C.G.A. § 15-11-63 (see now O.C.G.A. §§ 15-11-2, 15-11-471, and 15-11-602) was void. The state had not ﬁled a petition for probation revocation, but only for a violation of probation. In the Interest of T.F., 314 Ga. App. 606, 724 S.E.2d 892 (2012) (decided under former O.C.G.A. § 15-11-63). Juvenile may receive restrictive custody for the designated felony act of aggravated assault alone. C.P. v. State, 167 Ga. App. 374, 306 S.E.2d 688 (1983) (decided under former Code 1933, § 24A-401). If the juvenile court made all the factual ﬁndings required by former O.C.G.A. § 15-11-37 and (see now O.C.G.A. §§ 15-11-2, 15-11-471, 15-11-602) and speciﬁcally found ‘‘the child is in need of restrictive custody’’ in the juvenile court’s order of commitment, there was no error in conﬁning the child in a youth development center. In re T.T., 236 Ga. App. 46, 642 510 S.E.2d 901 (1999) (decided under former O.C.G.A. § 15-11-37). Trial court did not err in placing the defendants, both juveniles, in restrictive custody, as the aggravated assault that the defendants committed was a designated felony under former O.C.G.A. § 15-11-63(a) (see now O.C.G.A. § 15-11-2) that required a ﬁnding under O.C.G.A. § 15-11-63(b) (see now O.C.G.A. § 15-11-62) as to whether defendants required restrictive custody; the circumstances under former O.C.G.A. § 15-11-63(c) (see now O.C.G.A. § 15-11-62) supported the imposition of restrictive custody since the crime was severe, the crime was premeditated, and the crime had a devastating impact on the victim’s life. In the Interest of T.K.L., 277 Ga. App. 461, 627 S.E.2d 98 (2006) (decided under former O.C.G.A. § 15-11-63). Juvenile’s sentence of four years in custody was proper on six counts of aggravated assault and one count of possession of a handgun by an underage person because the juvenile was not subject to one of the most severe punishments allowed by law, but was sentenced under former O.C.G.A. § 15-11-63 (see now O.C.G.A. §§ 15-11-2 and 15-11-602), which had the central purpose of rehabilitation and treatment of the child and not punishment. In the Interest of T. D. J., 325 Ga. App. 786, 755 S.E.2d 29 (2014) (decided under former O.C.G.A. § 15-11-63). Petition necessary to revoke probation. — Juvenile court cannot sua sponte revoke probation and order a disposition as for a ‘‘designated felony act ’’ after conducting a hearing on a petition which alleges only delinquency by reason of the commission of an act not within the ambit of former O.C.G.A. § 15-11-37 (see now O.C.G.A. §§ 15-11-2 and 15-11-602). Before a juvenile court may revoke an order granting probation, a petition must be ﬁled requesting such relief. In re B.C., 169 Ga. App. 200, 311 S.E.2d 857 (1983) (decided under former O.C.G.A. § 15-11-37). No age requirement for previous designated felony acts. — Juvenile court did not err in ﬁnding that the defendant committed a designated felony act under subparagraph (a)(2)(D) of former O.C.G.A. § 15-11-37 (see now O.C.G.A. 15-11-2 §§ 15-11-2 and 15-11-602), although the previous adjudicated delinquent acts were not committed when the defendant was 13 or more years of age. The previous act of burglary to which former subparagraph (a)(2)(D) referred carried no age requirement. The only requirement was that the juvenile commit a felonious act after three previous adjudications for acts which would have been felonies if committed by an adult. In re K.A.B., 188 Ga. App. 515, 373 S.E.2d 395 (1988) (decided under O.C.G.A. § 15-11-37). Child molestation. — Because child molestation was not an offense listed in former O.C.G.A. § 15-11-28(b)(2)(A) (see now O.C.G.A. §§ 15-11-401 and 15-11-490), the trial court erred in using former O.C.G.A. § 15-11-63(a)(2)(D) (see now O.C.G.A. §§ 15-11-2 and 15-11-602) to classify the offense as a designated felony act when the court sentenced a juvenile. In the Interest of M. S., 277 Ga. App. 706, 627 S.E.2d 422 (2006) (decided under former O.C.G.A. § 15-11-63). Sentence vacated. — Although the state argued that a juvenile had been adjudicated on ﬁve separate petitions setting out ﬁve separate felonies, because the record revealed that adjudication had occurred on only two prior occasions for acts which, if done by an adult, would have been felonies, the juvenile’s sentence under former O.C.G.A. § 15-11-63(a)(2)(B)(vii) (see now O.C.G.A. § 15-11-2) was vacated, and the case was remanded for resentencing. In the Interest of P.R., 282 Ga. App. 480, 638 S.E.2d 898 (2006) (decided under former O.C.G.A. § 15-11-63). No exclusive original jurisdiction over certain youthful offenders. — Ga. L. 1971, p. 709, § 1 does not vest exclusive original jurisdiction in the juvenile court over the following class of youthful offenders: persons between the ages of 17 and 21 years, who have committed noncapital felonies, and who are under the supervision of or are on probation to a juvenile court for acts of delinquency committed before reaching the age of 17 years. State v. Crankshaw, 243 Ga. 183, 253 S.E.2d 69 (1979) (decided under former Code 1933, § 24A-401). Former Code 1933, § 24A-401 was intended merely as a device for ex- 643 Jurisdiction of Court (Cont’d) tending jurisdiction of juvenile courts to take actions against persons between the age of 17 and 21 years authorized under Ga. L. 1971, p. 709, § 1. State v. Crankshaw, 243 Ga. 183, 253 S.E.2d 69 (1979) (decided under former Code 1933, § 24A-401). Noncapital felonies committed by persons over 17 years. — Former statute should not be construed as giving the juvenile courts jurisdiction over noncapital felonies committed by persons after those people have reached the age of 17 years. State v. Crankshaw, 243 Ga. 183, 253 S.E.2d 69 (1979) (decided under former Code 1933, § 24A-401). Age at time of offense controls. — Although a juvenile no longer qualiﬁed as a child under former O.C.G.A. § 15-11-2(2)(A) and (B) after the juvenile’s seventeenth birthday, it was the juvenile’s age at the time of the offense which controls; therefore, because the juvenile was under the age of 17 at the time the act of delinquency occurred, the juvenile court properly exercised exclusive original jurisdiction over the juvenile’s case. In the Interest of J.T.D., 242 Ga. App. 243, 529 S.E.2d 377 (2000) (decided under former O.C.G.A. § 15-11-2). Violation of probation. — Under former O.C.G.A. §§ 15-11-2(2)(B) and 15-11-28(a)(1)(F (see now O.C.G.A. §§ 15-11-2 and 15-11-10), a juvenile court lacked jurisdiction over the defendant, who was over 17 when a probation violation occurred; thus, the defendant’s commitment under former O.C.G.A. § 15-11-63 ( In the Interest of T.F., 314 Ga. App. 606, 724 S.E.2d 892 (2012) (decided under former O.C.G.A. § 15-11-2). Court without original jurisdiction of custody and support contest. — Jurisdiction of a custody and support contest between parents, in the nature of habeas corpus, alleging that the children were deprived as deﬁned by former Code 1933, § 24A-401 was governed by former Code 1933, § 50-103 (see now O.C.G.A. § 9-14-4). The juvenile court did not have original jurisdiction of such a contest. Griggs v. Griggs, 233 Ga. 752, 213 S.E.2d 649 (1975) (decided under former Code 1933, § 24A-401). 15-11-2 Juvenile court erred by granting custody of child to grandparents instead of father, after mother died, since the petition was not a deprivation action but a custody dispute as the juvenile court had no jurisdiction. In the Interest of K.R.S., 253 Ga. App. 678, 560 S.E.2d 292 (2002) (decided under former O.C.G.A. § 15-11-2). Juvenile court jurisdiction over both adoption and parental termination proceedings. — Trial court did not err in concluding that the court had jurisdiction over adoption and termination of parental rights proceeding as statutory law granted the trial court jurisdiction over adoption proceedings and other proceedings that were not granted exclusively to the juvenile courts; since the juvenile courts were granted exclusive jurisdiction over deprivation proceedings, those types of matters were to be heard by the juvenile courts, but the trial court had the authority to hear adoption and other matters, such as the adoptive parents’ adoption petition ﬁled to adopt the biological parents’ minor child. Snyder v. Carter, 276 Ga. App. 426, 623 S.E.2d 241 (2005) (decided under former O.C.G.A. § 15-11-2). Jurisdiction of juvenile court in transferred custody proceeding. — Georgia Supreme Court affirmed the transfer of a father’s petition for custody from Gwinnett County, Georgia, to Douglas County, Georgia because the ‘‘complaint for custody’’ that the father ﬁled in Gwinnett County fairly was read as a petition to modify, vacate, or revoke the permanent guardianship, a petition over which the Juvenile Court of Douglas County had exclusive jurisdiction under the circumstances. In the Interest of M. F., 298 Ga. 138, 780 S.E.2d 291 (2015). Jurisdiction over legitimation petition and for placement. — Contrary to a mother’s contention, the custody order showed on the order’s face such facts as were necessary to give the juvenile court jurisdiction of the person and subject matter because the order referenced and incorporated the legitimation order entered days earlier, reﬂected on the order’s face that all parties were served with a copy of the pleadings and were present, along 644 with their counsel, and the mother did not contest the juvenile court’s personal jurisdiction. In the Interest of B. H.-W., 332 Ga. App. 269, 772 S.E.2d 66 (2015). Transfer from Superior Court needed for permanent custody order. — In a private deprivation action brought by the maternal grandmother of a 9-year-old child, the juvenile court lacked authority to grant the grandmother permanent custody over the child for purposes of adoption because the case was not commenced in the Georgia Superior Court, which had jurisdiction over issues of permanent child custody; therefore, without a transfer order from the Superior Court under O.C.G.A. § 15-11-28, the custody award could not stand. In the Interest of C. A. J., 331 Ga. App. 788, 771 S.E.2d 457 (2015). Delinquency ‘‘Delinquent act’’ is one designated crime by state or federal law. Hartley v. Clack, 239 Ga. 113, 236 S.E.2d 63 (1977) (decided under former Code 1933, § 24A-401). Probation violation included in justiﬁcation of delinquency petition. — Juvenile court erred when the court dismissed the state’s petition alleging that a child had committed the delinquent act of violating probation as O.C.G.A. § 15-11-2(19)(B) plainly included a probation violation in the category of actions that may give rise to a new delinquency petition and O.C.G.A. § 15-11-608(b) plainly permitted the ﬁling of a motion for revocation of probation, and no court is authorized to ignore either a petition brought under the ﬁrst or a motion brought under the second. In the Interest of H. J. C., 331 Ga. App. 506, 771 S.E.2d 184 (2015). Crime may be delinquent act when committed by juvenile. — Juvenile court might well ﬁnd that any act which is designated a crime under Georgia law is a delinquent act when committed by a juvenile. In order to do this, it is not necessary that the juvenile be considered or found guilty of a crime. K.M.S. v. State, 129 Ga. App. 683, 200 S.E.2d 916 (1973) (decided under former Code 1933, § 24A-401). 15-11-2 Crime committed even though child not yet 13 years. — Juvenile court may adjudicate a child a delinquent based upon a petition alleging that the child committed an act designated a crime under Georgia law when the child has not yet attained the age of 13 years. K.M.S. v. State, 129 Ga. App. 683, 200 S.E.2d 916 (1973) (decided under former Code 1933, § 24A-401). Delinquent act ceases to be ‘‘crime’’ only for proceedings in juvenile court and the resultant effects of its adjudication. A petition designating the act by another name does not destroy the act’s essence so as to preclude legitimate proceedings elsewhere. J.E. v. State, 127 Ga. App. 589, 194 S.E.2d 288 (1972) (decided under former Code 1933, § 24A-401). Delinquent acts including another or coincident crimes. — It is necessary to an adjudication of a ‘‘delinquent act’’ that the act be one which is deﬁned as, and would be, a ‘‘crime’’ if the act were committed by an adult, and this includes ‘‘delinquent acts’’ which would include another or coincident ‘‘crime’’ if committed by an adult, such as the crime of ‘‘possession of a ﬁrearm during the commission of a felony.’’ In re D.T.C., 226 Ga. App. 364, 487 S.E.2d 21 (1997) (decided under former O.C.G.A. § 15-11-2). Possession of alcohol as delinquent act. — Possession of alcohol by a minor may be either a delinquent or an unruly offense, and, since it may be a delinquent act, violating a court-ordered probation imposed for such an offense may likewise be a delinquent act. In re C.P., 217 Ga. App. 505, 458 S.E.2d 166 (1995) (decided under former O.C.G.A. § 15-11-2). Unnecessary to ﬁnd adult intent. — In order to ﬁnd a juvenile defendant guilty of the delinquent act of attempted aggravated child molestation, the court must ﬁnd that the defendant attempted aggravated child molestation with an intent to satisfy the defendant’s own desires. Whether the juvenile defendant had the sexual intent or knowledge of an adult would be irrelevant. In re W.S.S., 266 Ga. 685, 470 S.E.2d 429 (1996) (decided under former O.C.G.A. § 15-11-2). Driving without a license. — Although the juvenile court could ﬁnd that 645 Delinquency (Cont’d) the juvenile was delinquent for driving without a license, the state did not prove that the juvenile was wandering or loitering in violation of former O.C.G.A. § 15-11-2(12)(E) since the juvenile was proceeding to a destination certain. In the Interest of T. H., 258 Ga. App. 416, 574 S.E.2d 461 (2002) (decided under former O.C.G.A. § 15-11-2). Probation violation a delinquent act. — Juvenile defendant’s commitment to the Department of Juvenile Justice (DJJ) was proper because the defendant’s violation of probation terms was a delinquent act and the defendant was found in need of treatment or rehabilitation under former O.C.G.A. § 15-11-66(a)(4) (see now O.C.G.A. § 15-11-601). In the Interest of B. Q. L. E., 297 Ga. App. 273, 676 S.E.2d 742, cert. denied, No. S09C1197, 2009 Ga. LEXIS 787 (Ga. 2009) (decided under former O.C.G.A. § 15-11-2). Juvenile court had jurisdiction to hear and decide the state’s petition alleging that the defendant, a juvenile, had committed the new delinquent act of violating probation, irrespective of whether the one-year terms of the defendant’s probation ended after the commencement of the new delinquency proceedings. In the Interest of J. M. A., 340 Ga. App. 155, 796 S.E.2d 773 (2017). Petition insufficient to charge juvenile as unruly. — Juvenile court erred in denying the defendant juvenile’s special demurrer to a petition accusing the defendant of being unruly pursuant to former O.C.G.A. §§ 15-11-2 and 15-11-67 (see now O.C.G.A. §§ 15-11-2 and 15-11-442) because the petition did not allege the defendant’s misconduct with particularity, and the defendant was unable to determine what acts of disobedience supported the allegation that the defendant was unruly; although the petition alleged the date the defendant was disobedient, the petition provided no factual details, and the petition merely mirrored the language of former O.C.G.A. § 15-11-2(12)(B). In the Interest of C.H., 306 Ga. App. 834, 703 S.E.2d 407 (2010) (decided under former O.C.G.A. § 15-11-2). Evidence insufficient to support adjudication of delinquency. — Adjudica- 15-11-2 tion of children as delinquent for being outside their residence past their probationary curfew was error in the absence of competent proof that either child was subject to court-ordered probation and to a deﬁned curfew as a term of that probation. In re B.K., 239 Ga. App. 822, 522 S.E.2d 255 (1999) (decided under former O.C.G.A. § 15-11-2). Defendant’s adjudication of juvenile delinquency based on a charge that the defendant was violating the terms of probation by associating with gang members was reversed; the state failed to prove the predicate acts of a count charging the defendant with participation in criminal street gang activity, and the state admitted that the probation violation count did not contain sufficient factual details to inform the defendant of the nature of the offense charged. In the Interest of L.J.L., 284 Ga. App. 801, 645 S.E.2d 371 (2007) (decided under former O.C.G.A. § 15-11-2). Evidence sufficient to support adjudication of delinquency. — When juvenile defendants confessed to entering a vacant home and causing damage therein, and a police officer testiﬁed to the condition of the home and the damage the officer found upon investigation, together with witnesses’ statements from people who were with the defendants prior to and after the acts, wherein the witnesses’ testiﬁed that the defendants indicated their intent to damage the house, there was sufficient evidence to support an adjudication of delinquency pursuant to former O.C.G.A. § 15-11-2. In the Interest of Q.D., 263 Ga. App. 293, 587 S.E.2d 336 (2003) (decided under former O.C.G.A. § 15-11-2). Officer’s testimony that the officer encountered a group of juveniles, including the appellant, at 1:30 A.M., the juveniles could not explain their presence in the area, the juveniles did not have identiﬁcation, and the juveniles gave conﬂicting stories about the owner of a vehicle the juveniles were standing around was sufficient to prove the offenses of curfew violation, loitering, and prowling beyond a reasonable doubt. It was immaterial that the appellant did not attempt to ﬂee from the officer, refuse to identify himself, or at- 646 15-11-2 tempt to conceal himself. In the Interest of R.F., 279 Ga. App. 708, 632 S.E.2d 452 (2006) (decided under former O.C.G.A. § 15-11-2). Trial court did not err in adjudicating the defendant juvenile delinquent for a violation of the Anti-Mask Act, O.C.G.A. § 16-11-38, and a violation of O.C.G.A. § 16-11-36 for loitering or prowling because there was sufficient evidence to permit a rational trier of fact to conclude beyond a reasonable doubt that the defendant intended to conceal the defendant’s identity and to threaten, intimidate, or provoke the apprehension of violence; the circumstances and the defendant’s actions, together with a friend’s actions, supported the conclusion that a justiﬁable and reasonable alarm or immediate concern for the safety of the occupants of a house was warranted. In the Interest of I.M.W., 313 Ga. App. 624, 722 S.E.2d 586 (2012) (decided under former O.C.G.A. § 15-11-2). Evidence that the defendant received $775 a month in Supplemental Security Income beneﬁts, was physically able to work from the adjudication of delinquency until a foot injury but failed to try to obtain work, failed to pay the $75 supervision fee, and failed to complete community service hours despite the ﬂexibility afforded by the probation officer was sufﬁcient to support the adjudication as delinquent for violating probation. In the Interest of J. M. A., 340 Ga. App. 155, 796 S.E.2d 773 (2017). Delinquency adjudication for burglary. — Evidence was sufficient for any rational trier of fact to ﬁnd the juvenile delinquent due to the juvenile’s involvement in the burglary of a pharmacy because an accomplice’s testimony that the juvenile participated in the burglary was corroborated; the extraneous evidence, even if slight and entirely circumstantial, connected the juvenile to the burglary. In the Interest of R.W., 315 Ga. App. 227, 726 S.E.2d 708 (2012) (decided under former O.C.G.A. § 15-11-2). Delinquency adjudication for criminal damage to property. — Juvenile court did not err in ﬁnding the defendant juvenile delinquent for committing the offense of criminal damage to property in violation of O.C.G.A. § 16-7-23(a)(1) because the evidence presented including the extent of the damage and the defendant’s admission that the defendant and others kicked and pushed on the door to a rental home was sufficient. In the Interest of C.H., 306 Ga. App. 834, 703 S.E.2d 407 (2010) (decided under former O.C.G.A. § 15-11-2). Delinquency adjudication for gang activity. — There was sufficient evidence to support the defendant juvenile’s adjudication of delinquency for participation in criminal street gang activity in violation of O.C.G.A. § 16-15-4 because the evidence established that the defendant was a gang member and that there was a nexus between the shooting and an intent to further gang activity; the defendant admitted that the defendant was a member of the gang, and a police detective, who was qualiﬁed as an expert in gang investigations, testiﬁed that the defendant was a known member of the gang, that the defendant had previously admitted to the detective that the defendant was a member of that gang, that a black bandana was attire associated with the gang, and that wearing such a bandana during a shooting was particularly significant because the bandana proclaimed to the world that the defendant was a member and that the shooting was a gang act. In the Interest of D. M., 307 Ga. App. 751, 706 S.E.2d 683 (2011) (decided under former O.C.G.A. § 15-11-2). Mental Instability Evidence of deprived child. — Evidence established that a child was deprived due to parental unﬁtness under former O.C.G.A. § 15-11-2(8)(A) (see now O.C.G.A. §§ 15-11-2 and 15-11-107) because the mother was unable to care for the child from birth due to mental instability, the father was intentionally absent for the ﬁrst two months of the child’s life, and although the parents had married, neither had a job or stable housing, and the mother’s mental instability had not been addressed. In re V.D., 303 Ga. App. 155, 692 S.E.2d 780 (2010) (decided under former O.C.G.A. § 15-11-2). Parent unable to independently parent child due to cognitive deﬁcits. — Judgment of the trial court terminating 647 Mental Instability (Cont’d) a mother’s parental rights was affirmed because although the mother met most case plan goals, the evidence of parental inability was sufficient to support the termination based on the mother’s signiﬁcant cognitive deﬁcits which left the mother unable to independently parent the child, who, because of developmental issues, presented extraordinary parenting challenges. In the Interest of T. A., 331 Ga. App. 92, 769 S.E.2d 797 (2015). Sexual Abuse Evidence of deprived child. — Evidence supported the juvenile court’s ﬁnd- 15-11-2 ing that a father’s son and daughter were deprived because, although there was testimony from witnesses stating that the witnesses never saw any problems with the children, the court of appeals neither weighed the evidence nor determined the credibility of witnesses but instead deferred to the juvenile court’s factﬁnding and affirmed unless the appellate standard was not met; the evidence that the father physically abused the son, sexually abused the daughter, and neglected the children’s hygiene was sufficient to meet that standard. In the Interest of R. C. H., 307 Ga. App. 774, 706 S.E.2d 686 (2011) (decided under former O.C.G.A. § 15-11-2).