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Harvey v. State

Court of Appeals of Georgia, Fifth Division

October 30, 2017

HARVEY
v.
THE STATE.

          MCFADDEN, P. J., BRANCH and BETHEL, JJ.

          Bethel, Judge.

         Christopher David Harvey appeals the denial of his motion for a new trial, arguing that the trial court erred in several respects. Harvey argues that the trial court should have sustained his objection that the police sergeant who testified regarding items found on Harvey's person lacked personal knowledge. Accordingly, he contends that the admission of those items into evidence was error. Harvey further argues that the evidence was insufficient to support his convictions for possession of marijuana, possession of a firearm during a felony, and possession of a firearm by a convicted felon. Because the trial court did not err in overruling Harvey's objection to the police sergeant's testimony or the admission of the items, the evidence is sufficient to affirm his conviction for possession of marijuana. However, we agree with Harvey that the evidence was insufficient to support his convictions for possession of a firearm during a felony and possession of a firearm by a convicted felon, and we reverse those convictions.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence. We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

McMullen v. State, 325 Ga.App. 757, 758 (1) (754 S.E.2d 798) (2014) (footnote omitted). So viewed, the record shows that on March 20, 2015, the Warner Robins Police Department executed a search warrant on an apartment unit. After the front door was rammed open, an officer saw a black male run to a back bedroom. The officer kicked the bedroom door open, entered the room, and ordered the individual to the ground. The officer observed a gun on the floor next to where the individual was lying. The officer did not recall anyone else being present in the back bedroom at the time, and the officer did not search the individual or notice anything else aside from the firearm in the room. The officer could not recall the identity of the individual he detained in the back bedroom and did not identify Harvey as the person he detained near the gun on the floor. Several other individuals were found in the apartment at the same time, some of whom were also arrested.

         Sometime that evening (after the officer had pursued the individual to the back bedroom, apprehended the individual, and left the bedroom) a sergeant walked back to the room. There the sergeant saw several officers, as well as Harvey and another individual in custody on the floor. The sergeant observed several pieces of crack cocaine on the floor within approximately six to seven inches of Harvey, but did not see a gun near either of the individuals in custody on the floor. Rather, the sergeant observed the gun lying on the kitchen counter, which he testified was retrieved from the bedroom.[1] An additional gun was recovered from a backpack in the living room.[2]

         At trial, the State asked the sergeant to recount the items recovered from Harvey. The defense objected, arguing that the sergeant lacked personal knowledge. After confirming that the sergeant neither conducted nor observed the search of Harvey, the trial court sustained the objection because the sergeant would have been relying on hearsay in giving his response. However, the trial court later permitted the sergeant to testify, over defense counsel's objection, [3] as to the items he was handed pertaining to Harvey. The sergeant testified that he entered into evidence razor blades, cash, and marijuana, which were all obtained from Harvey's person.

         The jury found Harvey guilty of possession of cocaine with intent to distribute, possession of an illegal substance within 1, 000 feet of a housing project, possession of a firearm during the commission of a felony, possession of less than an ounce of marijuana, and possession of a firearm by a convicted felon. Harvey filed a motion for a new trial, which the trial court denied after a hearing.

         1. (a) Harvey argues that the trial court erred by overruling his objection that the sergeant lacked personal knowledge that the razor blades, marijuana, and currency had been retrieved from Harvey's person. But our review of the record shows that the sergeant was asked whether he was "handed any items pertaining to Mr. Harvey[.]" Defense counsel objected "to the form" of the question on the basis that the sergeant "may not have personal knowledge that [the items] originated from Mr. Harvey." The trial court properly overruled the objection, as the question posed by the State-on its face-did not call for an answer outside the sergeant's knowledge. The sergeant participated in the investigation of the criminal activity at the residence (including a search of the premises) knew that a search of Harvey's person was occurring, and was present in the residence while the search was being conducted. The sergeant conceded at trial that he did not personally conduct or observe the search of Harvey's person, but was handed razor blades, cash, and a small bag of marijuana to enter into evidence.[4] The sergeant could therefore testify as to all of these facts based on his own personal knowledge, and the trial court did not abuse its discretion in overruling Harvey's objection to the form of the question.[5] Although magic words are not needed to make a proper objection, Harvey must articulate his concern with sufficient specificity to inform the trial judge of the alleged error when objecting.[6] Harvey's objection to the form of the question was properly overruled.

         (b) Harvey next argues that the admission of the razor blades and marijuana was error because the sergeant's lack of personal knowledge regarding the recovery of the items from Harvey's person[7] meant that a sufficient foundation for their admission was not established. In his brief before this Court, Harvey directs this Court's attention to OCGA § 24-9-901 (a), regarding authentication - an objection he did not raise at trial.[8] Because Harvey did not make a foundational objection based on authentication at trial, he cannot claim error on this basis on appeal. See Locke's Graphic & Vinyl Signs, Inc. v. Citicorp Vendor Finance, Inc., 285 Ga.App. 826, 828 (2) (a) (648 S.E.2d 156) (2007) ("An argument not raised in the trial court is waived and cannot be raised for the first time on appeal."). Further, while a lack of personal knowledge may be a valid foundational objection for a witness's testimony, see Tolver v. State, 269 Ga. 530, 532 (2) (500 S.E.2d 563) (1998), it is physical evidence, not witness testimony, that is in issue. Harvey points us to no other authority requiring us to prohibit the admission of physical evidence where the witness laying the foundation lacks personal knowledge that the evidence was obtained off the defendant's person. Therefore we cannot say the trial court erred in overruling his objection to the admission of the razor blades and marijuana into evidence.

         (c) Harvey also argues that the evidence is insufficient to support his conviction for possession of less than an ounce of marijuana because the sergeant who testified as to Harvey's possession lacked personal knowledge. Again, we disagree.

         Under OCGA § 16-13-30 (j) (1), it is unlawful for any person to possess marijuana. At trial, the sergeant testified that marijuana was taken from Harvey's pocket and entered into evidence. Harvey did not object to this testimony, [9] and the marijuana was later admitted into evidence over Harvey's objection. The question of whether the marijuana was possessed by Harvey was a question of fact for the jury, and the evidence was sufficient to conclude beyond a reasonable doubt that Harvey was guilty of possession of less than one ounce of marijuana. See Johnson v. State, 299 Ga.App. 706, 711 (1) (e) (683 S.E.2d 659) (2009) (evidence sufficient where marijuana was found in defendant's pocket during arrest); Sirmans v. State, 301 Ga.App. 756, 756 (1) (688 S.E.2d 669) (2009) (same).

         2. (a) Harvey argues that the evidence is insufficient to support his conviction for possession of a firearm during the commission of a felony. We agree.

         OCGA § 16-11-106 (b) provides that it is unlawful for a person to have "on or within arm's reach of his or her person a firearm" during the commission of certain drug-related crimes. Harvey was convicted of having a gun "within arm's reach of his person." Harvey's conviction cannot be sustained unless there was evidence that he had immediate access to the weapon while possessing cocaine with intent to distribute. See Clyde v. State, 298 Ga.App. 283, 285-86 (2) (680 S.E.2d 146) (2009); see also Davenport v. State, 308 Ga.App. 140, 148 (1) (c) (706 S.E.2d 757) (2011) ("when a defendant is charged under this statute, the evidence is sufficient to sustain a conviction when it is shown at trial that a firearm was within arm's reach of the defendant at any point during the commission of the crime, thus giving the defendant immediate access ...


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