MCFADDEN, P. J., BRANCH and BETHEL, JJ.
McFadden, Presiding Judge.
jury trial, Herbert Martin Lynn was convicted of one count of
burglary and one count of theft by taking. He appeals,
arguing that the trial court committed harmful error by
excluding certain testimony as hearsay. We agree. So we
not reach most of Lynn's other claims of error because
they are not likely to occur upon retrial. We do address
Lynn's claim that he received ineffective assistance of
counsel related to the failure to timely file a motion to
suppress because the pretrial suppression ruling may be
relevant upon retrial. We reject that claim because Lynn has
not made a strong showing that the damaging evidence would
have been suppressed had counsel timely filed the motion.
in the light most favorable to the verdict, Jackson v.
Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560)
(1979), the evidence showed that Dan and Harlee Skelton owned
the Garden Wright Nursery, a retail garden center. The
Skeltons were unable to re-finance the mortgage on the
property and the bank foreclosed on their loan, publishing
notice of a foreclosure sale on a particular Tuesday. In
anticipation of the business closing, the Skeltons held a
liquidation sale of their inventory. Afterwards, they began
removing to their residence the several hundred items that
had not sold. They worked through the week but did not
finish, then locked the property and barricaded the driveways
for the weekend.
Dan Skelton returned to the garden center on Monday morning,
he saw that almost all the property was gone. He called the
sheriff's department to report the apparent crime. At
some point, whether before or after Skelton called the
sheriff is unclear, a neighbor told Skelton that he had seen
Lynn on the property Sunday removing items. A deputy arrived
at the garden center and Skelton told him that he knew where
the property was. Lynn went to the garden center while law
enforcement officers were there. He told an investigator that
he had taken some of the property, which was on a trailer at
his house. Lynn returned to the nursery within the hour with
his truck and trailer. Several missing items, including four
or five metal tables, a tree boom, some broken brooms, and
bales of pine straw, were on the trailer. Lynn said that was
all the property he had taken.
that night, Skelton accompanied law enforcement officers to
Lynn's residence to identify property that had been taken
from the nursery but not returned by Lynn. Skelton removed 15
to 20 truckloads of items from Lynn's property, including
a Japanese maple tree worth $800, a metal washbasin, hoses,
several hundred hooks used for hanging baskets, drainage
pipe, a piece of decorative wrought iron fence, ground cover
mat, ornamental cabbage plants, spray paint, concrete pots,
grapevine plants, and an extension ladder.
testified on his own behalf. He testified that he was
interested in buying the real estate at the foreclosure sale,
so that Sunday he went to the garden center to assess it.
While he was there, he met a woman named Sheila Lanier. The
trial court refused to allow Lynn to testify about the
content of his conversation with Lanier on the ground that
the testimony would be hearsay. But he did allow Lynn to
testify that after meeting Lanier, Lynn believed that the
property at the garden center had been abandoned and that he
had permission to take it. Lynn testified that he returned to
his house, then he, his wife, and his children drove two
trucks, one with a trailer, to the garden center and spent 20
minutes loading some of the property onto the trailer.
next day, according to Lynn, a neighbor called Lynn's
wife and told her that a police officer was at the nursery.
Lynn drove over, spoke with an investigator, and admitted
that he and his family had taken some things. Lynn returned
the items and apologized for any misunderstanding. Lynn
testified that as he was speaking with the investigator again
about Sheila Lanier, Skelton walked up and denied knowing
testified that the items listed on the search warrant and
seized were items that he had purchased from the garden
center and other businesses before this incident. He
submitted into evidence receipts for items he had purchased
and photographs taken before the incident showing items of
property alleged to have been stolen.
sentencing hearing, the trial court allowed Lynn to make a
proffer of his testimony about Sheila Lanier. He testified in
great detail about their conversation. These details
supported his defense that his belief that he was free to
take the property was reasonable. Specifically, Lynn
testified that Lanier told him that she was a "very
close friend to the family" and that she "loved
them to death" Lanier told Lynn that she was a teacher
at a particular elementary school and that her husband was a
minister. According to Lynn, Lanier called the Skeltons'
children by name and talked about church events the two
families attended together. Lanier related to Lynn that
Harlee Skelton "had done nothing but cry about losing
the business." She told him that the Skeltons were
" making good money [and] current on their payments but
that the bank had called their note due for no reason at
to Lynn, Lanier told him that the Skeltons had told Lanier
that they had to be off the property by March 1. She asked
Lynn if he had seen the foreclosure advertisement. Lanier
explained to Lynn that she had been at the garden center for
four days in a row trying to catch the large Koi goldfish.
She told Lynn that "Dan and Harlee" had given them
to her the prior week. They said they would love to keep
them, but they didn't have anywhere to put them. Lynn
testified that he asked Lanier if she knew how much was owed
on the property and Lanier said yes, it was 500 and some odd
thousand dollars, giving the exact amount, although Lynn
could not recall the precise amount.
to Lynn, Lanier told him that it broke her heart that she
could not help the Skeltons, but they said that the bank
refused to work with them anymore. Lynn testified that Lanier
told him that when she talked with the Skeltons a couple of
days before, they told her that they were finished getting
what they wanted; they had stuff piled up everywhere and
simply didn't have anywhere else to put any more.
According to Lynn, Lanier told him that the Skeltons said
that if there was anything left that Lanier or anyone else
could use, they were welcome to it, but that they would have
to get it as soon as possible because the bank had already
said that they had to be gone from the property by March 1st
and that the property would actually be sold on the
courthouse steps Tuesday morning.
to Lynn, Lanier said that the Skeltons told the prior owner
the same thing: get whatever he wanted and tell anyone else
he knew after he got what he wanted. Lynn testified that
Lanier said, "So if there's anything that you want,
you had better get it now, because after Tuesday morning, no
one will be able to take anything. Because the property will
belong to someone else."
this conversation, Lynn testified, he went home then returned
to the garden center with his truck, trailer, and family.
According to Lynn, Lanier introduced herself to Lynn's
wife and children, who began helping her load pavers into her
Exclusion of testimony.
argues that the trial court committed reversible error by
preventing him from testifying about the details of his
conversation with Sheila Lanier. We agree.
Lynn's defense, in part, was that, after speaking with
Lanier, he believed that the property was abandoned. He
sought to testify about his conversation with Lanier to
demonstrate the reasonableness of his belief. The trial court
concluded that Lynn could not testify about what Lanier had
told him because that testimony was hearsay.
OCGA § 24-3-1 (a) defined hearsay as evidence
"which does not derive its value solely from the credit
of the witness but rests mainly on the veracity and
competency of other persons." "Hearsay is testimony
in court, or written evidence, of a statement made out of
court, the statement being offered as an assertion to show
the truth of the matters asserted therein, and thus resting
for its value upon the credibility of the out-of-court
asserter. [Cits.]" Bates v. State, 322 Ga.App.
319, 327 (5) (744 S.E.2d 841) (2013) (punctuation omitted).
proffered testimony about what Lanier told him was not
hearsay because he did not offer it to prove the truth of the
matter asserted. That is, it was offered to prove what Lanier
said to Lynn, not what Skelton said to Lanier; it rested on
Lynn's credibility, not Lanier's. Lynn sought to
introduce this evidence to demonstrate that he reasonably
believed he could take the property because it had been
abandoned. See Graham v. State, 331 Ga.App. 36, 39
(2) (769 S.E.2d 753) (2015) (testimony concerning an
out-of-court statement was not offered for its truth, but to
explain its effect on those who heard the statement and their
subsequent conduct, and was, therefore, admissible as
nonhearsay). See also United States v. Hanson, 994
F.2d 403, 406 (7th Cir. 1993) ("An out of court
statement that is offered to show its effect on the
hearer's state of mind is not hearsay.") (citations
state concedes that Lynn's proffered testimony about what
Lanier told him was not hearsay. But, it argues, the
exclusion of the testimony was harmless for two reasons: (1)
Lynn's belief that he could take the property was not
relevant; and (2) the testimony Lynn sought to introduce was
state argues that the exclusion of the testimony was harmless
error because the testimony was not relevant. Lynn sought to
introduce the testimony to demonstrate that he only took
property that he reasonably believed he could take. According
to the state, the only property for which Lynn was indicted,
however, was property that Lynn denied taking at all: he was
not indicted for the property he admitted taking and returned
to the garden center; he was only indicted for the property
that he denied taking and claimed that he had purchased
earlier. Since he was not indicted for taking the property he
admitted taking, the state argues, whether he reasonably
believed he could take that property was not relevant. We
disagree. Regardless of whether Lynn's belief was
relevant to the theft charge, it was relevant to the burglary
time of the incident, OCGA § 16-7-1 (a) provided,
"A person commits the offense of burglary when, without
authority and with the intent to commit a felony or theft
therein, he enters or remains within . . . any . . .
building. . . ." OCGA § 16-7-1 (a)
(2011). The indictment accused Lynn of committing
burglary by entering a building on the garden center premises
with the intent of committing a theft. "To convict of
the crime of burglary it is not sufficient merely to prove an
illegal entry, but there must also be evidence from which the
jury may conclude that there was an intent to commit a theft
or felony. The question of intent is for the determination of
the jury under the facts and circumstances proved."
Griffin v. State, 148 Ga.App. 311 (1) (251 S.E.2d
161) (1978) (citation and punctuation omitted). And
"gathering abandoned property . . . is not a
crime." McNeese v. State, 186 Ga.App. 410, 411
(2) (367 S.E.2d 235) (1988). The state concedes that at least
some of the items that were allegedly removed from garden
center buildings were items that Lynn later returned because
he took them under the belief that they were abandoned. So
whether Lynn had the intent to commit theft or instead
believed the property to have been abandoned when he
allegedly removed property from buildings was relevant to the
state also argues that the trial court's error was
harmless because the excluded testimony was cumulative of
admitted evidence. It argues that there is little material
difference between what Lynn proffered and what the jury
actually heard. We disagree.
determining whether [an] error [in admitting or excluding
evidence] was harmless, we review the record de novo and
weigh the evidence as we would expect reasonable jurors to
have done so. The test for determining nonconstitutional
harmless error is whether it is highly probable that the
error did not contribute to the verdict." Smith v.
State, 299 Ga. 424, 432 (2) (d) (788 S.E.2d 433) (2016)
(citation, punctuation, and footnote omitted).
state argues that Lynn's proffered testimony was
cumulative of the investigator's testimony and an audio
recording played for the jury of the conversation with Lynn
when Lynn returned to the garden center. The investigator
testified at trial that Lynn said that the previous day, he
had met a woman named Sheila who told him that she was good
friends with the Skeltons and that the Skeltons had given
permission for anyone to take whatever they wanted from the
nursery. The jury heard the following when the state played
the audio recording:
LYNN: [S]omeone got the wrong idea here . . . of what's
going on. . . . I stopped down yesterday evening, there was a
lady out here who's friends with Harlee and Dan, and
she's gathering up some stuff and one thing or another.
She -- we talked for 30 minutes or whatever. Her name's
Sheila. . . . She's friends with them. She told me that
Dan and them told her that they were done here. And I know
Dan left here Friday night with tractors and everything, he
left. She told me that Dan told [the former owner] and her
that he was done here, anything else anybody wanted to come
and help their self. And so, and of course we ain't
touched no (Inaudible) or anything like that. We got a few
tables and crap like that, junk mostly. But I just want to
make sure that we're cleared that they ain't -- this
ain't something where we stole anything, you know.
INVESTIGATOR: Okay. Well, obviously Dan and them are here.
LYNN: Right. I'll be glad to talk to him. ...