DILLARD, C. J., DOYLE, P. J., and MERCIER, J.
March 2007, Roger Jason Beavers entered a guilty plea in the
Superior Court of Union County, Georgia to two counts of
aggravated assault and one count of false imprisonment, and
was sentenced to a total of twenty years, with eight years to
be served in confinement and the following twelve to be
served on probation. His sentence included a general
condition of probation that Beavers must "not violate
the criminal laws of any governmental unit." On
September 16, 2015, a "Warrant for Arrest of
Probationer" was issued in Union County, and a probation
revocation petition was filed on February 6, 2017, alleging
that Beavers had violated the conditions of his probation by
"violat[ing] the criminal laws of any governmental unit,
" specifically, committing the new offense of possession
of a firearm by a convicted felon in Cherokee County, North
Carolina on or about August 27, 2015. Following a probation
revocation hearing on February 6, 2017, the trial court
revoked the probation provisions of Beavers's original
sentence on the basis of the firearm offense. In an order
entered the same day, the trial court revoked four years, ten
months and twenty-five days of Beavers's probation,
noting that this period of confinement would run until
December 31, 2021. This period is less than the balance of
Beavers's probation, which ends March 6, 2027.
to our grant of his application for discretionary review,
Beavers appeals from the trial court's order revoking his
probation, contending that the evidence was insufficient to
demonstrate that he committed the new offense of possession
of a firearm by a convicted felon; that the trial court erred
in admitting hearsay testimony regarding a document executed
by Beavers acknowledging that he was prohibited from
possessing a firearm; and that the trial court erred in
imposing a greater sentence than was authorized by law. For
the reasons that follow, we affirm the trial court's
revocation of Beavers's probation, but vacate the
revocation sentence and remand this case with direction.
first examine Beavers's contentions regarding the
sufficiency of the evidence to support the trial court's
finding that he violated his probation by committing a new
crime while on probation. "A court may not revoke any
part of any probated or suspended sentence unless . . . the
evidence produced at the revocation hearing establishes by a
preponderance of the evidence the violation or violations
alleged." OCGA § 42-8-34.1 (b). "This [C]ourt
will not interfere with a revocation unless there has been a
manifest abuse of discretion on the part of the trial court.
Accordingly, if admissible evidence is presented in support
of the allegations regarding revocation of probation, this
[C]ourt will affirm." Haji v. State, 331
Ga.App. 116, 118 (3) (769 S.E.2d 811) (2015) (citations and
Beavers is alleged to have committed the new crime of
possession of a firearm by a convicted felon in North
Carolina. N. C. Gen. Stat. § 14-415.1 (a) pertinently
provides that "[i]t shall be unlawful for any person who
has been convicted of a felony to purchase, own, possess, or
have in his custody, care, or control any firearm[.]"
Beavers does not dispute that he had previously been
convicted of a "felony, " or that the firearm at
issue was a "firearm, " as those terms are defined
and explained in that statute. See N. C. Gen. Stat. §
14-415.1 (a), (b). Rather, he contends that the evidence at
the revocation hearing demonstrated only his mere proximity
to the firearm and was thus insufficient to demonstrate that
he possessed it, and that the circumstantial evidence failed
to exclude every reasonable hypothesis other than his guilt.
"Although the State's burden of proof is lower in a
probation revocation case, a probationer's mere presence
in the area where the prohibited item is found will not
justify a probation revocation based on possession of the
prohibited item, even under the more relaxed preponderance of
the evidence standard." Boatner v. State, 312
Ga.App. 147, 149 (1) (717 S.E.2d 727) (2011) (citation and
punctuation omitted). "A person is in constructive
possession of an object when he knowingly has both the power
and intention at a given time to exercise dominion over the
object. A finding of constructive possession must be based
upon some connection between the defendant and the contraband
other than spatial proximity." Fluker v. State,
296 Ga.App. 347, 349 (674 S.E.2d 404) (2009) (citations and
in the light most favorable to upholding the trial
court's findings (see Marks v. State, 306
Ga.App. 824 (703 S.E.2d 379) (2010)), the evidence at the
revocation hearing in this case included the following. On
August 27, 2015, Deputy R. C. with the Cherokee County
Sheriff's Office in North Carolina and C. H., a probation
officer, went to Beavers's residence in Cherokee County,
North Carolina to perform a warrantless search of the
residence pursuant to the Fourth Amendment waiver that was a
special condition of Beavers's probation sentence. When
they arrived at Beavers's residence, C. H. spoke with
Beavers, who was there alone. Deputy R. C. turned right
inside the residence, to one of the two bedrooms in the home.
Inside the closet in that bedroom, Deputy R. C. found a pair
of coveralls with the legs tied at the bottom, and a shotgun
inside one of the legs.
testified at the probation revocation hearing that the
residence that was searched belonged to him. Deputy R. C.
testified that he "would . . . consider [the bedroom in
which the gun was found to be] the master bedroom." When
asked if anything else was found inside the closet where the
gun was located, Deputy R. C. testified, "[j]ust his
personal belongings, clothes, things along that line."
He testified that he was not aware of anyone else living in
Beavers's residence. The State introduced a copy of a
magistrate's order from Cherokee County, North Carolina,
finding that there was probable cause to believe that Beavers
committed the offense of possession of a firearm by a
convicted felon on August 27, 2015.
from Deputy R. C. demonstrated that Beavers's mother J.
M. B. lived in another home approximately 30 to 40 yards away
from Beavers's residence. Beavers's son A. B., who
was 19 years old at the time of the revocation hearing,
testified that at the time of the hearing, he lived with his
grandmother J. M. B. but he also lived at Beavers's
residence when Beavers was home. He testified that in August
2015, he was living with Beavers, that the bedroom to the
right of the front door of the home was A. B.'s, and that
he had placed the gun in the coveralls in the closet. A. B.
testified that on the day in question, he had been out
hunting, stopped at Beavers's residence for water, and
put the gun inside the coveralls so that Beavers would not
see it. A. B. testified that this occurred around noon, when
Beavers was at work.
also testified that he usually kept his gun at J. M. B.'s
home, and when asked where in J. M. B.'s home the gun was
kept, he said "[i]n my room." He noted that he had
a room in both homes and that his room at J. M. B.'s
residence had a gun rack. His explanation for why he did not
walk the estimated 30 to 40 yards to J. M. B.'s residence
to put the gun away, when Beavers was at work and A. B. had
"three or four more hours" to take the gun to J. M.
B.'s residence before Beavers came home, was that he had
made a "stupid mistake."
testified that when Beavers was arrested, A. B. told Deputy
R. C. that the shotgun belonged to him, and that he had
placed the gun in Beavers's home. However, Deputy R. C.
testified that when he escorted Beavers to the patrol
vehicle, A. B. was present outside Beavers's home, but
Deputy R. C. did not speak with A. B. Deputy R. C. testified
that J. M. B. had previously reported A. B. as a runaway, and
it was Deputy R. C.'s understanding at that time that A.
B. lived with J. M.B., as J. M. B. showed the Deputy A.
B.'s bedroom at her residence.
Beavers's girlfriend M. B. testified that she and Beavers
shared the master bedroom in Beavers's residence, which
she stated is on the right side of the residence. She then
said the master bedroom is on the right side of the residence
if the residence is entered from the back door. On
cross-examination, M. B. admitted that in a prior North
Carolina criminal case involving a shooting in which Beavers
was present, she gave "two different stories on the
stand" and was charged with perjury in connection with
her testimony. She testified that in that prior incident, she
had accidentally shot herself with a pistol, Beavers was with
her and they had had an argument, and she had initially told
law enforcement officers that Beavers had possessed the gun.
In the instant case, the court found A. B.'s and M.
B.'s testimony to have "no credibility."
disagree with Beavers that the evidence was insufficient to
support the finding that he violated North Carolina law and
thus the terms of his probation by committing the offense of
possession of a firearm by a convicted felon. The instant
case is distinguishable from Scott v. State, 305
Ga.App. 596 (699 S.E.2d 894) (2010), and Boatner,
supra, cited by Beavers. In those cases, the only evidence
linking the defendants to the contraband at issue was their
spatial proximity to the items. See Scott, supra at
599 (defendant was a passenger in a vehicle that belonged to
the driver and in which drugs were found in the center
console); Boatner, supra at 148-149 (1) (the only
evidence linking defendant to a rifle that was leaning
against the exterior of his trailer was spatial proximity; it
could have belonged to any of his neighbors). Here, in
contrast, the State elicited testimony demonstrating that
Beavers owned and resided in the home in which the firearm
was found hidden in clothing in a closet. "If the State
presents evidence that a defendant owned or controlled
premises where contraband was found, it gives rise to a
rebuttable presumption that the defendant possessed the
contraband." Bailey v. State, 294 Ga.App. 437,
439-440 (1) (669 S.E.2d 453) (2008) (citation and punctuation
This presumption of constructive possession arising from
ownership or control of the premises can be overcome by
evidence that other persons had equal access to the
contraband found there. But absent unrebutted affirmative
evidence demanding a finding of equal access, the question of
whether the ...