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Beavers v. State

Court of Appeals of Georgia, Fourth Division

June 19, 2018

BEAVERS
v.
THE STATE.

          DILLARD, C. J., DOYLE, P. J., and MERCIER, J.

          MERCIER, JUDGE.

         In 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.

         Pursuant 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.

         1. We 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 punctuation omitted).

         Here, 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 punctuation omitted).

         Viewed 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.

         Beavers 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.

         Testimony 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.

         A. B. 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."

         A. B. 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."

         We 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 omitted).

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 ...

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