                              FIRST DIVISION
                                BARNES, P. J.
                        PHIPPS, P. J., AND MERCIER, J.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                   February 10, 2016




In the Court of Appeals of Georgia
 A15A2071. BARFIELD v. STATE.

      MERCIER, Judge.

      We granted the application for discretionary appeal in this case to review the

evidence supporting the trial court’s decision to revoke Lee Barfield’s probation.

Because the evidence did not support the trial court’s judgment, even under the more

lenient standard applicable to a probation revocation, we reverse.

      In 1999, Barfield pled guilty to two counts of burglary, statutory rape, and

robbery by force. He was sentenced to 20 years, with 6 to serve in confinement, and

the final 14 years to be served on probation. In 2013 the State filed a petition to

revoke his probation, alleging that Barfield had committed armed robbery and failed

to pay court-ordered fines. A revocation hearing was held where Barfield contested

the petition, arguing that the State had failed to meet their burden.
      The evidence presented by the State at the hearing described an armed robbery

that occurred on August 26, 2013 at a package store in Helena. The owner of the

package store testified that Barfield entered her store at approximately 4:05p.m., and

asked for a bottle of Patron. When shown a bottle of Patron, Barfield expressed

dissatisfaction with its size, thanked the owner, and left.

      Approximately a minute and half later, a different individual entered the store

and proceeded to rob the owner at knife point. At some point during the robbery, the

store owner was able to retrieve a handgun and opened fire at her attacker. Several

of her shots struck the assailant, and he left the store quickly, climbed into the

passenger’s side of a white car, and sped off.

       Subsequently, a team of GBI officers went to the package store and conducted

a crime scene investigation. At the crime scene they collected a bag of trash, one

sunflower seed, two swabs of blood, a bullet fragment, and two latent fingerprints.

The sunflower seed, which was found inside the store, was submitted to the crime lab

for DNA analysis. That analysis revealed that Barfield’s DNA was on the sunflower

seed. The getaway vehicle was also processed, and a bag of sunflower seeds was

discovered between the center console and the front passenger’s seat. The GBI agent

tasked with investigating the vehicle admitted that no evidence was found linking

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Barfield with the bag of sunflower seeds recovered from the car, and that there were

millions of similar bags in circulation. The agent did not find any fingerprints or DNA

linking Barfield with the vehicle, either. Ultimately, the only evidence the State

produced linking Barfield to the crime was the sunflower seed carrying his DNA,

which was found inside the store.

      The trial court found that a preponderance of the evidence showed that Barfield

had violated the terms and conditions of his probation by taking part in an armed

robbery, and thus revoked the balance of his probated sentence.

      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 court will not interfere with a revocation
      unless there has been a manifest abuse of discretion on the part of the
      trial court.


Scott v. State, 305 Ga. 596 (699 SE2d 894) (2010) (citations, punctuation, and

footnote omitted).

      Barfield contends that the trial court erred in revoking his probation because

the State failed to show by a preponderance of the evidence that he took part in the

armed robbery. “It is, of course, true that mere presence or association, without any


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evidence to show further participation in the commission of the crime, is insufficient

to authorize a conviction.” Clemente v. State, 331 Ga. App. 84, 86 (769 SE2d 790)

(2015) (citation and punctuation omitted).

      Here the State showed only that Barfield was in the package store moments

before the armed robbery took place. While the sunflower seed with Barfield’s DNA

places him at the scene of the crime, Barfield’s presence is not in dispute. The State

failed to provide any evidence at the probation revocation hearing to show his

participation in the commission of the armed robbery. Compare Newsome v. State,

324 Ga. App. 665, 667 (1) (751 SE2d 474) (2013).

      The State contends that the presence of the bag of sunflower seeds in the

getaway car links Barfield to the crime as the getaway driver. While it is undisputed

that a sunflower seed with Barfield’s DNA was found at the scene, there is no

evidence linking that particular seed with the bag of sunflower seeds found in the

getaway car, none of Barfield’s DNA was found in the car, and none of his

fingerprints were found in the car either. Here, the evidence equally supports the

reasonable hypothesis that Barfield merely spat out a sunflower seed while shopping

in the package store, moments before an armed robbery committed by someone else



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took place. There is no dispute that Barfield was not the person who actually held up

the store.

      The evidence presented by the State was insufficient under a preponderance of

the evidence standard to exclude every other reasonable hypothesis save that of guilt.

See Gray v. State, 313 Ga. App. 470, 473-474 (2) (722 SE2d 98) (2011). The

evidence was therefore insufficient to support a finding that Barfield committed the

offense with which he was charged. Consequently, the trial court abused its discretion

by revoking Barfield’s probation.

      Judgment reversed. Barnes, P. J., and Phipps, P. J., concur.




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