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

                    NOTICE: Motions for reconsideration m us t be
                    physically re ceived in our clerk’s office within ten days
                    of the date of decision to be deemed timely filed.
                                    http://www.gaappeals.us/rules


                                                                         June 19, 2018




In the Court of Appeals of Georgia
 A18A0323. BEAVERS v. THE STATE.

      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

                                          2
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 SE2d 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

                                           3
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 SE2d 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 SE2d 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 SE2d 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.

                                          4
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

                                            5
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.

                                          6
      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 SE2d 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)

                                           7
(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 SE2d 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 presumption of possession has been overcome is for the
      [factfinder] to resolve.


Dickerson v. State, 312 Ga. App. 320, 321 (1) (718 SE2d 564) (2011) (citations and

punctuation omitted) (emphasis supplied); see Owens v. State, 202 Ga. App. 785,

786-787 (2) (415 SE2d 704) (1992) (testimony that guns were found in common areas

of a residence owned by defendant authorized submission of the gun possession

charge to the jury; and testimony that there was no evidence of anyone else living


                                            8
inside the residence authorized the jury’s rejection of the defendant’s claim that the

guns belonged to his boarder). “In a probation revocation, issues of witness credibility

are reserved for the trial court.” Boatner, supra at 150 (3) (citation omitted).

       Here, the evidence gave rise to the presumption of Beavers’s constructive

possession of the shotgun, and the trial court found that the defense’s evidence to

rebut that presumption lacked credibility. “The circumstantial evidence need not

exclude every hypothesis of his guilt but only reasonable ones.” Moore v. State, 242

Ga. App. 208, 210 (1) (529 SE2d 210) (2000) (citation omitted). Additionally, there

was no evidence that others had equal access to the premises in which the firearm was

found. See generally Dickerson, supra. Because there was admissible evidence to

support the accusation that Beavers possessed a firearm while he was a convicted

felon in violation of North Carolina law, which constituted a violation of the conditions

of his probation, we disagree that the evidence was insufficient to support the trial

court’s revocation of his probation. See generally Haji, supra.

       2. Beavers contends that the trial court erred by allowing Officer E. M., a

Georgia probation officer, to testify that Beavers was given a written notice that he was

prohibited from possessing a firearm, because a different probation officer (Officer

K. B.) reviewed the document with Beavers and thus E. M.’s testimony constituted

                                            9
hearsay. The document in question (the “firearms acknowledgment”), signed by

Beavers and signed by K. B. as a witness to Beavers’s signature, advised that pursuant

to Georgia law and federal law, Beavers was prohibited from receiving, shipping,

possessing, transporting or attempting to purchase a firearm. We find Beavers’s

argument regarding the firearms acknowledgment unavailing.

      The State argued at the revocation hearing, and argues on appeal, that the

firearms acknowledgment was admissible under the business records exception to the

hearsay rule. See OCGA § 24-8-803 (6).1 At the hearing, Beavers’s counsel argued,

“[m]y only concern is that we don’t have the witness that went over this with

[Beavers]. . . .I understand [the prosecutor is] saying it’s a business records

exception, but we object to it coming in.” The trial court admitted the firearms


      1
         OCGA § 24-8-803 (6) pertinently provides: “[u]nless the source of information
or the method or circumstances of preparation indicate lack of trustworthiness and
subject to the provisions of Chapter 7 of this title, a memorandum, report, record, or
data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, if
(A) made at or near the time of the described acts, events, conditions, opinions, or
diagnoses; (B) made by, or from information transmitted by, a person with personal
knowledge and a business duty to report; (C) kept in the course of a regularly
conducted business activity; and (D) it was the regular practice of that business
activity to make the memorandum, report, record, or data compilation, all as shown
by the testimony of the custodian or other qualified witness or by certification that
complies with paragraph (11) or (12) of Code Section 24-9-902 or by any other statute
permitting certification.”

                                         10
acknowledgment and the related testimony pursuant to the business records exception.

A trial court’s determination that evidence is admissible under the business records

exception will not be reversed absent an abuse of discretion. Kilgore v. State, 295 Ga.

729, 730 (2) (763 SE2d 685) (2014).

      Beavers did not raise an objection at the hearing based on the foundation

required to admit a record under OCGA § 24-8-803 (6), and does not contend here

that the proper business records foundation was not laid. Rather, Beavers argues that

because K. B. (the probation officer who reviewed the firearms acknowledgment with

him) was not testifying about the document at the hearing, it constitutes inadmissible

hearsay. But as an exception to the general rule of excluding hearsay, OCGA § 24-8-

803 (6) permits the admission of business records based on “the testimony of the

custodian or other qualified witness[.]” Beavers does not contend that E. M. was not

a qualified witness, and has not demonstrated that the trial court abused its discretion

in admitting the firearms acknowledgment. See generally Kilgore, supra.

      3. Beavers contends that the trial court erred by not considering North Carolina

law when imposing the sentence in this case, and by revoking 4 years, 10 months and

25 days of his probation (the equivalent of 58 months and 25 days) because this

amount exceeds the maximum sentence for the North Carolina law that he violated

                                          11
(N.C. Gen. Stat. § 14-415.1 (a)) and thus exceeds the maximum sentence authorized

for revocation of his Georgia probation sentence based on the commission of that new

crime. See OCGA § 42-8-34.1 (d). We agree.

      OCGA § 42-8-34.1 (d) pertinently provides:

      If the violation of probation or suspension alleged and proven by a
      preponderance of the evidence . . . is the commission of a felony
      offense, the court may revoke no more than the lesser of the balance of
      probation or the maximum time of the sentence authorized to be imposed
      for the felony offense constituting the violation of the probation. For
      purposes of this Code section, the term ‘felony offense’ means:


       (1) A felony offense;


       (2) A misdemeanor offense committed in another state on or after July
      1, 2010, the elements of which are proven by a preponderance of
      evidence showing that such offense would constitute a felony if the act
      had been committed in this state[.]


Pursuant to OCGA § 16-1-3 (5), a felony is “a crime punishable by death, by

imprisonment for life, or by imprisonment for more than 12 months.”

      Here, Beavers was found to have violated North Carolina law by possessing a

firearm while a convicted felon, pursuant to N. C. Gen. Stat. § 14-415.1 (a). That

statute provides that “[e]very person violating the provisions of this section shall be

                                            12
punished as a Class G felon.” Id. According to North Carolina’s felony sentencing

statute, this violation is punishable by imprisonment for more than 12 months. See N.

C. Gen. Stat. § 15A-1340.17 (c), (d); N. C. Gen. Stat. § 15A-1340.11. Thus, the

violation of North Carolina law is a felony as defined by Georgia statute (see OCGA

§ 16-1-3 (5)) and the trial court was authorized to revoke the lesser of (1) the balance

of Beavers’s probation (10 years and one month at the time of the probation

revocation hearing, or the equivalent of 121 months) or (2) the maximum time of the

sentence authorized to be imposed for the felony offense of possession of a firearm

by a convicted felon. Beavers and the State disagree about which state’s law (North

Carolina’s or Georgia’s) determines “the maximum time of the sentence authorized to

be imposed” for his new offense.

      The State contends that the trial court correctly “looked to the Georgia statute

[OCGA § 16-11-131]” when sentencing Beavers. OCGA § 16-11-131 (b) provides that

possession of a firearm by a convicted felon is punishable by up to 5 years (equivalent

to 60 months). Beavers contends that the trial court should have instead considered

the maximum sentence prescribed by North Carolina law for the violation of N. C.

Gen. Stat. § 14-415.1 (a). The maximum punishment authorized for the offense of

possession of a firearm by a convicted felon under North Carolina law depends on the

                                          13
defendant’s criminal history and the presence or absence of mitigating or aggravating

factors. See N. C. Gen. Stat. § 15A-1340.17 (c), (d). But even assuming that a

defendant’s criminal history falls under the highest “prior record level” under the North

Carolina sentencing statute, and assuming the presence of aggravating factors, the

maximum punishment authorized for this offense would be 39 months. Id.

      “When we consider the meaning of a statute, we must presume that the General

Assembly meant what it said and said what it meant. When a statute contains clear and

unambiguous language, such language will be given its plain meaning and will be

applied accordingly.” Williamson v. State, 295 Ga. 185, 186 (1) (758 SE2d 790)

(2014) (citations and punctuation omitted). OCGA § 42-8-34.1 (d) refers to the

“maximum time of the sentence authorized to be imposed for the felony offense

constituting the violation of the probation.” (Emphasis supplied). The definition of

“felony offense” in that statue includes crimes that are felonies, or are misdemeanors

but would be felonies if committed in Georgia. OCGA § 42-8-34.1 (d) (1)-(3). Thus,

when the new offense in question is a felony, the maximum punishment referred to

OCGA § 42-8-34.1 (d) is the punishment for that felony. The statute does not state

that the maximum punishment to be considered for such an offense is the punishment

provided for the equivalent offense under Georgia law. See OCGA § 42-8-34.1 (d).

                                           14
      The authorized punishment for Beavers’s violation of N.C. Gen. Stat. § 14-

415.1 (a) (at most, 39 months)2 is less than the balance of his probation at the time of

the probation revocation hearing (121 months, ending March 6, 2027). Pursuant to

OCGA § 42-8-34.1 (d), the trial court was authorized to revoke no more of Beavers’s

probation time than the maximum time of the sentence authorized to be imposed for

his violation of N. G. Gen. Stat. § 14-415.1 (a) by N. C. Gen. Stat. § 15A-1340.17 (c),

(d). We therefore vacate Beavers’s revocation sentence and remand this case for

resentencing.

      Judgment affirmed in part; judgment vacated in part and case remanded with

direction. Dillard, C. J., and Doyle, P. J., concur.




      2
        The maximum punishment authorized may be less than 39 months, depending
on Beavers’s criminal history and whether mitigating or aggravating factors were
present. See N. C. Gen. Stat. § 15A-1340.17 (c), (d).

                                          15
