                              SECOND DIVISION
                                MILLER, P. J.,
                             BROWN and GOSS, JJ.

                   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 11, 2019




In the Court of Appeals of Georgia
 A18A1710. ALMEDA v. THE STATE.                                              GS-054C

      GOSS, Judge.

      We granted Jaylen Almeda’s application for a discretionary appeal in order to

consider whether the trial court erred when it revoked his probation because the State

did not tender the best evidence, consisting of a plea transcript and recordings, of

statements implicating him and because the State did not prove by a preponderance

of the evidence that Almeda violated the special conditions of his probation. We find

no error and affirm.

      OCGA § 42-8-34.1 (b) provides that a trial court “may not revoke any part of

any probated or suspended sentence unless the defendant admits the violation as

alleged or unless the evidence produced at the revocation hearing establishes by a

preponderance of the evidence the violation or violations alleged.” “[I]f some of the
allegations regarding revocation are supported by admissible evidence,” a trial court’s

decision to revoke probation “will be affirmed” as within the court’s discretion.

(Citation omitted.) Couch v. State, 246 Ga. App. 106, 107 (2) (539 SE2d 609) (2000).

      Thus viewed in favor of the trial court’s judgment, the record shows that in

May 2016, Almeda and Armani Breazeale were indicted for robbery by force and

theft by taking in connection with a December 2015 robbery. Almeda was also

indicted for battery and obstruction of an officer. On September 6, 2016, Almeda and

the State agreed at a plea hearing that Almeda would cooperate in finding a third

person involved in the crimes in exchange for a sentence of 12 years with 3 to serve

in prison. After Almeda pled guilty, the trial court sentenced Almeda to the negotiated

sentence and imposed special conditions of probation including “truthful testimony”

and “cooperat[ion] with the investigation of the case.” The special conditions of

Almeda’s probation included that he “shall testify fully and truthfully as to all

circumstances of this case and any related matters” and “shall cooperate with police

in the investigation of this case.” (Emphasis in original.)

      After the pronouncement of his sentence, Almeda testified that he and

Breazeale were a couple at the time of the crime; that they argued on the night in

question about Breazeale seeing another man named Bryan; that Almeda went

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through Breazeale’s cell phone messages while she was in the bathroom and saw that

she had an appointment to see the victim that evening; that Almeda became angry and

called his friend Grady to help him confront the victim; that Grady was on

methamphetamine at the time; and that the two men “jumped [the victim] together[.]”

Almeda failed to testify, however, that Breazeale knew that he and Grady were

planning to confront the victim.

      Approximately one week later, an investigator went to the Cobb County jail to

interview Almeda about the robbery. The results of this interview, along with a

review of recordings of calls between Almeda and Breazeale, led the investigator to

conclude that in his testimony at the plea hearing, Almeda had fabricated a motive for

the attack and had thus violated a special condition of his probation. The State then

filed a motion to revoke Almeda’s probation.

      At the revocation hearing, and over an objection on the basis of the best

evidence rule, Breazeale testified that, contrary to Almeda’s earlier testimony at the

plea hearing, which she had attended, she was involved in the plan to confront and

rob the victim and that parts of Almeda’s testimony had been false. Breazeale also

confirmed that she had spoken to Almeda by phone before the plea hearing and after

he was interviewed by the investigator. Breazeale confirmed the investigator’s

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conclusion that Almeda had lied at the plea hearing in order to exonerate her. The

investigator also testified, over hearsay and authentication objections, as to the results

of his investigation, including the telephone calls showing that Almeda had lied to the

investigator and fabricated a motive in order to exonerate Breazeale. The trial court

concluded that the State had proved by a preponderance of evidence that Almeda had

violated the special condition of his probation requiring him to cooperate and revoked

five years of his probation. This discretionary appeal followed.

      1. Almeda first argues that the trial court violated the best evidence rule when

it admitted (a) Breazeale’s account of Almeda’s testimony at the plea hearing rather

than the transcript of that hearing and (b) the investigator’s account of Almeda’s

jailhouse phone conversations rather than the recordings of those conversations.

These contentions lack merit.

      We review a trial court’s ruling on an evidentiary question only for an abuse

of discretion. McCoy v. State, 332 Ga. App. 626, 628 (774 SE2d 179) (2015).

      OCGA § 24-10-1002 provides that “[t]o prove the contents of a writing,

recording, or photograph, the original writing, recording, or photograph shall be

required.” “Given the similarity between Georgia’s new evidence code and the

Federal Rules of Evidence, it is proper that [we] give consideration and great weight

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to constructions placed on the Federal Rules by the federal courts.” (Citation and

punctuation omitted.) Williams v. State, 328 Ga. App. 876, 879 (1), n. 14 (763 SE2d

261) (2014); see also Sanchez v. Atlanta Union Mission Corp., 329 Ga. App. 158,

163, n. 7 (764 SE2d 178) (2014) (physical precedent only) (following Williams’s

direction and examining federal precedent on OCGA § 24-10-1002 et seq.).

      (a) As the Eleventh Circuit and other federal courts have noted, Federal Rule

1002 “requires production of an original document only when the proponent of the

evidence seeks to prove the content of the writing. It does not, however, require

production of a document simply because the document contains facts that are also

testified to by a witness.” (Citations and punctuation omitted.) Allstate Ins. Co. v.

Swann, 27 F.3d 1539, 1543 (II) (A) (11th Cir. 1994); see also Simas v. First Citizens’

Fed. Credit Union, 170 F.3d 37, 51 (II) (b) (1st Cir. 1999) (“there is no general rule

that proof of a fact will be excluded unless its proponent furnishes the best evidence

in his power,” such that a plaintiff could prove that he filed a loan application “simply

through his own trial testimony” as to that event). Longstanding Georgia law is to the

same effect. See Emmett v. Regions Bank, 238 Ga. App. 455, 458 (4) (518 SE2d 472)

(1999) (“‘It is not contrary to the best-evidence rule that oral testimony of a fact in

issue may be primary evidence thereof, although there is written evidence of the same

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fact’”), quoting Peterson v. Lott, 200 Ga. 390, 392-393 (1) (37 SE2d 358) (1946). It

follows that the trial court did not abuse its discretion when it overruled Almeda’s

best-evidence objection to Breazeale’s testimony concerning Almeda’s plea hearing.

Emmett, 238 Ga. App. at 458 (4) (trial court did not err in denying motion to strike

affidavits on best-evidence grounds where appellants did not seek to prove the

existence of documents proving the transactions at issue).

       (b) The transcript of the revocation hearing shows that Almeda objected to the

investigator’s testimony as to his review of the telephone calls between Almeda and

Breazeale on the grounds that the testimony was based on hearsay and that the

recordings were not authenticated. Not having objected on the ground that the

testimony did not rely on the best evidence, Almeda has waived this argument on

appeal. Jones v. State, 308 Ga. App. 99, 101-102 (2) (706 SE2d 593) (2011)

(appellant’s failure to object to the State’s omission of certified copies of prior

convictions on the basis of the best-evidence rule waived that argument on appeal).

       2. As we have noted, the special conditions of Almeda’s probation included

that he testify truthfully and that he cooperate with the State in its investigation of the

robbery at issue. The evidence before the trial court included the properly admitted

testimony of Breazeale and the investigator as to the recorded telephone calls

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showing that Almeda had lied to the investigator at the jail days after his plea and had

fabricated a motive in order to exonerate Breazeale. This evidence was sufficient to

sustain the trial court’s judgment that Almeda’s probation should be revoked. See

Hilley v. State, 344 Ga. App. 58, 64-65 (4) (806 SE2d 280) (2017) (supervising

psychologist’s testimony concerning a sex offender’s refusal to participate in

treatment, including polygraph testing, was sufficient to sustain the court’s revocation

of the offender’s probation).

      Judgment affirmed. Miller, P. J., and Brown, J., concur.




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