                                FIFTH DIVISION
                               MCFADDEN, P. J.,
                            BRANCH and BETHEL, 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


                                                                    October 30, 2017




In the Court of Appeals of Georgia
 A17A0898. HARVEY v. THE STATE.

      BETHEL, Judge.

      Christopher David Harvey appeals the denial of his motion for a new trial,

arguing that the trial court erred in several respects. Harvey argues that the trial court

should have sustained his objection that the police sergeant who testified regarding

items found on Harvey’s person lacked personal knowledge. Accordingly, he

contends that the admission of those items into evidence was error. Harvey further

argues that the evidence was insufficient to support his convictions for possession of

marijuana, possession of a firearm during a felony, and possession of a firearm by a

convicted felon. Because the trial court did not err in overruling Harvey’s objection

to the police sergeant’s testimony or the admission of the items, the evidence is

sufficient to affirm his conviction for possession of marijuana. However, we agree
with Harvey that the evidence was insufficient to support his convictions for

possession of a firearm during a felony and possession of a firearm by a convicted

felon, and we reverse those convictions.

      On appeal from a criminal conviction, we view the evidence in the light
      most favorable to the verdict, with the defendant no longer enjoying a
      presumption of innocence. We neither weigh the evidence nor judge the
      credibility of witnesses, but determine only whether, after viewing the
      evidence in the light most favorable to the prosecution, a rational trier
      of fact could have found the essential elements of the crime beyond a
      reasonable doubt.


McMullen v. State, 325 Ga. App. 757, 758 (1) (754 SE2d 798) (2014) (footnote

omitted). So viewed, the record shows that on March 20, 2015, the Warner Robins

Police Department executed a search warrant on an apartment unit. After the front

door was rammed open, an officer saw a black male run to a back bedroom. The

officer kicked the bedroom door open, entered the room, and ordered the individual

to the ground. The officer observed a gun on the floor next to where the individual

was lying. The officer did not recall anyone else being present in the back bedroom

at the time, and the officer did not search the individual or notice anything else aside

from the firearm in the room. The officer could not recall the identity of the individual

he detained in the back bedroom and did not identify Harvey as the person he

                                           2
detained near the gun on the floor. Several other individuals were found in the

apartment at the same time, some of whom were also arrested.

      Sometime that evening (after the officer had pursued the individual to the back

bedroom, apprehended the individual, and left the bedroom) a sergeant walked back

to the room. There the sergeant saw several officers, as well as Harvey and another

individual in custody on the floor. The sergeant observed several pieces of crack

cocaine on the floor within approximately six to seven inches of Harvey, but did not

see a gun near either of the individuals in custody on the floor. Rather, the sergeant

observed the gun lying on the kitchen counter, which he testified was retrieved from

the bedroom.1 An additional gun was recovered from a backpack in the living room.2

      At trial, the State asked the sergeant to recount the items recovered from

Harvey. The defense objected, arguing that the sergeant lacked personal knowledge.

After confirming that the sergeant neither conducted nor observed the search of

Harvey, the trial court sustained the objection because the sergeant would have been

relying on hearsay in giving his response. However, the trial court later permitted the



      1
      There was no testimony at trial regarding who secured the gun found in the
bedroom and placed it on the kitchen counter, or when.
      2
          No evidence was presented at trial connecting the backpack to Harvey.

                                          3
sergeant to testify, over defense counsel’s objection,3 as to the items he was handed

pertaining to Harvey. The sergeant testified that he entered into evidence razor blades,

cash, and marijuana, which were all obtained from Harvey’s person.

      The jury found Harvey guilty of possession of cocaine with intent to distribute,

possession of an illegal substance within 1,000 feet of a housing project, possession

of a firearm during the commission of a felony, possession of less than an ounce of

marijuana, and possession of a firearm by a convicted felon. Harvey filed a motion

for a new trial, which the trial court denied after a hearing.

      1. (a) Harvey argues that the trial court erred by overruling his objection that

the sergeant lacked personal knowledge that the razor blades, marijuana, and currency

had been retrieved from Harvey’s person. But our review of the record shows that the

sergeant was asked whether he was “handed any items pertaining to Mr. Harvey[.]”

Defense counsel objected “to the form” of the question on the basis that the sergeant

“may not have personal knowledge that [the items] originated from Mr. Harvey.” The

trial court properly overruled the objection, as the question posed by the State—on

its face—did not call for an answer outside the sergeant’s knowledge. The sergeant


      3
       Defense counsel objected “to the form” of the question on the basis that the
sergeant lacked personal knowledge that the items originated from Harvey.

                                           4
participated in the investigation of the criminal activity at the residence (including a

search of the premises) knew that a search of Harvey’s person was occurring, and was

present in the residence while the search was being conducted. The sergeant conceded

at trial that he did not personally conduct or observe the search of Harvey’s person,

but was handed razor blades, cash, and a small bag of marijuana to enter into

evidence.4 The sergeant could therefore testify as to all of these facts based on his

own personal knowledge, and the trial court did not abuse its discretion in overruling




      4
       After the sergeant’s responded that he was “present” while the searches were
being conducted, the sergeant was asked:

      Okay, so, so you can’t testify as to what, what may or may not have been
      discovered when he was searched then? You just know that he was
      arrested and it would have been protocol for them to have searched him?


The sergeant responded:

      Searched and then handed me any property that I then place in a bag and
      tag as the evidence and enter it into the evidence.


 To our reading, the sergeant’s testimony clearly accepts the premise of the question
that he cannot testify as to what may or may not have been discovered when Harvey
was searched.

                                           5
Harvey’s objection to the form of the question.5 Although magic words are not

needed to make a proper objection, Harvey must articulate his concern with sufficient

specificity to inform the trial judge of the alleged error when objecting.6 Harvey’s

objection to the form of the question was properly overruled.

      (b) Harvey next argues that the admission of the razor blades and marijuana

was error because the sergeant’s lack of personal knowledge regarding the recovery

of the items from Harvey’s person7 meant that a sufficient foundation for their

admission was not established. In his brief before this Court, Harvey directs this

Court’s attention to OCGA § 24-9-901 (a), regarding authentication — an objection

he did not raise at trial.8 Because Harvey did not make a foundational objection based

on authentication at trial, he cannot claim error on this basis on appeal. See Locke’s

Graphic & Vinyl Signs, Inc. v. Citicorp Vendor Finance, Inc., 285 Ga. App. 826, 828


      5
     We review the trial court’s admission of testimony for abuse of discretion. See
McDaniel v. State, 263 Ga. App. 625, 630 (2) (588 SE2d 812) (2003).
      6
          See Ellis v. State, 287 Ga. 170, 172 (695 SE2d 35) (2010).
      7
        The sergeant had knowledge as to whether the razor blades and marijuana
were the same ones he entered into evidence at the scene. But the record does not
establish that the sergeant had personal knowledge as to whether the items were
actually found in Harvey’s pockets.
      8
          Harvey also did not raise any objection as to hearsay or chain-of-custody.

                                           6
(2) (a) (648 SE2d 156) (2007) (“An argument not raised in the trial court is waived

and cannot be raised for the first time on appeal.”). Further, while a lack of personal

knowledge may be a valid foundational objection for a witness’s testimony, see

Tolver v. State, 269 Ga. 530, 532 (2) (500 SE2d 563) (1998), it is physical evidence,

not witness testimony, that is in issue. Harvey points us to no other authority

requiring us to prohibit the admission of physical evidence where the witness laying

the foundation lacks personal knowledge that the evidence was obtained off the

defendant’s person. Therefore we cannot say the trial court erred in overruling his

objection to the admission of the razor blades and marijuana into evidence.



      (c) Harvey also argues that the evidence is insufficient to support his

conviction for possession of less than an ounce of marijuana because the sergeant

who testified as to Harvey’s possession lacked personal knowledge. Again, we

disagree.

      Under OCGA § 16-13-30 (j) (1), it is unlawful for any person to possess

marijuana. At trial, the sergeant testified that marijuana was taken from Harvey’s




                                          7
pocket and entered into evidence. Harvey did not object to this testimony,9 and the

marijuana was later admitted into evidence over Harvey’s objection. The question of

whether the marijuana was possessed by Harvey was a question of fact for the jury,

and the evidence was sufficient to conclude beyond a reasonable doubt that Harvey

was guilty of possession of less than one ounce of marijuana. See Johnson v. State,

299 Ga. App. 706, 711 (1) (e) (683 SE2d 659) (2009) (evidence sufficient where

marijuana was found in defendant’s pocket during arrest); Sirmans v. State, 301 Ga.

App. 756, 756 (1) (688 SE2d 669) (2009) (same).

      2. (a) Harvey argues that the evidence is insufficient to support his conviction

for possession of a firearm during the commission of a felony. We agree.

      OCGA § 16-11-106 (b) provides that it is unlawful for a person to have “on or

within arm’s reach of his or her person a firearm” during the commission of certain

drug-related crimes. Harvey was convicted of having a gun “within arm’s reach of his

person.” Harvey’s conviction cannot be sustained unless there was evidence that he

had immediate access to the weapon while possessing cocaine with intent to

distribute. See Clyde v. State, 298 Ga. App. 283, 285-86 (2) (680 SE2d 146) (2009);


      9
        Harvey’s only objection was made earlier in the colloquy and was limited to
the form of a question posed to the sergeant, as detailed in Division 1 (a).

                                          8
see also Davenport v. State, 308 Ga. App. 140, 148 (1) (c) (706 SE2d 757) (2011)

(“when a defendant is charged under this statute, the evidence is sufficient to sustain

a conviction when it is shown at trial that a firearm was within arm’s reach of the

defendant at any point during the commission of the crime, thus giving the defendant

immediate access to the weapon”). The State need only prove that the “defendant

passed even momentarily within arm’s reach of the gun.” Gibson v. State, 223 Ga.

App. 103, 103 (1) (476 SE2d 863) (1996).

      There is no evidence showing that Harvey had a gun on his person. Rather, the

gun was retrieved from the bedroom where it was found next to an unidentified

individual.10 Testimonial evidence established that at some point afterwards, Harvey

was found in the room (with another person in custody) and the crack cocaine was

found next to him. While Harvey does not appear to dispute his possession of the

crack cocaine, there is no evidence showing that Harvey, as opposed to some other

person, exercised dominion over the gun. Therefore, we must reverse this conviction.

See Clyde, 298 Ga. App. at 285-86 (2) (reversing conviction where there was no

      10
         The officer who first entered the bedroom, detained the individual, and
observed the gun next to that individual did not identify Harvey as the person he
detained. The only other testimony establishing that Harvey was in the bedroom came
from the sergeant, who also observed another detained individual in the bedroom and
did not observe a gun in the room.

                                          9
evidence presented as to the distance between the firearm and the drugs). Compare

Gibson, 223 Ga. App. at 103 (1) (defendant’s possession of cocaine and of the firearm

established by his dominion over his residence).

      (b) Finally, Harvey argues that the evidence is insufficient to support Harvey’s

conviction for possession of a firearm by a convicted felon because the evidence fails

to prove beyond a reasonable doubt that the firearm was in his possession. We agree.

      In order to violate OCGA § 16-11-131 (b), Harvey needed only to possess, not

to own, the gun in question. Parramore v. State, 277 Ga. App. 372, 373 (626 SE2d

567) (2006). “Possession can be either actual or constructive.” Id. “A person who

knowingly has direct physical control over a thing at a given time is in actual

possession of it.” Mantooth v. State, 335 Ga. App. 734, 735 (1) (a) (783 SE2d 133)

(2016) (citation omitted). Here, there is no evidence that Harvey had direct physical

control over the gun because the witness testimony fails to establish the identity of

the person next to whom the gun was found.

      It is undisputed that Harvey was found in the apartment where two guns were

located. The State was therefore required to prove constructive possession. “A person

who, though not in actual possession, knowingly has both the power and the intention

at a given time to exercise dominion or control over a thing is then in constructive

                                         10
possession of it.” Parramore, 277 Ga. App. at 373 (citation omitted). Constructive

possession may be proved by circumstantial evidence. Id. “As long as there is slight

evidence of access, power, and intention to exercise control or dominion over the

contraband, the question of fact regarding constructive possession remains within the

domain of the trier of fact.” Mantooth, 335 Ga. App. at 736 (1) (a) (citation omitted).

But “[m]erely finding contraband on premises occupied by the defendant does not

support a conviction if the evidence shows that persons other than the defendant had

equal opportunity to commit the crime. Likewise, mere spatial proximity between the

defendant and the contraband will not support a finding of constructive possession.”

Peterson v. State, 252 Ga. App. 469, 471 (2) (556 SE2d 514) (2001) (footnotes

omitted).

      The gun Harvey was charged with possessing was found on the bedroom floor

next to an unidentified individual. A sergeant testified that a couple of papers bearing

Harvey’s name were found in the closet of that bedroom, but Harvey’s name did not

appear on the lease for the apartment and there was no evidence that Harvey had any

clothing or personal items there. Compare Peterson, 252 Ga. App. at 471-72 (2) (no

evidence that defendant had any clothing or personal items in the apartment where

guns were found). Thus, the only evidence linking Harvey to the gun, other than his

                                          11
proximity to it, was the discovery of paperwork bearing his name in a closet of the

apartment. This circumstantial evidence does not provide a link between Harvey and

the gun, nor does it exclude the possibility that the gun belonged to others present in

the apartment — such as the other individual detained in the bedroom or those

individuals found in the living room. Accordingly, the conviction of possession of a

firearm by a convicted felon must be reversed. See Peterson, 252 Ga. App. at 471-72

(2) (reversing conviction of possession of a firearm by a convicted felon where

defendant fled to a bedroom following officer’s entry into apartment and officers

discovered firearms in that bedroom closet as well as paperwork bearing defendant’s

name).

      Judgment affirmed in part and reversed in part. McFadden, P. J.,concurs

specially in Division 1 and fully in Division 2. Branch, J., concurs in Division 1 in

judgment only and fully in Division 2.




                                          12
 A17A0898. HARVEY v. THE STATE.



      MCFADDEN, Presiding Judge, concurring fully in part and specially in part.

      I concur fully in Division 2 of the majority opinion, but only in the judgment

of Division 1. In my opinion, the analysis in Division 1 is unnecessary because the

arguments addressed there are founded on appellant Harvey’s misreading of the

evidence.

      Those arguments are founded on Harvey’s contention that the state failed to

establish that the testifying sergeant had personal knowledge that certain items —

razor blades, marijuana and currency — had been found on Harvey’s person. The

majority accepts that contention, finding that the sergeant “conceded at trial that he

did not personally conduct or observe the search of Harvey’s person[.]” But the

sergeant did not so concede.
      It is true that when the trial court asked, “Did he see it come out of [Harvey’s]

pocket?”, the sergeant replied, “No, sir.” But the antecedent of “it” is not the items

at issue, but rather “[s]everal crack cocaine rock pieces lying on the floor to the side

of Mr. Harvey.”

      Subsequently, and before testifying that the items at issue “were removed from

Mr. Harvey’s pocket[s],” the sergeant testified that he did personally observe the

search of Harvey’s person. When asked if he saw the search being conducted, the

sergeant testified:

      Throughout the entire apartment I was present at the time all subjects
      arrested and not arrested were searched. I was within two to three feet
      of every individual being searched; however, witnessing that with my
      own eyes being present in the room, yes, sir, nearby but exactly saying
      what was taken from his person and not told by the officer that
      conducted the search.

      Thus, contrary to the faulty factual premise of the appellant’s arguments

accepted in Division 1 of the majority, the record shows that the sergeant was not

relying on hearsay from the officer who conducted the search, but instead was

testifying from his own personal knowledge based on having witnessed the search of

Harvey. Accordingly, although I disagree with the analysis of the issues addressed in

Division 1, I agree with the majority’s conclusions that the trial court correctly



                                           2
overruled the evidentiary objections in question and that there was sufficient evidence

to support the marijuana conviction.




                                          3
