Trooier Glasper v. State ( 2022 )

FIRST DIVISION
BARNES, P. J.,
BROWN and HODGES, 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.
https://www.gaappeals.us/rules
June 29, 2022
In the Court of Appeals of Georgia
A22A0505. GLASPER v. THE STATE.
HODGES, Judge.
In this appeal from a probation revocation order, we consider whether a law
enforcement officer may testify to the content of a security video recording when
there is no showing that the recording is not available and where the video was not
entered into evidence. We hold that such testimony violates the best evidence rule,
see OCGA § 24-10-1002, and that the Superior Court of Hall County abused its
discretion in admitting an officer’s testimony during Trooier Glasper’s probation
revocation hearing. Therefore, we reverse the trial court’s order revoking Glasper’s
probation.
The record indicates that Glasper entered a negotiated plea of guilty to four
counts of entering an automobile with intent to commit theft (OCGA § 16-8-18) on
February 17, 2021, for which the trial court sentenced him to a term of 5 years with
the first 18 months to be served in confinement. As a general condition of his
probation, Glasper was forbidden from violating the criminal laws of any
governmental unit.
Approximately three months later, on the afternoon of May 24, 2021, a City of
Braselton police officer visited a Hall County Kroger store to investigate a report of
a runaway juvenile. During the officer’s visit, Glasper, who was wearing a dirty white
shirt and dark pants, approached the officer and asked him for assistance with a
disabled vehicle. The officer instructed Glasper to contact Hall County authorities for
assistance, completed his work on the runaway juvenile case, and left the store.
Later that afternoon, the victim visited the Kroger store. Upon arriving, he
parked his truck in the front of the store’s parking lot. However, when the victim
returned to the parking lot approximately 10 minutes later, he discovered that his
truck was missing and telephoned 911. While the victim was making the report, Hall
County Sheriff’s Office deputies found the stolen truck, which had crashed and had
been left abandoned in a ditch.
The Braselton officer returned to the Kroger store to investigate the theft of the
victim’s truck. After making contact with the victim, the officer went inside to review
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security video recordings. The officer testified that he was given access to view the
store’s video of the parking lot and that the video footage showed Glasper
approaching the victim’s truck, walking around it, entering the driver’s door, and
driving away from the scene. The officer further stated that he recognized Glasper in
the video based upon their prior encounter at the store, and that Glasper was wearing
the same clothing.
Glasper was found walking near the crash location. Officers arrested him and
charged him with felony theft by taking and misdemeanor hit and run. As a result, the
State filed a petition to revoke his probation, alleging that his theft of the victim’s
truck violated the conditions of his probation. Following an evidentiary hearing, the
trial court granted the State’s petition and revoked 3 years of Glasper’s probation.
Glasper then filed an application for discretionary appeal, arguing that the
officer’s testimony describing the contents of the surveillance video was inadmissible
under the best evidence rule. We granted Glasper’s application, and this appeal
follows.
In two related enumerations of error, Glasper contends that the trial court erred
in overruling his best evidence objection to the officer’s testimony and, consequently,
in revoking his probation. We agree.
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Georgia’s best evidence rule provides that, “[t]o prove the contents of a
writing, recording, or photograph, the original writing, recording, or photograph shall
be required.” (Emphasis supplied.) OCGA § 24-10-1002. However,
[t]he original shall not be required and other evidence of the contents of
a writing, recording, or photograph shall be admissible if:
(1) All originals are lost or have been destroyed, unless the proponent
lost or destroyed them in bad faith;
(2) No original can be obtained by any available judicial process or
procedure;
(3) At a time when an original was under the control of the party against
whom offered, that party was put on notice, by the pleadings or
otherwise, that the contents would be a subject of proof at the hearing,
and that party does not produce the original at the hearing; or
(4) The writing, recording, or photograph is not closely related to a
controlling issue.
OCGA § 24-10-1004. “We review the trial court’s ruling on the admission of
evidence for an abuse of discretion.” Garner v. State, 342 Ga. App. 824, 828 (3) (805
SE2d 464) (2017). “An abuse of discretion occurs where a ruling is unsupported by
any evidence of record or where that ruling misstates or misapplies the relevant law.”
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(Citation and punctuation omitted.) Owensby v. Williams, 355 Ga. App. 695, 696 (843
SE2d 899) (2020).
During Glasper’s probation revocation hearing, the Braselton officer testified
that, when he arrived at the Kroger store in response to the victim’s report of a stolen
vehicle, he met with a manager and reviewed security video. Glasper objected to the
officer’s testimony based upon the best evidence rule, and the trial court asked for a
response from the State. The officer stated that he viewed the security video at the
store and obtained a copy of the video on a disk, which he delivered to the police
department as evidence. However, the officer acknowledged that he did not bring the
disk to court and that he had not reviewed it since the recording had been made.
Glasper renewed his objection based upon the best evidence rule, but the trial court
overruled his objection.
As a general matter, we have already noted that “[t]o prove the contents of a
. . . recording, . . . the original . . . recording . . . shall be required.” OCGA § 24-10-
1002. Here, that did not occur. The Braselton officer testified that he obtained a copy
of the security video recording and entered it into evidence, but neither he nor the
State brought the recording to the probation revocation hearing. In addition, neither
offered an excuse for failing to do so. There was no indication that the video was lost,
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destroyed, or otherwise unavailable or inaccessible, and the State does not claim that
any of the exceptions in OCGA § 24-10-1004 applied. Certainly, the video was
closely related to the issue of Glasper’s probation revocation, as it formed the primary
evidence used against him during the revocation hearing.1 Nevertheless, over
Glasper’s objection, the trial court allowed the State to present the officer’s testimony
as to the contents of the security video without introducing the video itself into
evidence.
Under these circumstances, we conclude that the trial court abused its
discretion in admitting the officer’s testimony describing the video’s contents. See
Lumley v. State, 280 Ga. App. 82, 82-83 (633 SE2d 413) (2006). In a case decided
under former OCGA § 24-5-4, a trial court overruled a defendant’s best evidence
objection to the State’s attempt to introduce a copy of intoxilyzer test results. Id. at
82. This Court reversed, finding that “the State provided no evidence to explain the
absence of the original intoxilyzer printout.” Id. at 83. Moreover, we noted that “the
1
Without the evidence of the security video recording, the only evidence
presented by the State was that the Braselton officer saw Glasper at Kroger earlier in
the day and that Glasper was found walking near the crash site wearing the same
clothes he had been wearing earlier.
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prosecutor apparently made no effort — much less a diligent one — to ascertain the
original’s whereabouts.” Id.2
Likewise, the record in this case shows that neither the officer nor the State’s
representatives undertook any effort whatsoever to retrieve the video recording,
which the officer testified had been taken into evidence, or to account for its absence.
It necessarily follows that the officer’s testimony concerning the content of the
security video violated the best evidence rule and that the trial court abused its
discretion in admitting the testimony.3 See OCGA § 24-10-1002; Lumley, 280 Ga.
App. at 82-83; compare Jones v. State, 345 Ga. App. 14, 15-16 (1) (812 SE]2d 337)
(2018) (finding that trial court did not abuse its discretion by admitting handwritten
log notes where evidence revealed that, after extensive search, actual test results had
2
Although decided under former OCGA § 24-5-4, these principles from
Lumley remain relevant. See generally OCGA § 24-4-1004; Patch v. State, 337 Ga.
App. 233, 240 (2), n. 18 (786 SE2d 882) (2016) (“Georgia’s prior best evidence rule
. . . applied only to writings and would have been inapplicable to the . . . video
recordings at issue here.”).
3
The cases on which the State relies are inapposite. Unlike this case, video
recordings were admitted into evidence in Gilmore v. State, 312 Ga. 289 (862 SE2d
499) (2021), Allen v. State, 310 Ga. 411 (851 SE2d 541) (2020), and Goforth v. State,
360 Ga. App. 832, 837 (2) (861 SE2d 800) (2021), while in Glenn v. State, 302 Ga.
276 (806 SE2d 564) (2017), there is extensive discussion of a video and no indication
that it was not admitted into evidence. More importantly, none of these cases
considered best evidence objections.
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been lost); Hafeez v. State, 339 Ga. App. 467, 469 (2) (793 SE2d 632) (2016) (finding
that because surveillance video of the crime was admitted into evidence, still
photographs extracted from video did not violate best evidence rule); Patch v. State,
337 Ga. App. 233, 242-243 (2) (786 SE2d 882) (2016) (finding investigator’s
testimony that he recognized defendant from a video recording was admissible
because evidence demonstrated that the recording had been destroyed).
As a result, we further conclude that the trial court erred in revoking Glasper’s
probation.
A court may revoke probation based on new violations if the evidence
produced at the revocation hearing establishes by a preponderance of the
evidence the violation or violations alleged. And this Court will not
interfere with a revocation absent 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
Court will affirm.
(Citations and punctuation omitted; emphasis supplied). Brown v. State, 294 Ga. App.
1, 3 (2) (668 SE2d 490) (2008). Here, absent the officer’s testimony concerning his
review of the security video recording, the only evidence admitted against Glasper
was that the Braselton officer saw Glasper at Kroger earlier in the day and that he was
found walking in the vicinity of the crash site wearing the same clothes he had been
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wearing earlier. This falls well short of even the State’s lessened burden of proof in
a probation revocation. See id.; cf. Wright v. State, 355 Ga. App. 417, 419 (1) (844
SE2d 279) (2020) (“[W]hile the State’s burden of proof is lower in a probation
revocation case, a probationer’s mere presence in the area where contraband is found
will not justify a revocation based on possession of contraband, even under the more
relaxed preponderance of the evidence standard.”) (citation and punctuation omitted).
Accordingly, we reverse the trial court’s order revoking Glasper’s probation.
Judgment reversed. Barnes, P. J., and Brown, J., concur.
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