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Boatner v. State

The evidence did not support a finding that the defendant probationer possessed the rifle found leaning against the front porch of his trailer, as something more than mere spatial proximity must link the probationer to the prohibited item.

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We granted Russell Boatner’s application for discretionary review of the superior court’s order revoking his probation. The court found that Boatner violated two conditions of his probation and also found that he committed the new felony of possession of a firearm by a convicted felon. Because we conclude that the evidence was insufficient to support the finding as to one of the probation violations and also insufficient to support the new felony charge, we reverse in part and remand this case to the trial court. Viewed in the light most favorable to upholding the trial court’s findings, Marks v. State , 306 Ga. App. 824 703 SE2d 379 2010, the record shows that in 2003, Boatner pled guilty to one count of possession of marijuana with intent to distribute OCGA § 16-13-30, one count of possession of a firearm during the commission of a crime OCGA § 16-11-106, and one count of possession of a firearm by a convicted felon OCGA § 16-11-131. Boatner was sentenced to 15 years of probation. Among the general conditions of his probation, were the requirements that Boatner not violate any laws, not receive, possess or transport any firearms, and avoid “persons . . . of disreputable or harmful character.”

In 2010, Boatner’s probation officer stated that he was informed by someone in “Parole” that Boatner was associating with a wanted parolee. This person asked for help in finding Boatner, saying that Boatner had been seen driving around in a black truck with gold trim.

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