SECOND DIVISION BARNES, P. J., ADAMS and MCFADDEN, 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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
July 11, 2012
In the Court of Appeals of Georgia A12A0200. AMUSEMENT SALES, INC. v. STATE OF GEORGIA.
BARNES, Presiding Judge.
In this civil in rem forfeiture action arising out of allegations of illegal
commercial gambling at a convenience store, the jury found in favor of the State of
Georgia, resulting in the forfeiture of eight electronic game machines and a portion
of the money found in those machines to the State. The trial court entered judgment
on the jury verdict, and Amusement Sales, Inc., the owner of the machines, now
appeals. In several enumerations of error, Amusement Sales contends that it was
entitled to judgment as a matter of law because the State failed to demonstrate that
illegal commercial gambling had occurred, and because it had no actual or
constructive knowledge of the alleged gambling. Amusement Sales further contends that the trial court erred in denying its motion to disqualify the special assistant
district attorneys (“SADAs”) appointed to prosecute the action on a contingency fee
basis. Lastly, Amusement Sales contends that the trial court erred in its charge to the
jury on the “innocent party” defense.
As discussed below, we reject Amusement Sales’s contention that it was
entitled to judgment as a matter of law on the State’s forfeiture claim. However, we
conclude that contingency fee arrangements for SADAs appointed to represent the
State in civil forfeiture actions violate Georgia public policy, given that those types
of arrangements cause the SADAs to have a personal financial stake in the outcome
of the proceedings. Consequently, we agree with Amusement Sales that its motion to
disqualify should have been granted, and, as a result, we reverse the judgment and
remand the case for a new trial. In the interest of judicial economy, we also address
the trial court’s jury charge on the “innocent party” defense and conclude that a
different charge should be given on retrial.
The pertinent factual and procedural history is as follows. Pursuant to
Georgia’s Racketeer Influenced and Corrupt Organizations Act (the “RICO Act”),
OCGA § 16-14-1 et seq., the State of Georgia filed a complaint in the Superior Court
of Emanuel County, alleging that a local convenience store known as KT’s Place had
2 made illegal cash payouts to customers who played electronic game machines located
on the premises. The State alleged that the machines were gambling devices, that the
store was being operated as a gambling place, and that the felony crime of
commercial gambling had repeatedly occurred on the premises in violation of OCGA
§ 16-12-22. The State further alleged that the criminal acts of commercial gambling
constituted a pattern of racketeering activity under OCGA § 16-14-3 (8) (A) and (9)
(A) (xvii). Based upon these allegations in the complaint, the State sought in rem
forfeiture of eight electronic game machines and money seized from those machines
by law enforcement officials on the ground that the property was “used or intended
for use in the course of, derived from, or realized through the foregoing pattern of
racketeering activity.”1 OCGA § 16-14-7 (a).
The complaint was filed on behalf of the State by Andrew J. Ekonomou and
Michael G. Lambros, whom the District Attorney for the Middle Judicial Circuit of
Georgia had appointed as SADAs to pursue the State’s forfeiture claims against a
number of convenience stores. The SADAs were in private practice and entered into
1 The State also sought forfeiture against two defendants (the convenience store and its owner) in personam, but those claims were dismissed after the two defendants reached a settlement with the State.
3 a contingency fee arrangement with the State to prosecute and recover a percentage
of any forfeited proceeds.
Amusement Sales answered the complaint and made a claim for the property
seized from the convenience store. Amusement Sales leased the electronic game
machines to the store and claimed ownership of the machines and the money seized
from them. According to Amusement Sales, the machines were bona fide coin-
operated amusement machines under OCGA §§ 16-12-35 (d) and 48-17-1 (2) rather
than gambling devices, and it was an innocent party that had no actual or constructive
knowledge of illegal cash payouts made to store customers. Consequently,
Amusement Sales asserted that the machines and money were not subject to forfeiture
and should be returned to it by the State.
Amusement Sales also filed a motion to disqualify the SADAs from
prosecuting the case, contending that their contingency fee arrangement created an
impermissible conflict of interest and that Emanuel County had never properly
approved of their appointment or compensation. The trial court denied the motion,
and the case proceeded to a jury trial, with SADA Lambros serving as lead attorney
for the State.
4 Piyush Patel, the owner and operator of the convenience store, testified at trial
as a State’s witness. He conceded that he knew that customers playing the eight
electronic game machines inside his store were supposed to be rewarded exclusively
with non-cash gift merchandise when they won a game. Patel admitted, however, that
he instead rewarded winning customers with illegal cash payouts on a daily basis for
at least two years prior to the seizure of the machines by law enforcement. According
to Patel, the highest single cash payout he made to a customer was $500. He further
testified that he purchased gift merchandise from Amusement Sales for use in his
store only one time during the years that the machines were located there.
Robert Jue, an employee of Amusement Sales, described for the jury how the
electronic game machines inside the convenience store were played. Jue testified that
the machines would show combinations of “fruit or numbers” on wheels spinning on
the screen, and a player would insert cash into the machine to play and punch a button
to stop the wheels. The player would win or lose based on the combination of
symbols appearing on the screen once the wheels stopped. According to Jue, a player
would just punch the button on the machine, “and whatever comes up[,] comes up.”
Jue was in a position to know how the machines were played because he
traveled to the convenience store every other week to collect 30 percent of the net
5 profits from the machines, the amount owed to Amusement Sales under its
arrangement with the store. To determine the amount of net profits owed to
Amusement Sales, Jue would print out an “audit ticket” from each of the machines
and “add up the net profit” shown on the tickets. Although Jue claimed that he was
unaware that Patel allowed customers to redeem their winnings for cash rather than
gift merchandise, he conceded that he ignored all information on the audit tickets
pertaining to the issue of winnings. Jue admitted that he did not “bother” with
reviewing that type of information because his “job [was] just to collect 30 percent
for the company on net profit.”
The owner of Amusement Sales, Rudolph Bairas, also testified. He testified
that the eight electronic game machines in the convenience store netted a profit of
$331,658 in cash over a thirteen-month period. The net profit was divided between
Amusement Sales, which received 30 percent, and the store, which received 70
percent. Bairas denied having any knowledge that cash payouts were being made to
customers who played the machines at the store. But, he admitted that audit tickets
pertaining to the machines had been thrown away because he did not “have any use
for [them],” and that Amusement Sales had routinely “zeroed out” the machines and
6 had changed the internal operating boards on them “quite often,” resulting in the loss
of the gaming history otherwise stored on the machines.
At the close of the State’s case-in-chief and again at the close of trial,
Amusement Sales moved for a directed verdict, and the trial court denied the motions.
After hearing all of the testimony, the jury returned a verdict in favor of the State. The
trial court thereafter entered judgment on the verdict reflecting that the machines and
money contained in them had been forfeited to the State. Amusement Sales now
appeals.2
1. Amusement Sales contends that it was entitled to judgment as a matter of law
because the State failed to prove that the crime of commercial gambling occurred at
the convenience store, and thus failed to prove the predicate acts necessary for
establishing a RICO violation. Amusement Sales further contends that it was an
innocent party as a matter of law because it was without actual or constructive
knowledge of any commercial gambling occurring at the store. Accordingly,
2 Amusement Sales filed its notice of appeal from the verdict and judgment on October 26, 2010, but the trial court did not actually enter judgment on the verdict until September 12, 2011. Although Amusement Sales’s notice of appeal was premature, “[a] prematurely filed notice of appeal is treated as effective upon the filing of the order or judgment appealed.” (Citation and punctuation omitted.) Mitchell v. Cancer CarePoint, 299 Ga. App. 881, 882, n. 1 (683 SE2d 923) (2009). See Gillen v. Bostick, 234 Ga. 308, 310-311 (1) (215 SE2d 676) (1975).
7 Amusement Sales contends that the trial court erred in denying its motions for
directed verdict.
Where a jury returns a verdict and it has the approval of the trial judge, the same must be affirmed on appeal if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence. The appellate court must construe the evidence with every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict. As long as there is some evidence to support the verdict, the denial of defendant’s motion for directed verdict . . . will not be disturbed.
(Citations and punctuation omitted.) Tecumseh Products Co. v. Rigdon, 250 Ga. App.
739 (552 SE2d 910) (2001).
Under Georgia’s RICO Act, “[a]ll property of every kind used or intended for
use in the course of, derived from, or realized through a pattern of racketeering
activity is subject to forfeiture to the [S]tate.” OCGA § 16-14-7 (a). A “pattern of
racketeering activity” means engaging in at least two predicate acts of racketeering
activity. See OCGA § 16-14-3 (8) (A); Aon Risk Svcs., Inc. of Ga. v. Commercial &
Military Sys. Co., 270 Ga. App. 510, 516 (5) (b) (607 SE2d 157) (2004).
8 Criminal acts of commercial gambling can serve as the predicate acts forming
a pattern of racketeering activity. See OCGA § 16-14-3 (9) (A) (xvii). “A person
commits the offense of commercial gambling when he intentionally . . . [o]perates or
participates in the earnings of a gambling place.” (Emphasis supplied.) OCGA § 16-
12-22 (a) (1). “Gambling place” is defined as “any real estate, building, room, tent,
vehicle, boat, or other property whatsoever, one of the principal uses of which is . .
. the playing of gambling devices.” (Emphasis supplied.) OCGA § 16-12-20 (3).
(a) Amusement Sales maintains that the State failed to demonstrate that the
eight machines in the convenience store were “gambling devices,” and, therefore, was
unable to establish any predicate acts of commercial gambling. According to
Amusement Sales, the uncontroverted evidence showed that the machines instead
were “coin operated game[s] or device[s] designed and manufactured only for bona
fide amusement purposes.” OCGA § 16-12-35 (d) (1). See also OCGA § 48-17-1 (2).
The definition of “gambling device” includes:
(A) Any contrivance which for a consideration affords the player an opportunity to obtain money or other thing of value, the award of which is determined by chance even though accompanied by some skill, whether or not the prize is automatically paid by contrivance;
...
9 (C) Any matchup or lineup game machine or device, operated for any consideration, in which two or more numerals, symbols, letters, or icons align in a winning combination on one or more lines vertically, horizontally, diagonally, or otherwise, without assistance by the player. Use of skill stops shall not be considered assistance by the player . . . .
OCGA § 16-12-20 (2) (A), (C).
As previously discussed, Robert Jue, Amusement Sales’s employee with
personal knowledge regarding the eight machines in the convenience store, testified
that a player of the machines inserted cash into the machine to play, punched a button
to stop the wheels from spinning, and whatever combination of symbols happened to
appear on the game once the wheels stopped spinning would determine whether the
player would win or lose. In other words, a player would simply punch the button on
the machine, “and whatever comes up[,] comes up.” Jue’s testimony was sufficient
to authorize the jury to find that the eight machines fell within the definition of
“gambling devices.” See OCGA § 16-12-20 (2) (A), (C). See also OCGA § 24-4-8
(“The testimony of a single witness is generally sufficient to establish a fact.”).
Although Rudolph Bairas, owner of Amusement Sales, provided a different
description of how the machines were played, it was for the jury, not this Court, to
10 assess witness credibility and resolve conflicts in the evidence. See OCGA § 24-9-80;
Tecumseh Products Co., 250 Ga. App. at 739.
We likewise reject Amusement Sales’s argument that the uncontroverted
evidence showed that the eight machines were bona fide coin-operated amusement
machines rather than gambling devices. To qualify as a bona fide coin-operated
amusement machine, the machine must “involve[] some skill in its operation.” OCGA
§ 16-12-35 (d) (1). See also OCGA § 48-17-1 (2) (among other requirements, a “bona
fide coin[-]operated amusement machine” is one “whose operation depends in whole
or in part upon the skill of the player”). Based upon Jue’s description of the eight
machines and how they were played, the jury was entitled to find that the machines
did not involve “some skill” in how they were operated. See OCGA § 16-12-35 (a)
(defining “some skill”); Patel v. State, 289 Ga. 479, 485 (3) (713 SE2d 381) (2011)
(where evidence showed that “a player simply pressed a button to play the[]
machines,” the machines were not bona fide coin-operated amusement machines
because they did not involve “some skill” in their operation).
Nevertheless, Amusement Sales maintains that the eight machines were legal
per se because they were “Silver Bar” machines, and the Georgia Supreme Court
determined that machines that went by that same name were bona fide coin-operated
11 amusement machines rather than gaming devices in Ultra Telecom v. State of
Georgia, 288 Ga. 65, n. 1 (701 SE2d 144) (2010). Amusement Sales, however, makes
no effort to show that res judicata or collateral estoppel principles apply in this
context. Furthermore, there is nothing in the record reflecting that Amusement Sales
programmed the machines at issue here with the same specific game as the machines
in Ultra Telecom. Additionally, the Supreme Court in Ultra Telecom affirmed, under
the clearly erroneous standard, the trial court’s factual finding that the machines at
issue involved “some skill,” id. at 71 (3) (b), and, therefore, the appeal was in an
entirely different posture than the instant one, where the jury found that the machines
did not involve “some skill.”
For these reasons, the jury was entitled to find that the eight machines at the
convenience store were gambling devices rather than bona fide coin-operated
amusement machines. The trial court thus did not err in denying Amusement Sales’s
motion for a directed verdict on this ground.3
3 In a related enumeration of error, Amusement Sales asserts that the uncontroverted evidence showed that the criminal acts committed at the store did not constitute the felony crime of commercial gambling, but rather the misdemeanor offense of giving a cash reward to a customer playing a bona fide coin-operated amusement machine. See OCGA § 16-12-35 (g). Amusement Sales’s assertion is unpersuasive, given that there was evidence from which the jury could find that the eight machines at the store constituted gambling devices rather than bona fide coin-
12 (b) Amusement Sales also argues that it was entitled to a directed verdict
because there was no evidence that the playing of gambling devices was “one of the
principal uses” of the convenience store. Hence, Amusement Sales claims that the
store did not meet the definition of a “gambling place,” one of the required elements
for proving the crime of commercial gambling as alleged in the present litigation. See
OCGA §§ 16-12-20 (3); 16-12-22 (a) (1).
During the trial, Bairas testified that the eight electronic game machines in the
convenience store generated a net profit of $331,658 in cash in a thirteen-month
period, which translated into a net profit of approximately $6,378 in cash per week.
At the time of the seizure of the machines by law enforcement, the convenience store
had approximately $38,000 in cash on hand, which represented total cash sales from
all of the store’s operations for the previous week, reflecting that cash from gaming
activity made up a significant amount of the cash sales of the business in a given
week. Moreover, Patel, the owner of the store, testified that he made cash payouts to
customers playing the machines every day for two years. Based upon this combined
testimony, the jury was authorized to find that the playing of gambling devices was
one of the principle uses of the convenience store, and thus that the store met the
operated amusement machines.
13 definition of a “gambling place.” The trial court therefore committed no error in
denying Amusement Sales’s motion for a directed verdict on this issue.
(c) Amusement Sales further maintains that it was an innocent party without
actual or constructive knowledge that cash payouts were being made to customers at
the convenience store. Consequently, Amusement Sales contends that it did not
forfeit its interest in the machines and the money seized from them, and that the trial
court thus should have granted a directed verdict in its favor.
In the context of an in rem RICO forfeiture action, where the property itself is
the named defendant, the focus is on whether the property “was used or intended for
use in the course of, derived from, or realized through a pattern of racketeering
activity,” OCGA § 16-14-7 (a), and the State can pursue such an action “without
regard to the guilt or innocence of the property owner.” Cisco v. State, 285 Ga. 656,
661 (1) (680 SE2d 831) (2009). Yet, the RICO Act provides that “[t]he interest of an
innocent party in the property shall not be subject to forfeiture,” and it defines such
a party as “one who did not have actual or constructive knowledge that the property
was subject to forfeiture.” OCGA § 16-14-7 (j). While the Act does not define
“constructive knowledge,” that term is commonly understood to refer to “[k]nowledge
14 that one using reasonable care or diligence should have, and therefore that is
attributed by law to [that] person.” Black’s Law Dictionary, 9th Edition (2009).
OCGA § 16-14-7 (a) and (j), when construed together, create a burden-shifting
framework for in rem RICO forfeiture actions. Specifically, once the State shows, by
a preponderance of the evidence, that the property “was used or intended for use in
the course of, derived from, or realized through a pattern of racketeering activity”
under OCGA § 16-14-7 (a), the burden then shifts to the property owner to show that
he “did not have actual or constructive knowledge that the property was subject to
forfeiture” under OCGA § 16-14-7 (j). Cf. Walker v. State, 281 Ga. App. 526, 529 (1)
(b) (636 SE2d 705) (2006). See Cisco, 285 Ga. at 661 (1) (citing Walker with
approval when discussing in rem RICO forfeiture proceedings).
Applying this framework to this case, we conclude that even if Amusement
Sales had no actual knowledge of the commercial gambling occurring at the
convenience store, the jury was entitled to reject Amusement Sales’s contention that
it had no constructive knowledge of that activity. There was evidence that despite the
fact that the eight game machines in the convenience store generated a net profit of
$331,658 in cash in a thirteen month period, the store purchased gift merchandise
from Amusement Sales for use only one time during the years that the machines were
15 located there. Given the amount of profit generated from the machines without any
concomitant purchase of gift merchandise, the jury was authorized to find that
Amusement Sales should have known that the store was rewarding winning
customers with cash rather than gift merchandise.
The jury’s finding of constructive knowledge was further supported by Jue’s
testimony about his failure to review the audit tickets from the machines for
information about winnings, as well as Bairas’s testimony that the audit tickets were
thrown away on a regular basis, that the machines were routinely “zeroed out,” and
that the operating boards on the machines were often replaced, preventing analysis
of the gaming history otherwise stored on the machines. Given this evidence, the jury
was entitled to reject the “innocent party” defense raised by Amusement Sales, and
a directed verdict on this issue would not have been appropriate.
2. Apart from its claims regarding the denial of its motions for directed verdict,
Amusement Sales argues that the trial court erred in denying its motion to disqualify
the SADAs from prosecuting the case. “There are two generally recognized grounds
for disqualification of a prosecuting attorney. The first such ground is based on a
conflict of interest, and the second ground has been described as ‘forensic
misconduct.’” (Citation omitted.) Williams v. State, 258 Ga. 305, 314 (2) (B) (369
16 SE2d 232) (1988). In reviewing a trial court’s ruling on a motion to disqualify a
prosecutor, we apply an abuse of discretion standard. Head v. State, 253 Ga. App.
757, 758 (2) (560 SE2d 536) (2002).
“A conflict of interest . . . has been held to arise where the prosecutor has
acquired a personal interest or stake in the defendant’s conviction.” Williams, 258 Ga.
at 314 (2) (B). If the assigned prosecutor has acquired a personal interest or stake in
the conviction, the trial court abuses its discretion in denying a motion to disqualify
him, and the defendant is entitled to a new trial, even without a showing of prejudice.
See Whitworth v. State, 275 Ga. App. 790, 796 (1) (d) (622 SE2d 21) (2005) (physical
precedent only). See also Young v. United States, 481 U.S. 787, 809-814 (III) (B)
(107 SC 2124, 95 LE2d 740) (1987) (plurality opinion as to Division (III) (B)).
It is true that the present case involves forfeiture of property rather than a
criminal prosecution. Nonetheless, “[f]orfeiture is a quasi-criminal proceeding that
permanently extinguishes a property owner’s rights to certain property,” State v.
Williams, 278 Ga. 447, 449 (603 SE2d 278) (2004), and “forfeiture of property is
disfavored.” General Motors Acceptance Corp. v. State of Ga., 279 Ga. 328, 331 (613
SE2d 641) (2005). Hence, we conclude that, as in a criminal prosecution, no showing
of prejudice should be required if the prosecutor assigned to a forfeiture proceeding
17 has acquired a personal interest or stake in the outcome, and the trial court
erroneously denies a motion for disqualification. Cf. Pitts v. State of Ga., 207 Ga.
App. 606, 607 (1) (428 SE2d 650) (1993) (Fourth Amendment exclusionary rule
applicable in criminal cases also should be applied in forfeiture proceedings because
of their quasi-criminal nature). That is the situation here, given that the SADAs who
prosecuted this case entered into a contingency fee arrangement with the State to
prosecute and recover a percentage of any forfeited proceeds.
In the recent case of Greater Georgia Amusements, LLC v. State of Georgia,
__ Ga. App. __ (2) (Case No A12A0692, decided on May 25, 2012) (physical
precedent only), this Court held that contingency fee arrangements for SADAs
appointed to represent the State in civil forfeiture actions violate Georgia public
policy because they cause an appointed prosecuting attorney to have a personal
financial stake in the outcome of the proceedings.4 As a result, this Court held that the
trial court erred in failing to disqualify the SADA appointed under such an
4 We also note that the General Assembly recently passed Senate Bill 181, which was signed into law by the Governor on May 2, 2012. The bill adds a new code section, OCGA § 16-1-12, which prohibits an SADA appointed in a forfeiture action from being compensated on a contingency basis by a percentage of the assets that arise or are realized from the forfeiture action. See Greater Ga. Amusements, LLC, __ Ga. App. __ (2), n. 1.
18 arrangement from prosecuting the civil forfeiture case. See id. Although Greater
Georgia Amusements, LLC is not binding precedent, see Court of Appeals Rule 33
(a), we nevertheless find its reasoning persuasive. See Pechin v. Lowder, 290 Ga.
App. 203, 205 (659 SE2d 430) (2008) (“[P]hysical precedent may be cited as
persuasive authority, just as foreign case law or learned treatises may be persuasive.”)
(citation and punctuation omitted).
It follows that the trial court abused its discretion in denying Amusement
Sales’s motion for disqualification. And because disqualification was warranted in
light of the SADAs having a personal financial stake in the outcome, Amusement
Sales need not show prejudice arising from the denial of its motion. See Young, 481
U.S. at 809-814 (III) (B); Whitworth, 275 Ga. App. at 796 (1) (d). We therefore
reverse the trial court’s judgment entered on the verdict and remand for a new trial.
See Davenport v. State, 157 Ga. App. 704, 706 (1) (278 SE2d 440) (1981).5
5 As an alternative ground for disqualification, Amusement Sales argues that the district attorney lacked authority to appoint the SADAs in this case because the governing authority of Emanuel County never properly approved of their appointment as required by OCGA § 15-18-20. The same argument was raised by the defendants and rejected by this Court in Greater Georgia Amusements, LLC, __ Ga. App. at __ (1). Again, we find this Court’s reasoning in Greater Georgia Amusements, LLC to be persuasive.
19 3. Amusement Sales claims that the trial court erred in its charge to the jury on
the “innocent party” defense. In the first sentence of its jury charge addressing that
defense, the trial court instructed that “[a]ny person claiming an innocent interest in
any property from which the State has presented a case for forfeiture must prove he
had neither actual nor constructive knowledge that the property was subject to
forfeiture.” However, in the second sentence of its charge, the trial court used
language derived from the drug forfeiture statute, OCGA § 16-13-49 (e) (1) (A), and
instructed: “An owner of property subject to forfeiture is innocent where that party
is not legally accountable for the conduct giving rise for its forfeiture, did not consent
to it, and did not know and could not reasonably have known of the conduct, or that
it was likely to occur.”6 Amusement Sales contends that the trial court erred by
including in its charge the language from the drug forfeiture statute defining an
innocent party as one “not legally accountable for the conduct giving rise for its
6 OCGA § 16-13-49 (e) (1) (A) provides: (e)(1) A property interest shall not be subject to forfeiture under this Code section if the owner of such interest or interest holder establishes that the owner or interest holder: (A) Is not legally accountable for the conduct giving rise to its forfeiture, did not consent to it, and did not know and could not reasonably have known of the conduct or that it was likely to occur . . . .
20 forfeiture” and as one who “did not consent to it,” because that language went beyond
the RICO Act requirement that the innocent party be one “who did not have actual or
constructive knowledge that the property was subject to forfeiture.” OCGA § 16-14-7
(j).
It is well-settled that “a jury charge must be adjusted to the evidence, apt, and
a correct statement of the applicable law.” (Punctuation and footnote omitted.) Wood
v. B & S Enterprises, 314 Ga. App. 128, 130 (1) (723 SE2d 443) (2012). During the
retrial of this case, to avoid any potential for confusing or misleading the jury, the
trial court should not include in its charge on the “innocent party” defense the
language derived from the drug forfeiture statute. The trial court instead should
charge the jury using language derived form OCGA § 16-14-7 (j), the definition of
“constructive knowledge” set forth in Division 1 (c) of this opinion, and the
description of the applicable burden-shifting framework set forth in that same
division.7
Judgment reversed and case remanded for new trial. Adams and McFadden,
JJ., concur.
7 Because we concluded in Division 2 that a new trial is necessary in this case, we need not determine whether the trial court’s inclusion of language from the drug forfeiture statute harmed Amusement Sales.