Love v. State

637 S.E.2d 81, 281 Ga. App. 664, 2006 Fulton County D. Rep. 3064, 2006 Ga. App. LEXIS 1199

• Court: Court of Appeals of Georgia
• Decided: September 26, 2006
• Docket: A06A1463
• Status: Published

Opinions

Phipps, Judge.

After a bench trial, Evelyn Love was ordered to forfeit her 1993 Honda to the state, which had shown that her husband had sold marijuana to undercover officers from the car. On appeal, Love argues that the trial court showed impermissible bias in favor of the state, that it imposed a higher burden of proof on her than the law of civil forfeiture requires, and that the evidence was sufficient to show that she was an innocent owner. We find that Love carried her burden of showing that she could not reasonably have known of her husband’s use of her car for his illegal activity, and we therefore reverse.

The record shows that Love and her husband Randy had been married for about a year when he was arrested in 2004 for selling marijuana to undercover officers from Love’s 1993 Honda automobile. Love had received the car in a 1997 divorce settlement from her previous marriage. In that same year, Randy Love had been arrested on one occasion for marijuana possession and convicted on another for possession with intent to distribute. At the time of his 2004 arrest, Randy Love told the police that he “sold drugs for a living.” At the hearing on the state’s action in rem against the car, Love testified that although she had known Randy since 1992, she was “[not] in the picture” in 1997, that she and Randy did not share money, and that he did not contribute to payment on the household’s bills. Love also testified that she often got to her job, which she had held since 1993, by means of other relatives’ cars; that Randy was a student and had told her that he worked at a car dealership; that she had no knowledge that he was involved in any kind of drug activity; that she had not seen any sign of drugs, extra cash, or excessive spending; and that she was at work on the night he was arrested.

On cross-examination, the arresting officer conceded that other than Love’s husband’s statement that he “sold drugs for a living,” he had no factual basis for his assertion that Love herself knew or should have known that her husband was selling drugs from her car. The officer also admitted that he had never seen Love and her husband in or around the car at the same time during the course of his investigation; in fact, he had never seen them together at all.

1. The crux of this appeal is Love’s contention that she has proven by a preponderance of the evidence that she is an innocent owner. We agree.

“In a condemnation action, once the State has presented a prima facie case for forfeiture, the claimant has the burden of establishing by a preponderance of the evidence that [she] is an innocent owner.”¹ As Love concedes, the state’s evidence showed that the Honda was used to transport contraband, and thus established a prima facie case for forfeiture. The burden was then on Love to establish her entitlement to a statutory exception under OCGA § 16-13-49 (e).

The relevant provisions of that statute provide that a property interest will not be subject to forfeiture if the owner or interest holder establishes by a preponderance of the evidence that it 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.”²

“On appeal, the trial court’s findings of fact will not be reversed unless clearly erroneous, and due regard must be given to the trial court’s opportunity to judge the credibility of the witnesses who appeared before it.”³

Immediately before issuing its ruling, the trial court stated that it did not believe Love’s testimony that she did not know about her husband’s 1997 drug convictions. Even assuming, as we must, that the trial court was correct in disbelieving this testimony, Love’s knowledge of her husband’s prior convictions cannot as a matter of law be held to put her on notice that he would commit any future crime, let alone the specific one of selling drugs out of her car. To hold that Love was put on such notice by her husband’s previous illegal activity would be to make just the kind of impermissible inference recently struck down by the Supreme Court of Georgia when it held that a lienholder’s knowledge of a car owner’s involvement in the drug trade did not mean that it should have known that the owner would use the particular car on which it held the lien for that illegal purpose.⁴ Nor do any of the cases cited by the dissent contradict our result here, since each of those claimants knew that the same relative whose use of the vehicle gave rise to the forfeiture had previously sold drugs from a vehicle owned by that claimant.⁵

The trial court’s disbelief of one portion of Love’s testimony does not negate every other part of that testimony tending to establish her lack of actual or constructive knowledge.⁶ To hold that Love “acquired knowledge that [her husband] would use the vehicle in a manner giving rise to its forfeiture” would misconstrue the statute and undermine the rights of innocent spouses.⁷ We cannot interpret OCGA § 16-13-49 (e) in this way when the “forfeiture of property is disfavored,” when one of the statute’s express purposes is “the protection of the property interests of innocent owners,” and when the statutory scheme of which it is a part must be “strictly construed and limited.”⁸

We therefore conclude that the trial court clearly erred when it held that Love had not carried her burden of proof under OCGA § 16-13-49 (e) (1) (A) and awarded her car to the state.

2. In light of our holding in Division 1, we need not reach Love’s remaining enumerations.

Judgment reversed.

Ruffin, C. J., and Johnson, R J., concur. Barnes and Bernes, JJ., concur in the judgment only. Andrews, P. J., and Smith, P. J., dissent.

1 Gen. Motors Acceptance Corp. v. State of Ga., 279 Ga. 328, 330 (613 SE2d 641) (2005) (citation and punctuation omitted), citing OCGA § 16-13-49 (o) (5) and (p).

2 Id., quoting OCGA § 16-13-49 (e) (1) (A).

3 Mitchell v. State of Ga., 236 Ga. App. 335, 337 (2) (511 SE2d 880) (1999).

4 Gen. Motors Acceptance Corp., supra, 279 Ga. at 331.

5 See Little v. State of Ga., 279 Ga. App. 329 (630 SE2d 903) (2006) (claimant knew that his son had also been using the family truck when he was arrested two years before for possession of marijuana with intent to distribute); State of Ga. v. Tucker, 242 Ga. App. 3, 9-10 (3) (528 SE2d 523) (2000) (claimant who managed car dealership knew of previous forfeiture action arising from his son’s use of a dealership car to transport drugs); James v. State of Ga., 240 Ga. App. 288, 289 (523 SE2d 354) (1999) (police officer had warned claimant that her son was selling drugs out of her car).

6 See Tate v. State, 264 Ga. 53, 55 (2) (440 SE2d 646) (1994) (appellate court must pay close attention to the “actual and complete findings of fact by the trial court judge,” and especially to the distinction between findings of fact and conclusions of law). We also note that the case on which the dissent relies most cites Tate but ignores this mandate. See Little, supra, 279 Ga. App. at 330-331.

7 Gen Motors Acceptance Corp., supra, 279 Ga. at 331 (citations omitted).

8 Id. (citations and punctuation omitted).