Rabern v. State

473 S.E.2d 547, 221 Ga. App. 874, 96 Fulton County D. Rep. 2739, 1996 Ga. App. LEXIS 738

• Court: Court of Appeals of Georgia
• Decided: June 26, 1996
• Docket: A96A0135
• Status: Published

Opinions

Ruffin, Judge.

The State filed a complaint instituting in rem forfeiture proceedings pursuant to OCGA § 16-13-49 against approximately 5.2 acres of real property owned by John Wesley Rabern. The proceedings were instituted after an April 1994 search of the property produced 450 small marijuana plants, weighing a total of 68.3 grams, a grow light, fertilizer bags, wheelbarrows, shovels, and various other gardening tools.

After a bench trial, the trial court determined that Rabern’s property was being used to manufacture and store marijuana for distribution in violation of the Georgia Controlled Substances Act. The trial court ordered the property forfeited to the county. Rabern appeals, alleging (a) OCGA § 16-13-49 is unconstitutional, (b) the trial court erred in admitting hearsay testimony, (c) the forfeiture is excessive in violation of the Eighth Amendment, and (d) the evidence failed to support the court’s judgment of forfeiture. For reasons which follow, we vacate the trial court’s decision and remand with directions.

1. In his first enumeration of error, Rabern contends the trial court erred in ruling that OCGA § 16-13-49 is constitutional. The trial court correctly found that this forfeiture statute is constitutional. The constitutionality of OCGA § 16-13-49 and its predecessor, Ga. Code Ann. § 79A-828, has been upheld by Georgia’s Supreme Court. See Lang v. State, 168 Ga. App. 693, 695 (3) (310 SE2d 276) (1983); Tant v. State, 247 Ga. 264 (1) (275 SE2d 312) (1981). In addition, the constitutionality of the specific section denying a right to trial by iury was upheld in Swails v. State of Ga., 263 Ga. 276 (431 SE2d 101) (1993).

2. Rabern’s second enumeration of error asserts the trial court erred in allowing hearsay testimony into evidence. Under OCGA § 16-13-49 (s) (1), “the trial court may consider any evidence that would be admissible in determining probable cause at a preliminary hearing.” Carr v. State of Ga., 212 Ga. App. 36, 38 (1) (441 SE2d 85) (1994). The evidence complained of includes information from an informant which eventually led to obtaining the search warrant and the official report from the State Crime Laboratory.

We find the hearsay statements regarding information obtained from the informant were properly admitted in determining probable cause and explaining the conduct of the officers. “The testimony that a witness received certain information upon which he acted is admissible not as independent evidence to establish the truth of such information, but as an inducement and explanation by the witness that, acting on such information, he discovered other facts connecting the accused with the crime in question. . . . [Cit.]” (Punctutation omitted.) Shellnut v. State, 215 Ga. App. 58, 59 (2) (449 SE2d 652) (1994); Lloyd v. State, 139 Ga. App. 625, 626 (2) (229 SE2d 106) (1976).

Regarding the official report of the State Crime Laboratory, we find that any error which may have occurred in admitting this report was harmless in light of the officers’ testimony regarding the marijuana at issue. Both the Georgia Bureau of Investigation officer specifically assigned to the Governor’s Task Force on Marijuana Eradication and the Henry County Police Department officer specifically assigned to the narcotics unit testified they observed 450 marijuana plants growing in small containers. “[I]dentification of a material or substance may be made by other than expert testimony. [Cit.]” Burroughs v. State, 190 Ga. App. 467, 470 (1) (379 SE2d 175) (1989). Furthermore, except for an initial objection regarding foundation, Rabern did not object to this testimony and does not claim that the substance was anything other than marijuana.

3. In two enumerations, Rabern asserts that his offense did not authorize forfeiture pursuant to OCGA § 16-13-49 (e), which provides: “[a] property interest shall not be subject to forfeiture under this Code section for a violation involving . . . four ounces of marijuana or less unless said property was used to facilitate a transaction in or a purchase of or sale of. . . marijuana.” (Emphasis supplied.) While OCGA § 16-13-49 (d) (2) allows forfeiture of “[a]ll property which is, directly or indirectly, used or intended for use in any manner to facilitate a violation of this article or any proceeds derived or realized therefrom,” OCGA § 16-13-49 (e) provides an exception to this general rule for a violation involving four ounces or less of marijuana. It is not disputed that less than four ounces of marijuana was found on Rabern’s property. While this amount considered by itself would not authorize a forfeiture, the trial court ordered the forfeiture based on facts other than the amount, determining the property was used to manufacture and store marijuana presumably for sale.

In interpreting OCGA § 16-13-49 (e), several rules of statutory construction are applicable. “Because it is a special statutory proceeding, we are required to strictly construe the forfeiture statute. In interpreting the statute, we look to the intent of the legislature and construe the statute to effect that intent. We are also required to give words, except those of art, their ordinary significance.” (Citations omitted.) State v. Henderson, 263 Ga. 508, 509 (436 SE2d 209) (1993). Following these rules, we find that Carr, supra, the case relied on by the appellant, interpreted this statute too narrowly. While we agree with the Court’s ultimate conclusion in Carr based on the facts presented in that case, we specifically hold that OCGA § 16-13-49 (e) does not require evidence of an actual sale or purchase of marijuana, and we overrule Carr to the extent that Carr required an actual sale of marijuana to support forfeiture.

“OCGA § 16-13-49 sets out and balances two legislative intentions: (1) the prompt disposition of property subject to forfeiture under the statute; and (2) the protection of property interests of innocent owners, as defined by the statute.” (Citations and punctuation omitted.) Alford v. State, 208 Ga. App. 595, 596 (1) (431 SE2d 393) (1993). As rewritten in 1991, the legislature included the following subsection: “This Code section must be liberally construed to effectuate its remedial purposes.” OCGA § 16-13-49 (z).

In addition to those facts already discussed, the evidence presented at the hearing in support of the forfeiture included the following. An informant notified police that a marijuana cloning operation existed at the property. According to the informant, who had assisted in the cloning operation, 1,000 marijuana plants had been cloned and were growing at this location. Pursuant to a search warrant, the 450 marijuana plants were discovered in a room attached to the lower level of the house on the property. This room had what appeared to be a window which had been removed to allow access to and from the remainder of the house. Electrical cords ran from the remainder of the house to this room to supply it with electricity. The officers further testified that 5.2 acres of wooded land could have provided sufficient area for the plants after they had outgrown the room. There were a number of trails in the wooded area behind the residence.

In Carr, supra at 38, this Court concluded that OCGA § 16-13-49 (e) “provides for forfeiture only where there is actual use of the property in a transaction, sale or purchase, where small amounts of drugs are involved.” Accordingly, in Carr we limited forfeiture under OCGA § 16-13-49 (e) to instances where the evidence showed an “actual sale” of marijuana. The Court found insufficient evidence to support the forfeiture since there was no evidence of an actual sale or a large quantity of drugs ready-packaged for sale. Id. In Carr, the officers found only seven grams of marijuana on a bedside table, several smoked marijuana cigarette butts in various locations around the house, two plastic bags that tested positive for cocaine residue in the basement, fifty to one hundred small plastic bags, a packet of cigarette papers, large amounts of cash in several locations, and a gun which was located in a truck. We agree that this evidence was insufficient to support forfeiture. However, we now conclude that our prior analysis requiring an actual sale to support forfeiture under OCGA § 16-13-49 (e) was improper.

Carr was correctly decided not because there was no evidence of an actual sale, but because the evidence did not support a conclusion that the property owners were using the marijuana other than for personal use. There was no large quantity of marijuana and nothing. to tie the plastic bags, gun or money to facilitating a transaction, purchase or sale of marijuana. In the present case, however, the sheer number of marijuana plants, coupled with the other evidence, demonstrate that the property was being used to facilitate a marijuana sale. Liberally construing OCGA § 16-13-49 (e) to effectuate its remedial purposes, we conclude that an actual sale is not necessary to support forfeiture when the amount of marijuana equals four ounces or less. While the State does need to show a strong nexus between the property and the alleged violation if the amount of marijuana seized totals four ounces or less, the State can show this nexus in cases where an actual sale does not occur. In Carr, the State failed to show the property was being used to facilitate a transaction, purchase or sale of marijuana. In the present case, the State showed the property was being used to grow a large amount of marijuana for sale.

“In a bench trial the court sits as trier of fact and its findings will not be set aside unless clearly erroneous.” (Citations and punctuation omitted.) Lanier v. State of Ga., 212 Ga. App. 51, 52 (441 SE2d 87) (1994). In the present case, the trial court reasonably concluded the State showed by a preponderance of the evidence that Rabern’s property was subject to forfeiture. Resolution of the use or intended use of the property for facilitating a transaction or a purchase of or a sale of marijuana was the duty of the trial court. Id. at 52. “This is true even where, as in the case sub judice, such resolution is based upon circumstantial evidence since reasonable inferences were raised.” (Citations and punctuation omitted.) Id.

“Although we construe this statute strictly, our holding in this case also comports with the remedial purposes of the statute.” State v. Henderson, supra. Accordingly, the trial court did not err by ordering that the property be forfeited to the State. However, the question remains as to the proper extent of forfeiture.

4. Rabern contends the trial court erred in forfeiting his home and entire tract of land to the State in that this was an excessive fine in violation of the Eighth Amendment. Rabern is correct that the Eighth Amendment’s prohibition against excessive fines applies to civil in rem forfeitures under OCGA § 16-13-49. Austin v. United States, 509 U. S. 602 (113 SC 2801, 125 LE2d 488) (1993). In Thorp v. State of Ga., 264 Ga. 712 (450 SE2d 416) (1994), the Georgia Supreme Court fashioned a three-factor analysis for determining whether a forfeiture is constitutionally excessive. The three factors to be evaluated are: (1) consideration of the inherent gravity of the offense compared with the harshness of the penalty; (2) whether the property was close enough to render it “guilty”; and (3) whether the criminal activity involving the property was extensive in terms of time and/or spatial use. Id. at 717.

“Proper application of these factors requires the trial court to make certain mixed findings of law and fact. Normally a trial court’s findings of fact as to these matters must be accepted by an appellate court unless clearly erroneous. [Cit.]” Thorp v. State of Ga., 217 Ga. App. 275, 276 (2) (457 SE2d 234) (1995). In this case, the trial court has not had the opportunity to render its factual determinations and apply the Supreme Court’s Thorp analysis.

Therefore, as in Thorp, 217 Ga. App. 275, and Evans v. State of Ga., 217 Ga. App. 646 (458 SE2d 859) (1995), we must remand this case for further proceedings in the trial court. The trial court is directed to hold a post-trial hearing for the determination of the Eighth Amendment issue presented here. The trial court is authorized to conduct such additional factfinding as deemed necessary in the interests of the discovery of the truth (OCGA § 24-1-2) and to protect its judgment (Art. VI, Sec. I, Par. IV, Ga. Const, of 1983). Either party shall be entitled to appeal the trial court’s new order within 30 days of its entry. See id.

Judgment vacated and case remanded with direction.

McMurray, P. J, Birdsong, P. J., Pope, P. J., Andrews, Johnson and Blackburn, JJ., concur. Beasley, C. J., concurs specially. Smith, J., dissents.