State of Georgia v. Hamm

Court of Appeals of Georgia

State of Georgia v. Hamm

387 S.E.2d 344, 193 Ga. App. 184, 1989 Ga. App. LEXIS 1422

CourtCourt of Appeals of Georgia

DecidedSeptember 25, 1989

DocketA89A0844

StatusPublished

Cited by5 cases

This text of 387 S.E.2d 344 (State of Georgia v. Hamm) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State of Georgia v. Hamm, 387 S.E.2d 344, 193 Ga. App. 184, 1989 Ga. App. LEXIS 1422 (Ga. Ct. App. 1989).

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Opinions

Carley, Chief Judge.

Pursuant to OCGA § 16-13-49 (a) (4), the State filed a condemnation proceeding against a vehicle belonging to appellee. At a bench trial, the following evidence was adduced: Appellee met with an undercover agent. The agent agreed to follow in his vehicle as appellee drove to an apartment complex. At the apartment complex, appellee offered to sell the agent cocaine. When the agent accepted the offer, appellee entered one of the apartments. He returned with the cocaine and the sale was consummated in the agent’s vehicle. There was no evidence that any cocaine or other controlled substance was ever in appellee’s vehicle or on his person while he was an occupant of his vehicle. On this evidence, appellee’s motion for directed verdict was granted. The State appeals from that ruling.

“In a non-jury case, it is procedurally incorrect to move for a directed verdict; and such a motion [as well as the grant thereof] will be construed as one for involuntary dismissal under Section 41 (b) of the Civil Practice Act. [Cit.] ” Kennery v. Mosteller, 133 Ga. App. 879, 880 (212 SE2d 447) (1975). OCGA § 16-13-49 (a) (4) provides: “The following are subject to forfeitures: ... All conveyances, including . . . vehicles . . . which are used, or intended for use, to transport, hold, conceal, or in any manner to facilitate the transportation, for the purpose of sale or receipt, of property described in paragraph (1) or (2) of this subsection. . . .” This “statute must be strictly construed.” Lang v. State, 168 Ga. App. 693, 695 (4) (310 SE2d 276) (1983). There is no evidence, direct or circumstantial, that any contraband was ever actually transported, held or concealed in appellee’s vehicle or was ever intended to be transported, held or concealed in that vehicle. Compare State of Ga. v. Belcher, 165 Ga. App. 139 (299 SE2d 57) (1983) (wherein there was circumstantial evidence that the vehicle had been or was intended to be used to transport the contraband). It is undisputed that appellee’s vehicle was neither used nor intended for use to transport, hold or conceal the contraband. His vehicle was used only to transport himself to the site where the cocaine was located and the sale eventually took place.

By transporting appellee to the site, his vehicle was certainly used to facilitate the sale of the cocaine. It was not, however, used to facilitate the transportation of the cocaine, which was presumably already at the site. The argument advanced by the State in support of the condemnation of appellee’s car has been rejected in other jurisdictions having condemnation statutes comparable to ours and we hereby reject it in Georgia. “The State contends that the federal courts have applied the forfeiture provision of the federal Controlled Substances Act to vehicles used solely to transport people to the site [185]*185of drug transactions. [Cits.]. . . . The State argues that we should give [OCGA § 16-13-49 (a) (4)] the same meaning as [the federal statute]. We are not persuaded. The State’s argument . . . has a fatal flaw. The language in the federal statute is different. . . . [The federal] statute is far broader than [OCGA § 16-13-49 (a) (4).] It reaches vehicles used to facilitate the sale, receipt, possession or concealment of property regardless of whether they are used to transport anything. The federal cases relied on by the State depend on that part of the federal statute missing in our [SJtate version. In each of those cases, the court held that the vehicle had been used to facilitate the transportation or sale of controlled substances. [Cits.] Facilitating [the] sale of a controlled substance does not subject a vehicle to forfeiture under our statute. . . . [Thus,] vehicles are subject to forfeiture [under OCGA § 16-13-49 (a) (4)] only if used, or intended for use, to transport or facilitate the transportation of controlled substances. The statute does not apply to [appellee’s vehicle].” (Emphasis in original.) Kahler v. Kernes, 711 P2d 1043, 1045-1046 (Wash. App. 1985).

Judgment affirmed.

McMurray, P. J., concurs. Beasley, J., concurs specially.

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Carley, Chief Judge.

Pursuant to OCGA § 16-13-49 (a) (4), the State filed a condemnation proceeding against a vehicle belonging to appellee. At a bench trial, the following evidence was adduced: Appellee met with an undercover agent. The agent agreed to follow in his vehicle as appellee drove to an apartment complex. At the apartment complex, appellee offered to sell the agent cocaine. When the agent accepted the offer, appellee entered one of the apartments. He returned with the cocaine and the sale was consummated in the agent’s vehicle. There was no evidence that any cocaine or other controlled substance was ever in appellee’s vehicle or on his person while he was an occupant of his vehicle. On this evidence, appellee’s motion for directed verdict was granted. The State appeals from that ruling.

“In a non-jury case, it is procedurally incorrect to move for a directed verdict; and such a motion [as well as the grant thereof] will be construed as one for involuntary dismissal under Section 41 (b) of the Civil Practice Act. [Cit.] ” Kennery v. Mosteller, 133 Ga. App. 879, 880 (212 SE2d 447) (1975). OCGA § 16-13-49 (a) (4) provides: “The following are subject to forfeitures: ... All conveyances, including . . . vehicles . . . which are used, or intended for use, to transport, hold, conceal, or in any manner to facilitate the transportation, for the purpose of sale or receipt, of property described in paragraph (1) or (2) of this subsection. . . .” This “statute must be strictly construed.” Lang v. State, 168 Ga. App. 693, 695 (4) (310 SE2d 276) (1983). There is no evidence, direct or circumstantial, that any contraband was ever actually transported, held or concealed in appellee’s vehicle or was ever intended to be transported, held or concealed in that vehicle. Compare State of Ga. v. Belcher, 165 Ga. App. 139 (299 SE2d 57) (1983) (wherein there was circumstantial evidence that the vehicle had been or was intended to be used to transport the contraband). It is undisputed that appellee’s vehicle was neither used nor intended for use to transport, hold or conceal the contraband. His vehicle was used only to transport himself to the site where the cocaine was located and the sale eventually took place.

By transporting appellee to the site, his vehicle was certainly used to facilitate the sale of the cocaine. It was not, however, used to facilitate the transportation of the cocaine, which was presumably already at the site. The argument advanced by the State in support of the condemnation of appellee’s car has been rejected in other jurisdictions having condemnation statutes comparable to ours and we hereby reject it in Georgia. “The State contends that the federal courts have applied the forfeiture provision of the federal Controlled Substances Act to vehicles used solely to transport people to the site [185]*185of drug transactions. [Cits.]. . . . The State argues that we should give [OCGA § 16-13-49 (a) (4)] the same meaning as [the federal statute]. We are not persuaded. The State’s argument . . . has a fatal flaw. The language in the federal statute is different. . . . [The federal] statute is far broader than [OCGA § 16-13-49 (a) (4).] It reaches vehicles used to facilitate the sale, receipt, possession or concealment of property regardless of whether they are used to transport anything. The federal cases relied on by the State depend on that part of the federal statute missing in our [SJtate version. In each of those cases, the court held that the vehicle had been used to facilitate the transportation or sale of controlled substances. [Cits.] Facilitating [the] sale of a controlled substance does not subject a vehicle to forfeiture under our statute. . . . [Thus,] vehicles are subject to forfeiture [under OCGA § 16-13-49 (a) (4)] only if used, or intended for use, to transport or facilitate the transportation of controlled substances. The statute does not apply to [appellee’s vehicle].” (Emphasis in original.) Kahler v. Kernes, 711 P2d 1043, 1045-1046 (Wash. App. 1985).

Judgment affirmed.

McMurray, P. J., concurs. Beasley, J., concurs specially.

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387 S.E.2d 344, 193 Ga. App. 184, 1989 Ga. App. LEXIS 1422, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-of-georgia-v-hamm-gactapp-1989.

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