Rabern v. StateRabern v. State
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- Before:
- Ruffin
Lead Opinion
The State filed a complaint instituting in rem forfeiture proceedings pursuant to
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)
1. In his first enumeration of error, Rabern contends the trial court erred in ruling that
2. Rabern’s second enumeration of error asserts the trial court erred in allowing hearsay testimony into evidence. Under
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
In interpreting
“
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. *877There were a number of trails in the wooded area behind the residence.
In Carr, supra at 38, this Court concluded that
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
“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 *878marijuana 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
“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 (
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.
Concurrence Opinion
concurring specially.
1. I note first that the case was transferred to this Court by the Supreme Court, to which Rabern’s appeal had been taken, by an order which is based on the conclusion that “the only ruling [involving constitutionality] he invoked from the trial court involves a matter regarding which there are well-settled principles of law. . . .’’The first enumeration of error, challenging constitutionality, is beyond our jurisdiction to consider. Miller v. Ga. Ports Auth., 217 Ga. App. 876, 878 (2) (460 SE2d 100) (1995).
2.1 concur because, even without the hearsay evidence from the informant to which the property owner objected, the evidence supported the trial court’s finding of fact that, by a preponderance, the real property was used, and in fact was being used at the time of the search, “to manufacture and store marijuana for distribution.” See Bloodworth v. State of Ga., 185 Ga. App. 880 (366 SE2d 324) (1988), regarding burden of proof.
Owner Rabern was charged with manufacturing marijuana in violation of
This case does not involve a loophole in the last sentence of
I agree that Carr v. State of Ga., 212 Ga. App. 36 (441 SE2d 85) *880(1994), was correctly decided. It need not be overruled despite the statement that “subsection (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.” Id. at 37. That statement must be disapproved as an incorrect construction of the statute because it excludes the intended future, which is the purpose of the current or past use of the property.
3. The majority applies two seemingly contradictory principles of construction. One is the rule of strict construction for special statutory proceedings. State v. Henderson, 263 Ga. 508, 509 (436 SE2d 209) (1993). The other is the rule of liberal construction to effect the remedial purposes of the forfeiture statute, which rule the legislature expressly incorporated into the statute.
Dissenting Opinion
dissenting.
I must respectfully dissent. While the majority is properly concerned with an apparent loophole in the forfeiture statute, and while I have every reason to agree with the majority’s attempt to close that loophole, the attempt made here violates the plain language of the statute and places us in the position of rewriting the General Assembly’s requirements for forfeiture.
As Carr v. State of Ga., 212 Ga. App. 36 (441 SE2d 85) (1994), points out, the distinctions between the general forfeiture language of
In contrast, the exception created by subsection (e) provides: “A property interest shall not be subject to forfeiture . . . 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 a controlled substance or marijuana.” (Emphasis supplied.) This subsection requires, in the case of small amounts of drugs, that actual use, not availability or intention, be shown. Carr, supra, 212 Ga. App. at 37.
“In interpreting statutes, courts must look for the legislature’s intent, ‘keeping in view at all times the old law, the evil, and the remedy.’
What the majority leaves unsaid is perhaps as important as what is stated. The majority says “the State should not be forced to wait until these marijuana plants grow another fraction of an inch and their total weight exceeds four ounces before making the arrest and proceeding with forfeiture.” But it must follow that the majority also is saying, at least implicitly, that the State “should not be forced to wait” until an individual attempts to sell marijuana plants in an immature state. By this reasoning, the distinctive language of