State ex rel. McGehee v. 1987 Oldsmobile Cutlass, Vin: 1G3NF11U9HM234685, Tag: BYX 624 , 65 O.B.A.J. 580 ( 1993 )

MEMORANDUM OPINION

JONES, Presiding Judge.

On February 8, 1992, officers of the Durant Police Department conducted a search of a home in Durant belonging to Michael Sexton’s girlfriend, Brandi Taylor. The police also searched a car in front of the house, and found marijuana concealed in a small area above the rear view mirror.

The State filed this action of forfeiture, alleging the vehicle had been used to conceal or transport drugs in violation of the Uniform Controlled Dangerous Substances Act, 63 O.S.1992 Supp. §§ 2-101 et seq. [the Act]. From an adverse judgment, State appeals.

State contends the-trial court erroneously assigned the burden of proof to the State to prove that Appellee was not an “innocent owner,” i.e., that Appellee had neither guilty knowledge nor reason to know the car was going to be used, or was in fact used, for illegal purposes.¹ State also contends Appel-lee failed to prove he was an “innocent owner.”

The “innocent owner” defense derives from the section of the Act governing seizure of “conveyances,” defined to include aircraft, vehicles, vessels, or farm implements. 63 O.S. 1992 Supp. § 2-503(A)(4). The Legislature provided an exception to forfeiture under certain circumstances:

[N]o conveyance shall be forfeited under the provisions of this section by reason of any act or omission established by the owner thereof to have been committed or omitted without the knowledge or consent of such owner, and if the act is committed by any person other than such owner the owner shall establish further that the conveyance was unlawfully in the possession of a person other than the owner in violation of the criminal laws of the United States, or of any state.

63 O.S.1992 Supp. § 2-503(A)(4)(b). This court recognized the defense as available to vehicle owners in State ex rel. Moss v. 1980 Chevrolet, 831 P.2d 654 (Okla.Ct.App.1992).

The Act places the burden of proof on the State to prove the essential elements of forfeiture. 63 O.S.1992 Supp. § 2-506(G). However, the Act is equally clear that the burden of establishing the “innocent owner” defense rests upon the owner. The exception in § 2-503(A)(4)(b) depends upon proof “established by the owner” of the property which the State seeks to forfeit. Id.; see State ex rel. Dept. of Public Safety v. 1988 Chevrolet Pickup, 852 P.2d 786, 789 (Okla.Ct.App.1993), cert. denied; cf., 63 O.S.1992 Supp. § 2-506(H) (claimant of hen, mortgage or conditional interest in property may prove his interest was created without knowledge or reason to believe property was being, or was to be used for illegal purpose charged).

Several police officers from the Durant Police Department testified at trial, detailing Michael’s criminal history. Michael’s first trouble with drugs occurred in 1985. The trial court held such evidence was too remote to be of probative value, and so excluded it. Michael was arrested twice in 1991, once in Texas, and once in OMahoma. In September, 1991, Michael was arrested in Grayson County, Texas, for possession of methamphetamine; on that occasion, the police also found marijuana in his car (the same 1987 Oldsmobile Cutlass which is the subject of this forfeiture action). In November, 1991, Michael was arrested in OMahoma, and charged with possession of drugs.

Appellee testified he bought the car for his son to drive. His testimony was somewhat vague as to the precise date he bought the car. The Sextons’ insurance agent testified an insurance policy was first issued on the 1987 Cutlass in January, 1990. The evidence shows Michael drove the car almost exclusively from that time until his arrest in February, 1992.

At the conclusion of the forfeiture trial, the trial court announced its ruling as follows:

The Court finds that the State has failed to show that Michael Shane Sexton is the owner of the automobile. The Court further finds that the respondent, Joe Sexton, is the owner of the motor vehicle. The Court further finds that the State has failed to show the respondent, Joe Sexton, had knowledge of Michael Shane Sexton’s illegal use of the motor vehicle on February 8, 1992.

[Tr. 58-59.] The trial court then ordered the vehicle to be returned to Appellee.

The trial court’s ruling reflects an obvious legal error: the burden of proof was on Appellee to prove he did not know of, nor consent to, his son’s improper use of the vehicle, not upon the State to show Appellee did know or consent. 63 O.S.1991 §§ 2-503(A)(4)(b).

Appellee testified he did not have actual knowledge that Michael had marijuana in the car in February, 1992. However, the “innocent owner” defense is not established by mere denial of actual knowledge. The inquiry here is whether an owner consented to or had guilty knowledge — i.e., actual knowledge or reason to know — of the improper use of the vehicle. Resolving that issue requires consideration of prior drug activities and/or arrests, reputation in the community, and any other circumstance bearing on the existence of guilty knowledge on the part of the owner.²

Appellee paid for substance abuse treatment for his son before Michael’s 1991 arrests. Michael promised he would not use the Cutlass for drug activity if his father allowed him to drive it. Apparently, Michael made similar promises after each of his arrests in 1991. The record does not- show Appellee ever took the car back from Michael, or flatly prohibited Michael from using it for drug-related activities.

This Court is not obliged to accept the trial court’s findings if they are irretrievably tainted by legal error. See Patchell v. Garvin, 66 Okla. 184, 168 P. 423, 424 (1917); Manwell v. Grimes, 48 Okla. 72, 149 P. 1182, 1182 (1915) (Court’s syllabus no. 4). Based upon our review of the trial record, we hold the trial court’s error as to the burden of proof was prejudicial, and requires reversal for a new trial. Martin v. Pribil, 186 Okla. 27, 95 P.2d 853, 855 (1939); Eagle-Picher Mining & Smelting Co. v. Layton, 182 Okla. 405, 77 P.2d 1137, 1140 (1938).

The judgment awarding the vehicle to Ap-pellee is reversed, and this case is remanded to the trial court for new trial.

REVERSED AND REMANDED.

ADAMS, J., concurs. HANSEN, C.J., dissents with separate opinion.

1 . Appellee conceded on the record, and in its brief on appeal, that the vehicle was being used unlawfully, to conceal and/or to transport drugs in violation of the Act.

2 . We note in this regard those prior decisions from this court which have reached a like conclusion as to the other element of the "innocent owner” defense. In State ex rel. Moss v. $715.00, 833 P.2d 1263 (Okla.Ct.App.1992) (opinion on rehearing), this court construed the phrase "unlawfully in the possession of a person other than the owner” in § 2-503(A)(4)(b) to require the owner to show he "did not know and had no reason to know that the non-owner was going to use the property for unlawful purposes.” Id., at 1265 [emphasis added]; see also State ex rel. Dept. of Public Safety v. 1988 Chevrolet Pickup, 852 P.2d 786, 789 (Okla.Ct.App.1993), cert. denied (owner’s testimony of no knowledge or reason to know of permissive user’s use of vehicle under influence of alcohol and no consent to such use sufficiently established "unlawful possession").

We note also decisions from other jurisdictions are in accord with the views expressed here. See Mitchell v. State, 819 S.W.2d 659, 662-63 (Tex.Ct.App.1991); Pugh v. State ex rel. Galanos, 441 So.2d 931, 933-34 (Ala.Ct.Civ.App.1983); cf., McDorman v. State, 757 S.W.2d 905 (Tex.Ct.App.1988), writ denied (implied consent).