State v. Bass

EAGLES, Judge.

Atlas’ first assignment of error is that the trial judge improperly allowed the state to present, through witness Fred McKinney, hearsay evidence. We disagree, because we find that McKinney’s testimony concerning the reputation of the individuals involved was not offered to establish the truth of the statements.

McKinney testified, inter alia: that he was a state agent assigned to the Federal Drug Enforcement Office; that he had specialized in investigating aircraft and boat smuggling operations since 1975; that frequently aircraft used in drug smuggling were subject to a conditional sales agreement (to “give the owner a margin of safety ... he could say he was in the process of selling it”); that the Kern-Cameron organization was well-known to law enforcement throughout the country; that the Kern-Cameron organization converted large military surplus aircraft to be used to smuggle illegal drugs into the United States; that the Russell Jack Kern who had been involved with drug-smuggling operations was the same Russell Jack Kern that earlier testimony had shown had owned an airfield where the DC4 aircraft belonging to Atlas was stored in Tucson, Arizona, and had arranged for it to be moved to Texas; that the F.A.A. ferry permit to move the DC4 aircraft belonging to Atlas listed Jack Kern as the registered agent of the owner; that McKinney’s investigation revealed that there was no corporation listed with North Carolina’s Secretary of State known as Carolina Dust and Spray; that the president of Atlas kept a car at Jack Kern’s airport in Tucson, Arizona; that the Texas airport where the DC4 aircraft was stored pending modifications was owned by I. N. Burchinal, Jr.; that Burchinal had sold several airplanes that had been involved in drug smuggling; that an article in the Wall Street Journal mentioned Bur-chinal’s airport as a base for smuggling airplanes and where aircraft were prepared for smuggling; and that Benjamin Widt-feldt, the president of Atlas, had sold several airplanes which later were seized while transporting marijuana. McKinney testified that much of this information came from law enforcement agency files.

Applicant Atlas would have us hold that McKinney’s testimony was inadmissible hearsay. Whenever the assertion of any person, other than that of the witness himself in his present testimony, is offered to prove the truth of the matter asserted, the evidence is hearsay. If offered for any other purpose, it is not hearsay. 1 Brandis, N.C. Evidence § 138 (2d rev. ed. 1982); see State v. Miller, 282 N.C. 633, 642, 194 S.E. 2d 353, 359 (1973).

Before seized property may be returned, a claimant must show, inter alia, “that he had no knowledge, or reason to believe, that it was being or would be used in the violation of laws of this State relating to controlled substances.” G.S. 90-112.l(b)(ii). Since the president of Atlas denied any knowledge of illegal activity involving the aircraft, the State had the burden of negating that denial. McKinney’s testimony was not presented to prove the truth of the connections between Atlas and Jack Kern and drug smuggling operations, but rather to show that the president of Atlas knew or had reason to believe that the DC4 aircraft would be used to smuggle illegal drugs because he knew or had reason to believe that Kern and others had reputations for dealing in illegal drugs and aircraft for smuggling illegal drugs. 1 Brandis, N.C. Evidence § 148 (2d rev. ed. 1982). The trial judge did not err in allowing McKinney’s testimony or in refusing to allow applicant Atlas’ motions to strike that testimony.

Applicant Atlas also assigns as error the trial court’s denial of Atlas’ application for return and possession of the seized aircraft. Atlas asserts that the findings of fact and conclusions of law were not supported by competent evidence and that the judgment entered by the trial court was thereby incorrect. We have carefully examined the findings of fact and conclusions of law and hold that they were supported by competent evidence. The judgment denying Atlas’ application for return and possession of the aircraft and ordering forfeiture of the aircraft is

Affirmed.

Judges Webb and Phillips concur.