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RUFFIN, Judge.
Forfeiture. Henry Superior Court. Before Judge Smith.
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 jury 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: "[al 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).
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.
BEASLEY, Chief Judge, 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. I 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 OCGA 16-13-30 (b), to which he pleaded guilty The large number of small plants being nurtured in the room or shed attached to Rabern's house constitutes circumstantial evidence that they were in the early stages of cultivation for ultimate sale or at least distribution. The evidence supported the inference that it was the grower's intention to sell or otherwise dispose of the plants in "a transaction" rather than simply grow them as a hobby or experiment or for personal use. Thus the property was in use as a nursery to produce the product which would constitute the object of future sale or transaction; the real property "was used to facilitate" the enterprise in this fashion.
This case does not involve a loophole in the last sentence of OCGA 16-13-49 (e) but rather a proper construction of that sentence in context. It creates an exception that does not cover this case because, although less than "four ounces of marijuana" was involved, the other factor necessary for the exception was absent. The majority's proper construction does not obliterate the exception. Growing a plant or small number of plants of marijuana, for example, would probably not support as reasonable the inference that the property hosting the plant or plants "was used to facilitate a transaction in . . . or sale of . . . marijuana." More likely would be the facilitation of personal use. It is evident from the wording that the legislature intended to exclude such host property from the severe penalty of forfeiture. The property subject to forfeiture, when small amounts of contraband are involved, must be in current or past use to facilitate a transaction, purchase, or sale which is current or past or intended for the future.
I agree that Carr v. State of Ga., 212 Ga. App. 36 (441 SE2d 85) (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. OCGA 16-13-49 (z). The rules are compatibly applied in our construction of the sentence in subsection (e) which is at issue, because the ordinary significance of the words makes the legislature's intention plain. Franklin v. Hill, 264 Ga. 302, 304 (2) (444 SE2d 778) (1994).
SMITH, Judge, 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 OCGA 16-13-49 (d) and the exception created by OCGA 16-13-49 (e) are significant. Subsections (d) (2) and (4) define property subject to forfeiture in such broad and general language as property "directly or indirectly . . . in tended for use . . . to facilitate" or "available for use. . . to facilitate" a violation of the drug laws. No actual use need be shown; the property need only be intended or available to facilitate a violation. "Available" means simply "capable of being used," or "that can be got, had, or reached," while "intended" means "designed; purposed; planned" or "prospective; future." Webster's New Universal Unabridged Dictionary (2d ed. 1983).
"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' OCGA 1-3-1 (a). All words, except words of art, shall be given their ordinary significance. [Cit.] '(W)here a constitutional provision or statute is plain and susceptible of but one natural and reasonable construction, the court has no authority to place a different construction upon it, but must construe it according to its terms.' [Cit.]" Franklin v. Hill, 264 Ga. 302, 304 (2) (444 SE2d 778) (1994).
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 OCGA 16-13-49 (e) is obliterated, and the rule swallows the exception. If this result was intended by the General Assembly, it is for the legislature, not this Court, to say so. "It is not the function of this court to rewrite the laws enacted by our General Assembly." Lam v. State, 208 Ga. App. 324, 325 (3) (430 SE2d 775) (1993).
Tommy K. Floyd, District Attorney, Gail M. Travillian, Assistant District Attorney, for appellee.
James P. Brown, Jr., for appellant.
DECIDED JUNE 26, 1996.
Thursday May 21 05:54 EDT

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