STATE of North Carolina
v.
Timothy MEYERS.
In the Matter of a 1978 MERCURY MARQUIS COUPE AUTOMOBILE on Petition of Pasquale Morgigno.
No. 794SC950.
Court of Appeals of North Carolina.
March 18, 1980.*837 Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen. John R. B. Matthis and Asst. Atty. Gen. Acie L. Ward, Raleigh, for the State.
Jeffrey S. Miller, Jacksonville, for petitioner-appellant.
HEDRICK, Judge.
Among other things petitioner argues on appeal that to allow the forfeiture of his car under the circumstances of this case will result in a deprivation of his property without due process of law. He bases this argument on his observation that the "undisputed" evidence of record "shows that he did not know Timothy Meyers or Timothy Mosley and never authorized them to use his car for any purpose whatsoever."
While our statutes authorize the immediate forfeiture of vehicles used in the illegal transportation of controlled substances, see G.S. §§ 90-112 and 18A-21, the power is not absolute. "Forfeiture may be defeated if the claimant can show the illegal use occurred without his knowledge or consent, with the claimant having the right to have a jury pass upon his claim." State v. Richardson, 23 N.C.App. 33, 36, 208 S.E.2d 274, 276, cert. denied, 286 N.C. 213, 209 S.E.2d 317 (1974). See also State v. McPeak, 243 N.C. 273, 90 S.E.2d 505 (1955); State v. O'Hora, 12 N.C.App. 250, 182 S.E.2d 823, appeal dismissed, 279 N.C. 513, 183 S.E.2d 690 (1971); Annot., 50 A.L.R.3d 172, 189 (1973 & Supp.1979). That means simply that the claimant is entitled to have the fact-finder, whether court or jury, determine the essential issue in a forfeiture proceeding, namely: Was his vehicle being used illegally to transport controlled substances without his knowledge or consent? The burden is on the claimant to prove to the fact-finder "that he had no knowledge, or reason to believe, that [the vehicle] was being or would be used in the violation of laws of this State relating to controlled substances . . . ." G.S. § 90-112.1(b) (1979 Cum.Supp.). If the claimant carries this burden, he is entitled to the return of his vehicle. G.S. § 90-112.1(c) (1979 Cum. Supp.).
In the present case Judge Bruce purported to determine the question of the petitioner's knowledge of or consent to the illegal use of his car by Meyers and Mosley when he concluded that the petitioner had "failed to show by the greater weight of the evidence that he had no reason to believe" that his car would be used in violation of our laws. However, this confusingly-phrased "conclusion" fails to determine the essential issue in at least two crucial respects: First, the conclusion is not supported by the meager findings of fact. The court's findings that the automobile was seized while being used to transport controlled substances; that Meyers and Mosley were convicted of transporting the same; that the car is presently in the possession of the Onslow County Sheriff's Department; *838 and that the car belongs to the petitioner, do not lead in any conceivable way to the conclusion that petitioner has failed to carry his burden to show lack of knowledge. The court has made no attempt to enter any findings with respect to the petitioner's knowledge of the purpose for which his car was being used. But, factual determinations concerning what he knew, or had reason to believe, or to what uses of his vehicle he actually or impliedly consented, must be made before the fact-finder can answer the essential issue and before it can conclude that the petitioner has failed to carry his burden. See State v. Richardson, supra.
Perhaps the reason the court's findings prove so deficient results from the total lack of evidence from which findings to support such a conclusion could be made. All the evidence in this case dictates the contrary conclusion. This is the second and most significant infirmity of the conclusion entered by Judge Bruce. The uncontradicted testimony of the petitioner is that he entrusted his car to Marino, who, from the record before us, has not been linked in any respect to the transaction between Officer Stewart on the one side, and Meyers and Mosley on the other; that petitioner was in jail in Wilmington when Meyers and Mosley used his car to transport qualudes; that he did not know and had never met those two individuals; and that he had not authorized such a use of his car, nor did he know until approximately a week after the vehicle was seized, that it had been used in violation of the narcotics laws. The only permissible conclusion to be drawn from his testimony, which we emphasize is the only evidence on the essential issue of knowledge, is that the petitioner has carried his burden of proving that he did not know and had no reason to believe that his car was being used by Meyers and Mosley to transport controlled substances. It follows that he was entitled to the return of his car. G.S. § 90-112.1(c) (1979 Cum.Supp.).
The record discloses, however, that, subsequent to the entry of the order of forfeiture, the parties agreed to the sale of the car, and an Order of Sale was thus entered on 13 July 1979. In that Order Judge Bruce directed that the proceeds of the sale which remained after the deduction of certain expenses, be held by the Clerk of Superior Court of Onslow County pending the outcome of this appeal. We hold that the petitioner is now entitled to those proceeds.
For the reasons stated, the judgment is reversed, and the cause is remanded to the Superior Court for the entry of an Order releasing the proceeds of the sale of the automobile to petitioner.
Reversed and remanded.
WEBB and WELLS, JJ., concur.