dissenting:
I dissent. I would affirm the trial court.
In its Notice of Seizure and Forfeiture, State served both Michael Shane Sexton and Joe Sexton, Michael’s father. Only Joe Sexton, the Appellee here, answered State’s petition for forfeiture. Joe Sexton alleged he was the owner of the automobile subject to the action and that any use of the automobile by Michael Sexton involving controlled substances was without Joe Sexton’s knowledge or consent.
The State does not controvert that Joe Sexton is the record owner of the automobile. At the forfeiture hearing held in accordance with 63 O.S.1991 § 2-506, State adduced evidence regarding indicia of ownership in Michael Sexton, contending Michael Sexton was the owner for purposes of the forfeiture statutes. The trial court found State had failed to show Michael Sexton was the owner of the automobile, that Joe Sexton was the owner and that State had failed to show Joe Sexton had knowledge of Michael Sexton’s illegal use of the automobile on February 8, 1992.
Forfeiture statutes must be strictly construed. Forfeiture will not be decreed except when required by clear statutory language. State v. Nesbitt, 634 P.2d 1306 (Okla.1981).
With regard to the ownership of the ear, Joe Sexton testified he was the sole and record owner of the automobile and had been since its purchase. He further testified he paid for the ear and that Michael Sexton had contributed nothing towards the purchase. Joe Sexton stated he had allowed his son to use the automobile to go to work and for other purposes, that his son uses it more than other family members but that his son is not the sole driver of the automobile.
In support of its contention that Michael Sexton was the owner of the automobile for purposes of the forfeiture statutes, State argues he exercised “exclusive custody and control” over the car. That argument is inconsistent with the evidence. While there is ample evidence that Michael Sexton was the predominant user, this evidence falls well short of exclusive control and custody.
*1358State also relies on the evidence that Michael Sexton, not Joe Sexton, maintained insurance on the automobile and held himself out as the owner when the insurance was purchased. Even presuming Michael Sexton considered himself to be the lawful owner, his manifestations are not determinative of that issue.
Ownership for purposes of forfeiture is not defined by statute (See 63 O.S.1991 § 2-101), nor does State cite any Oklahoma decision defining the term for that purpose. State has not demonstrated the Legislature intended dominion, custody and control to be the exclusive criteria for defining ownership of forfeitable property.
This case was not tried to a jury. The majority’s reversal is based on State’s contention the trial court erred when it placed the burden on State to prove Joe Sexton had knowledge of his son’s illegal use of the car on February 8, 1992. Presuming the trial court improperly placed the burden of proof on State, this Court should decline to substantively consider this contention. State asks us to reverse the lower court’s order based on this alleged error, but provides no legal authority to support our taking such action. Additionally, the finding was made in open court without objection or comment by State. Error, if any, was known to State and should have been brought to the lower court’s attention when that court could have corrected its error. Further, Appellee met his burden of proof. Joe Sexton’s lack of knowledge is sufficiently supported by his own testimony. There is no prejudice shown by any suggestion of improper consideration of burden of proof by the trial court.
Joe Sexton’s defense of the forfeiture is based on the concept of “innocent owner”, which has been recognized by the Court of Appeals to extend to owners such as he. State ex rel. Moss v. 1980 Chevrolet, 831 P.2d 654 (Okla.App.1992). The statutory basis for the defense is found at 63 O.S.1991 § 2-503(A)(4)(b).
The evidence sufficiently establishes Joe Sexton was the owner of the seized automobile, within the meaning of that term in the forfeiture statutes. He was not only the owner of record, but the only evidence of record on the point shows Michael Sexton’s use was at the pleasure of his father.
Joe Sexton testified he had no actual knowledge that his son was going to conceal or transport marijuana in the automobile. He testified he had counselled his son against drug involvement, specifically against using any of the family vehicles in that involvement. He had threatened to take away the automobile if his son was further involved with drugs. Joe Sexton stated his son “promised me faithfully he wouldn’t do it again if I would let him drive the car”. Clearly Joe Sexton did not give permission to his son to use the car in violation of the drug laws.
The majority opinion holds constructive knowledge is sufficient under 63 O.S.1991, § 2-503(A)(4)(b). It holds because Joe Sexton was aware of his son’s prior involvement in illegal drug activities, he should not have believed Michael when Michael represented he would refrain from any further such activities, and that Joe Sexton should have known his son would be further involved with drugs. I disagree.
There is no Oklahoma authority in support of a constructive knowledge or consent argument regarding the knowledge requirement in 63 O.S.1991 § 2-503 as it pertains to an owner’s knowledge or consent to the illegal act or omission. To find constructive knowledge sufficient, as the majority has done, would open up for seizure, the car of any parent of a child who is in trouble with drugs. Under the circumstances and evidence here, the trial court did not err in finding Joe Sexton did not act unreasonably in allowing his son to use the automobile.
State contends Joe Sexton failed to establish the automobile was unlawfully in his son’s possession, another requirement under § 2-503(A)(4)(b). The evidence does establish Michael Sexton’s initial use of the automobile was permissive.
However, the Court of Appeals has construed the unlawful possession phrase to hold *1359a non-owner’s possession is unlawful, even if the initial use was permissive, if the owner did not know the property was going to be used for unlawful purposes. State ex rel. Moss v. Seven Hundred Fifteen Dollars, 833 P.2d 1263 (Okla.App.1992). Joe Sexton’s lack of knowledge is supported by the evidence.
The trial court’s order is clearly supported by the evidence and that order should be AFFIRMED.