        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                             Assigned on Briefs April 22, 2003

            STATE OF TENNESSEE v. TONY ALAN GARRETSON

                  Direct Appeal from the Circuit Court for Bedford County
                             No. 14,971    Lee Russell, Judge



                     No. M2002-01262-CCA-R3-CD - Filed May 13, 2003


Tony Alan Garretson, along with Harold Garretson and Tonya Garretson, sought return of numerous
guns alleged to have been unlawfully seized by law enforcement when Tony Garretson was arrested
for aggravated assault. The trial court found: (1) Harold Garretson and Tonya Garretson failed to
establish they were the lawful owners of the guns; and (2) the guns could not be returned to Tony
Garretson because he was convicted of aggravated assault and cannot lawfully possess a weapon.
On appeal, the state concedes the guns were unlawfully seized and Harold Garretson and Tonya
Garretson established proper ownership. We reverse the judgment of the trial court and remand for
another hearing.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed;
                                        Remanded

JOE G. RILEY, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR., and
NORMA MCGEE OGLE , JJ., joined.

Brenda S. Bramlett, Shelbyville, Tennessee, for the appellants, Tony Alan Garretson, Harold
Garretson, and Tonya Garretson.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General;
William Michael McCown, District Attorney General; and Michael D. Randles, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                           OPINION

        Harold Garretson (Harold) is the father of Tony Garretson (Tony), and Tonya Garretson
(Tonya) is the former wife of Tony. On January 3, 2001, Tony was arrested for offenses committed
against Tonya, and law enforcement authorities seized numerous guns at the residence. Tony was
ultimately convicted of aggravated assault. Subsequently, Tony, Harold, and Tonya sought return
of the guns pursuant to Tennessee Rule of Criminal Procedure 41(f), alleging Harold and Tonya
were the lawful owners of the guns which were unlawfully seized. Tony disclaimed any ownership
interest in the guns. The trial court found that Harold and Tonya had not met their burden of proof
in establishing ownership of the guns, and the guns could not be returned to Tony as a convicted
felon.

                                              FACTS

        The record in this case is scant. However, it does appear that the guns in question, along
with other guns, were originally seized from Tony’s residence by law enforcement prior to February
2000, when law enforcement investigated a domestic dispute. There is no indication Tony was
convicted of an offense. The guns were returned to Harold, the apparent owner, who resided in
West Virginia and was a gun collector. It is not entirely clear from the record whether the guns were
returned to Harold by virtue of a court order, voluntarily by law enforcement, or by Tony; however,
the state mentioned in its opening statement that it was “opposed to going through the process
again.”

         According to Harold’s testimony, his West Virginia home was burglarized and vandalized
in February 2000. Numerous guns were taken; however, he had twenty-six guns in a gun safe which
were not taken. Most, if not all, of these twenty-six guns were the same guns that were originally
seized and returned to Harold. He stated he brought these guns back to Tony’s residence for
safekeeping after the burglary. He said these twenty-six guns were again seized by the police when
they arrested Tony on January 3, 2001. He was unaware of the seizure until he came to Tennessee
to get his guns one month prior to the instant hearing, which was conducted in April 2002. He had
a list of his various guns, which included both shotguns and rifles; however, his descriptions were
somewhat disjointed and were not compared to a list of the guns actually confiscated.

        Tony testified that most of the confiscated guns belonged to Harold and that the other guns
belonged to Tonya, who was a hunter and shooter. He described five guns belonging to Tonya. He
conceded he had not told his father about the January 2001 arrest and seizure until shortly prior to
the instant hearing.

       Tonya testified she owned five of the confiscated guns, and her descriptions generally
matched Tony’s descriptions. She further stated Tony had no guns that were seized on January 3,
2001. She stated his guns were seized in the first confiscation and were never returned. She was
aware the other guns belonged to Harold.

       Tonya testified that Tony’s arrest on January 3, 2001, did not involve any guns. The state
concedes on appeal that this aggravated assault, for which Tony was eventually convicted, did not
involve the use of a gun.

       The state offered no proof at the hearing. A list of the confiscated guns is not in the record.

                                           ANALYSIS

       The state concedes on appeal that (1) the guns were unlawfully seized, and (2) the evidence
preponderates against the findings of the trial court that Harold and Tonya had not met their burden
of proof establishing rightful ownership of the guns.

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        Forfeitures are not favored by the law, and forfeiture statutes are to be strictly construed.
Hays v. Montague, 860 S.W.2d 403, 406 (Tenn. Ct. App. 1993). Before a confiscation statute may
be used to deprive a person of his or her property, the facts must fall within the spirit and letter of
the confiscation statute. Redd v. Tennessee Dept. of Safety, 895 S.W.2d 332, 335 (Tenn. 1995).
If property is unlawfully seized, the aggrieved person may seek its return pursuant to Rule 41(f) of
the Tennessee Rules of Criminal Procedure.

          Our statute provides that a weapon “used or sold in violation of the law shall be confiscated
. . . and declared to be contraband . . . .” Tenn. Code Ann. § 39-17-1317(a) (emphasis added). The
state correctly concedes unlawful confiscation as there was no showing that the guns were used in
the commission of the offense. Our law further provides that “[a]ny weapon that has been stolen
or borrowed from its owner, and the owner was not involved in the offense for which the weapon
was confiscated, shall be returned to the owner if permitted by law.” Id. § 39-17-1317(h)(2).

        Although ownership of the weapons presents a closer question which in many respects
depends upon the credibility of the witnesses, we accept the state’s concession that the evidence
preponderates against the findings of the trial court at least as to some of the guns. Although the
record is not entirely clear, it appears that most of these guns had previously been determined to
belong to Harold. However, we conclude a further hearing is required. Although both Harold and
Tonya gave descriptions of the various guns, the record is devoid of the actual list of the confiscated
guns held by law enforcement. Thus, we are in no position to order the return of all the guns seized
without knowing which guns were actually seized.

        Upon remand, and in the event the parties are unable to amicably resolve the issue of
ownership, a list and description of the confiscated guns shall be admitted into evidence. Harold
and Tonya will then have the opportunity to establish their ownership rights as to these guns in a
detailed and orderly fashion. The trial court may then determine whether ownership has been
properly established as to each gun.


       Accordingly, we reverse and remand for another hearing.




                                                       JOE G. RILEY, JUDGE




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