                                   WHOLE COURT

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules/


                                                                     March 30, 2015




In the Court of Appeals of Georgia
 A14A1619. THE STATE v. WEST.

      RAY, Judge.

      In this forfeiture action, the trial court denied the State’s forfeiture of West’s

vehicle after West pled guilty and was convicted of possession of marijuana with

intent to distribute. The State argues that the trial court misinterpreted the applicable

provision of the forfeiture statute, OCGA § 16-13-49 (d) (6), and erroneously held

that West’s vehicle, which was in close proximity to his apartment in which the drugs

were seized, was not subject to forfeiture because the State lacked evidence that the

vehicle was in any way connected to the unlawful activity. We agree with the State

that the plain language of the statute imposes no such requirement and, therefore,

reverse.
      The pertinent facts are undisputed. In June 2012, law enforcement officers

executed a search warrant of an apartment in which West resided. The officers located

and seized large amounts of marijuana, as well as scales and other equipment

indicative of distribution. They also seized West’s 1984 Oldsmobile Cutlass Supreme

which, as held by the trial court, “was parked in the front yard of the residence

directly in front of the door.” No contraband or money was found in the vehicle, no

statement was made to police related to drug activity involving the vehicle, and no

observation was made of West in or around the vehicle prior to the execution of the

search warrant. West subsequently entered a guilty plea to possession of marijuana

with intent to distribute and was sentenced on that charge.

      The State instituted forfeiture proceedings against West’s vehicle pursuant to

OCGA § 16-13-49 (d) (6), asserting that it was subject to forfeiture because it was

located in “close proximity” to the marijuana. That statutory provision declares as

contraband subject to forfeiture “[a]ll moneys . . . or other things of value which are

found in close proximity to any controlled substance or marijuana or other property

which is subject to forfeiture under this subsection.”

      West filed an answer and statutory defense in which he asserted that he

purchased the vehicle with money received through employment and student loans,

                                          2
and that it was not subject to forfeiture because it was not in close proximity to the

marijuana or any other contraband, nor did it contain any contraband or money

derived from unlawful activity.

      The trial court thereafter issued an order holding that the vehicle was not

subject to forfeiture on the basis of close proximity alone, in the absence of facts

connecting the vehicle to West’s illegal activity. Implicit in the order is the trial

court’s finding that the vehicle was, as a factual matter, located in “close proximity”

to the marijuana seized from the apartment.

      The State argues that the trial court misinterpreted the statute in holding that

proximity alone was insufficient to authorize the forfeiture. We agree.

      To resolve this issue, we must apply the controlling principles of statutory

construction. When interpreting a legislative act, a court “must afford the words of

the statute their ordinary signification, and . . . presume that the General Assembly

meant what it said and said what it meant.” (Citations and punctuation omitted.)

Arby’s Restaurant Group, Inc. v. McRae, 292 Ga. 243, 245 (1) (734 SE2d 55) (2012);

see OCGA § 1-3-1 (b). “[When] the language of a statute is plain and unambiguous,

judicial construction is not only unnecessary but forbidden.” (Citation and

punctuation omitted.) Arby’s Restaurant Group, supra at 245 (1). To the extent that

                                          3
judicial construction is necessary, “[w]e must seek to give meaning to each part of the

statute and to avoid constructions which render a portion of the statute mere

surplusage.” (Citation and punctuation omitted.) City of Buchanan v. Pope, 222 Ga.

App. 716, 717 (1) (476 SE2d 53) (1996). Finally, “it is a basic rule of construction

that a statute or constitutional provision should be construed to make all its parts

harmonize and to give a sensible and intelligent effect to each part, as it is not

presumed that the legislature intended that any part would be without meaning.”

(Citation and punctuation omitted.) Id.

      OCGA § 16-13-49 (d) (6) does not require evidence that property found in

“close proximity” to marijuana be further connected to the illegal activity in order to

be subject to forfeiture. To the contrary, the plain and unambiguous language states

that “all . . . things of value which are found in close proximity to . . . marijuana” are

subject to forfeiture. OCGA § 16-13-49 (d) (6). Our interpretation is buttressed by the

fact that other provisions within the same statute explicitly contain such a

requirement. Compare OCGA § 16-13-49 (d) (2) (authorizing 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 (d) (3) (authorizing forfeiture of “[a]ll property located in this state

                                            4
which was, directly or indirectly, used or intended for use in any manner to facilitate

a violation of this article”); OCGA § 16-13-49 (d) (4) (authorizing forfeiture of “[a]ll

weapons possessed, used, or available for use in any manner to facilitate a violation

of this article”). Moreover, OCGA § 16-13-49 (e) (2) creates an exception for

violations involving four ounces or less of marijuana, imposing the additional

requirement that property be “used to facilitate a transaction in or a purchase of or

sale of” marijuana in order to be forfeited.

      While agreeing that we have appropriately applied our precedent in holding

that OCGA § 16-13-49 (d) (6) does not require that there be a nexus between the drug

activity and the automobile at issue, other than it be found in close proximity to the

drugs, the dissent both questions our prior interpretation of this statute and the

constitutionality of this statutory scheme. Arguably, the forfeiture laws have

sometimes led to unfair results and failed to protect the rights of innocent

individuals.1 However, it is equally true that such criticism is more appropriately

addressed to the General Assembly, which can change the law, or to the Supreme

Court, which has jurisdiction on appeal of constitutional challenges. Given that West

      1
       We note, however, that West is hardly an innocent victim. Lest we forget, he
pled guilty to the charge of possession of marijuana with intent to distribute, from
which this forfeiture action arose.

                                           5
did not raise before the trial court or on appeal a constitutional challenge to the

breadth of the statute or to its application to him under these facts, the dissent’s

discussion of the same is not apt.

       Additionally, the dissent argues that the case should nevertheless be remanded

to the trial court because, it contends, the trial court did not reach the issue of whether

the car was found in close proximity to the drugs. Everyone - the trial court, the State,

and West - agreed that the vehicle had to be in close proximity to the drugs to be

subject to forfeiture. The statute specifically says as much. Yet, under the dissent’s

rationale, the trial court ignored this provision and, instead, judicially imposed into

the statute its own requirement that the car had to be used in the drug activities to be

at risk for forfeiture. If the trial court wanted to deny the forfeiture, why would it have

added a new requirement to the statute unless it had already concluded that the car

was found in close proximity to the drugs? The short answer is that it wouldn’t have.

The car was found “parked in the front yard of the residence directly in front of the

door” where the drugs were found. The only logical conclusion is that the trial court

moved on to consider whether the car was actually used in the drug activities after

finding that it was in close proximity thereto.



                                            6
      Having found that the plain and unambiguous language of OCGA § 16-13-49

(d) (6) requires nothing more than a geographical connection between the drugs and

the property sought to be forfeited, we hereby reverse the decision of the trial court

to deny the forfeiture of the subject vehicle.

      Judgment reversed. Andrews, P. J., Barnes, P. J., and Branch, J, concur.

Doyle, P. J., McFadden and Boggs, JJ., dissent.




                                           7
 A14A1619. THE STATE v. WEST.



      BOGGS, Judge, dissenting.

      I agree with the dissent that the trial court did not make an implicit finding on

close proximity and that this case should be remanded for the court to apply the

proper standard pursuant to OCGA § 16-13-49 (d) (6). But I cannot join the dissent

because of what is said in Division 2, and I therefore write separately.

      As noted to some degree by both the majority and Judge McFadden’s dissent,

I agree that our civil forfeiture laws can be applied to work an inequity upon those

innocent of wrongdoing. Of course, as the majority points out, such concerns are less

prevalent in this case given that the defendant pled guilty and no presumed innocent

third party has objected to the forfeiture. However, I take this opportunity to

illuminate the absurdity with which forfeiture may be applied in other contexts. As

enacted, OCGA § 16-13-49 (d) (6) authorizes the forfeiture of all things of value

“which are found in close proximity to” the contraband. Taken to its most extreme

point, this statutory language would permit the forfeiture of the Big Green Egg on the

deck, the coffee maker in the kitchen, and the light fixtures in the home, despite the

lack of any nexus between those items and any crime. However, issues regarding

nexus and constitutionality have not been enumerated as error by the appellant, not
briefed by the parties, and not been raised and ruled upon in the trial court.

Consequently, it is not for this court to opine on such matters. As a result, the

statutory/constitutional discussion in Division 2 of Judge McFadden’s dissent,

whatever its objective merit, is not necessary for the resolution of this case. These

issues are more appropriately addressed by the General Assembly or our Supreme

Court in a case which squarely presents them for appellate review.

      I am authorized to state that Doyle, P. J., joins in this dissent.




                                           2
 A14A1619. STATE OF GEORGIA v. WEST.



      MCFADDEN, Judge, dissenting.

      I respectfully dissent. Although I agree with the majority that the trial court’s

interpretation of OCGA § 16-13-49 (d) (6) is contrary to our case law, I see no

implicit finding in the trial court’s order that the vehicle was, as a factual matter,

located in “close proximity” to the marijuana seized from the apartment. I would

therefore vacate the trial court’s order and remand for further proceedings.

      In addition I question the soundness of our case law construing the residual

clause of OCGA § 16-13-49 (d) (6). I am strongly inclined to hold that we have erred

in applying that clause to things not of the same kind or class as moneys, negotiable

instruments, and securities. But because the parties have not directly addressed this

issue, I would not reach it today.

      1. Trial court’s findings.

      The state instituted forfeiture proceedings against West’s automobile based on

OCGA § 16-13-49 (d) (6). Each of the six subsections of § 16-13-49 (d), which is set
out in full in the margin,1 describes a category of property subject to forfeiture.


      1
       The following are declared to be contraband and no person shall have a
property right in them:

 (1) All controlled substances, raw materials, or controlled substance analogs that
have been manufactured, distributed, dispensed, possessed, or acquired in violation
of this article;

 (2) All 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;

 (3) All property located in this state which was, directly or indirectly, used or
intended for use in any manner to facilitate a violation of this article or of the laws of
the United States or any of the several states relating to controlled substances which
is punishable by imprisonment for more than one year or any proceeds derived or
realized therefrom;

 (4) All weapons possessed, used, or available for use in any manner to facilitate a
violation of this article or any of the laws of the United States or any of the several
states relating to controlled substances which is punishable by imprisonment for more
than one year;

 (5) Any interest, security, claim, or property or contractual right of any kind
affording a source of influence over any enterprise that a person has established,
operated, controlled, conducted, or participated in the conduct of in violation of this
article or any of the laws of the United States or any of the several states relating to
controlled substances which is punishable by imprisonment for more than one year
or any proceeds derived or realized therefrom; and

 (6) All moneys, negotiable instruments, securities, or other things of value which are
found in close proximity to any controlled substance or marijuana or other property
which is subject to forfeiture under this subsection.


                                            2
Subsection (d) (6) provides:

      The following are declared to be contraband and no person shall have
      a property right in them: [a]ll moneys, negotiable instruments, securities,
      or other things of value which are found in close proximity to any
      controlled substance or marijuana or other property which is subject to
      forfeiture under this subsection.


As the majority holds, the plain language of the statute provides that proximity alone

is sufficient to authorize forfeiture of property subject to subsection (d) (6), and the

trial court erred in holding otherwise. “The state need only prove that the property as

to which forfeiture is sought falls within one of [the] six categories [of OCGA § 16-

13-49 (d)] in order to prevail.” Pitts v. State, 207 Ga. App. 606, 608 (2) (428 SE2d

650) (1993).

      But there is no basis for the majority’s holding that the trial court made an

implicit factual finding that West’s car was in close proximity to the marijuana seized

from the apartment. The state’s sole argument as to the car has two elements: as a

matter of fact, it was in close proximity to the drugs; as a matter of law, close

proximity authorizes forfeiture. Rejecting either element would have authorized and

required the trial court to deny the forfeiture. The trial court’s order addresses the


OCGA § 16-13-49 (d).

                                           3
legal element at some length but says nothing one way or the other about the factual

element.

      The majority’s holding rests on unfounded speculation. “If the trial court

wanted to deny the foreclosure,” the majority asks, “why would it have added a new

requirement to the statute unless it had already concluded that the car was found in

close proximity to the drugs?” The premise of that question is that the trial court

started from the outcome he wanted and worked backwards. I reject that premise.

      Determining whether the car was in close proximity to the drugs for purposes

of OCGA § 16-13-49 (d) (6) is a matter for the trial court’s fact-finding and

discretionary authority. The majority usurps that authority.

      I would vacate the trial court’s decision and remand for further proceedings.

      2. Construction of the residual clause of OCGA § 16-13-49 (d) (6).

      Moreover, notwithstanding the case law which the state accurately cites, I

question whether OCGA § 16-13-49 (d) (6) authorizes forfeiture of anything other

than money and money substitutes. Although those cases do apply subsection (d) (6)

to motor vehicles, their construction of that subsection is not necessary to their

results. Each case finds alternative justification for seizure of the vehicle at issue in

another subsection of OCGA § 16-13-49 (d). Hodge v. State, 257 Ga. App. 203, 204-


                                           4
205 (2) (570 SE2d 666) (2002) (vehicles were subject to forfeiture under (d) (2) and

(d) (6)); Manley v. State, 217 Ga. App. 556, 557-559 (3) (458 SE2d 179) (1995)

(truck was subject to forfeiture under (d) (2) and (d) (6)).

      And those cases do not address the canon of ejusdem generis. Under that

canon, when a statute lists “by name several particular things, and concludes with a

general term of enlargement, this latter term is to be construed as being ejusdem

generis (i.e., of the same kind or class) with the things specifically named, unless, of

course, there is something to show that a wider sense was intended.” Center for a

Sustainable Coast v. Coastal Marshlands Protection Comm., 284 Ga. 736, 737-738

(670 SE2d 429) (2008) (citations and punctuation omitted). The statute here includes

“a list of specific items separated by commas[, ‘moneys, negotiable instruments,

securities,’] followed by a general or collective term, [‘other things of value’].”

Warren v. State, 294 Ga. 589, 591 n. 2 (755 SE2d 171) (2014). It follows that the

General Assembly intended the phrase “other things of value” to mean things of the

same kind or class as “moneys, negotiable instruments, [and] securities.” There is

nothing to show that a wider sense was intended. See Center for a Sustainable Coast,

284 Ga. at 737-738. On the contrary, a narrow reading of subsection (d) (6) is




                                           5
supported by the five preceding subsections, each of which deals with a distinct

category of property.



      Those cases also fail to address the rule that, to surmount a constitutional

challenge to a forfeiture, there must be some nexus between the crime and the

property to be forfeited. Howell v. State, 283 Ga. 24, 26 (1) (656 SE2d 511) (2008).

As to “moneys, negotiable instruments, [and] securities” the General Assembly

supplied that nexus by providing that

      [t]he fact that money or a negotiable instrument was found in proximity
      to contraband or to an instrumentality of conduct giving rise to forfeiture
      authorizes the trier of the fact to infer that the money or negotiable
      instrument was the proceeds of conduct giving rise to forfeiture or was
      used or intended to be used to facilitate such conduct.


OCGA § 16-13-49 (s) (2). (Negotiable instruments include “bills of exchange,

promissory notes, bank checks, certificates of deposit, and other negotiable

securities.” Black’s Law Dictionary (9th ed. 2009).) To expand subsection (d) (6) to

allow the forfeiture of things other than the money and money substitutes specified

in subsection (s) (2) creates constitutional problems due to the absence of a nexus.

Such a construction would authorize forfeiture of everything in a home where drugs


                                          6
are found: every stick of furniture, every stitch of clothing. The General Assembly is

unlikely to have intended such an outcome. See Ga. Transmission Corp. v. Worley,

312 Ga. App. 855, 856 (720 SE2d 305) (2011) (“[A]ll statutes are presumed to be

enacted with full knowledge of existing law[,] and their meaning and effect [are] to

be determined with reference to the constitution as well as other statutes and

decisions of the courts.”) (citation omitted).

      But as the majority observes, “West did not raise in the trial court or on appeal

a constitutional challenge to the breadth of the statute or to its application to him

under these facts.” Nor did he raise in the trial court or on appeal the question of the

proper scope of the residual clause of OCGA § 16-13-49 (d) (6). So, although we

have the authority to affirm a judgment if it is right for any reason, I would leave the

scope of subsection (d) (6) for another day and remand for proceedings consistent

with this opinion. City of Gainesville v. Dodd, 275 Ga. 834, 839 (573 SE2d 369)

(2002) (Sears, P. J., concurring specially) (courts may decline to review issue not

ruled upon by the trial court if issue is not adequately briefed or argued by the parties

on appeal).




                                           7
