### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Bri efs April22, 2003 STATE OF TENNESS EE v. TONY ALAN GARRETS ON Direct Appeal from the Circuit Court for Bedford County

No. 14,971 Lee Russell, Judge

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

Tony Alan Garretson, along with Harold Garretson and Tony a Garretson, sought

return of numerous guns alleged to have been unlawfully seized by law enforcement when Tony Garretson was arrested for aggr avated a ssault. Th

e trial c ourt found: (1) Ha rold Gar retson a nd Tony a Garre

tson failed to establish they were

the lawful owners of the guns; and (2) t he guns could not be returned to Tony Garr etson because he was convicted of ag gravated assault and cannot lawf ully possess a we apon . On appeal, th e s ta te co nc ed es th e g un s w er e u nl aw fu ll y se iz ed an d H ar ol d G ar re ts on an d T on ya Garretsonestablish

ed prope r owner ship. We re

verse the judgment of the trial court and remand for anoth er hear ing. Tenn. R. App.P. 3 Appeal as of Right ; Judgme nt of the Cir

cuit Cour

t Rever sed; Remanded
J OE G. R ILEY , J., deliver ed the opi nio n of the court, in which J AMES C URWOOD W ITT , J R ., and N ORMA M C G EE O GLE , JJ., joined. Brenda S . Bramle

tt, Shelby ville, Te nnessee , for the

appella nts, Tony Alan Gar

retson, H arold Garretson, and Tony a Garretson. Paul G. Summers , Attorne y General and Repor

ter; Br ent C. Cher

ry , Assistan

t Attorne y General ; William Michael McCown, District Attorney Gene ral; andMichael D. Randles, Assistant District Attorney Gene

ral, for the appellee, State of Tennessee

. OPINION
Haro ld Garretson (Harold) is the father of Tony Garretson (Tony ), and Tonya Garretso n (Tonya) is th e for me r w ife o f T on y. On January 3, 2001, Tony was arrested for offenses c ommitted agains tTonya, and law

enforcement

authorities seized numerous guns at the residence. Tony was ul ti ma te ly c on vi ct ed of

ag gr av at ed as sa ul t. Su bs eq ue nt ly, To ny, Ha ro ld , a nd To nya sought return of th e g un s p ur su an t t o T en ne ss ee Ru le of Cr im in al Pr oc ed ur e 4 1( f) , a ll eg in g H ar ol d a nd To nya were the lawful owners of the g uns which

were un lawfully seized. Tony d

isclaime d any

ownersh ip interest in the gu ns. The trial court found that Harold and Tony a had not met their burden of proof-2-

in establish

ing owne rship of th

e guns, and th e gu ns could not be returned to Tony as a convicted felon. FACTS The record

in this cas e is scan

t. Howeve

r, it d oes app ear that the guns in question, along withother g

uns, were originally

seized from Tony’s re sidence by law enforcement prior to Februar y 2000, when law enforcement investigated a domestic dispute. There is no i ndicat ion Tony was convictedof an off

ense. The guns w ere re

turned to Harold, the appare

nt owner , who res ided in West Virginia and was a gun collector. It is not entirely clea

r from the record whether the g uns were returned to Harold by virtue of a

court order, voluntarily

by law en fo rc em en t, or by T on y; however, the state mentioned in its openin g state ment that it was “op

posed to g oing thr

ough the process again.” According to Harold’s testimony, his West Virginia home w as burglarized and vandalized in February

2000. Numerous guns were taken; however, he had twenty-six guns in a g un safe which were not taken. Most, if not all, of these twenty- six guns were the same guns tha t were or iginally seized and returned to Harol d. He stated he brought these guns ba ck to Tony’s re sidence for safekeepingaf

te r t he bu rg la ry. 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 on e mont h prio r to th e inst ant he aring, which was conducted in April 2002. He had a list of hi s various g

uns, which include d both shotg uns and rifles; however, his descriptions were somewhat disjointed and were not compared to a list of the guns ac tually confiscated. Tony testifie d that most

of the confiscated guns belonged to Harold and that the other guns belonged to Tonya, who was a

hunter andshooter. He described five guns belonging to Tonya. He conceded he hadnot told his father about the January 2001 ar rest and seizure until shortly prior to the in stant hearin g. To nya testified she owned five of the confiscated g uns, and her descri ptions gene rally 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 conf iscatio n and were never returned. She w as aware the other guns belong ed to Harold.
To nya testified tha t Tony ’s arre st on Januar y 3, 2001, did not involve any guns. Th

e state concedes on appeal that this aggravated assault, for which Tony was eventually c onvicted, 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 Har old and Tonya had not met their burden of proof establish ing rig htful owne

rship of th

e guns.-3-

Forfeitures ar e n ot fa vo re d b y th e l aw , a nd fo rf ei tu re st at ut es ar e t o b e s tr ic tl y c o nstrued. Ha ys v. Montague , 860 S.W.2d 403, 406 (Tenn. Ct. App. 1993). Before a confisca tion statute may be used to deprive a person of his or her prope

rty , the facts must fall within the spirit and letter of the confiscation statut e. Red d v. Tenne ssee De pt. of Saf ety , 895 S.W.2d 332, 335 (Tenn. 1995). If property is unlawf

ully seized, the agg

rieved person may

seek its return pursuant to Rule 41(f) of the Tennessee Rules of Criminal Procedure.
Our statute provides that a weapon “ usedor sold in violation of the law shall be confiscated

. . . and de clared

to be contraband . . . .” Tenn. Code Ann. § 39-17-1317(a) (emphasis added) . The state correctly

concedes unlawfulconfiscation as there was no showing that the g uns were used in the commission of the offense. Our law fur th er provides that “[a]ny wea pon 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). Alth ough o wnership of the weapons presents a closer que stion which in many respect s depends upo n the credibi lity of the witnesses, we a ccept the state’s concession that the evidence preponderates against the finding s of the trial court at least as to some of the guns. Although the record is not entirely

clear, it appea

rs that mos t of these

guns ha d previou sly

been de termined to belong to Harold. However, we conclude a furthe r hearing is required. Although both Ha rold and To nya gave descriptions of the various guns, the record is devoid of the actual list of the confiscated guns held by law enf

orcement. Thus, we are in no position to order the return of all

the guns seized without knowing which guns were actua lly seized. Upon remand, and in the event the parties are una ble to amicably re solve the issue of ownership, a list and description o f the c onfisca ted gun s shall be

admitted into evide

nce. Ha rold andTony a will the

n have the

opportuni

ty to establis h their owner ship rights as to these guns in a detailedan d o rd er ly f as hi on . T he tr ia l c ou rt ma y then dete rmin e whether ownership has been properly e stablished as to each gun.

Accord ingly, we r everse and rem and fo r anot her hea ring.

JOE G. RILEY, JUDGE