$3,941 in US Currency, and, Deonta Anderson, Korjonta Anderson, and Beonica Johnson-Grant v. Rodney Cummings, Prosecuting Attorney for the 50th Judicial Circuit for the State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 9, 2017
• Docket: 48A02-1607-MI-1564
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this FILED Memorandum Decision shall not be regarded as Jun 09 2017, 8:44 am precedent or cited before any court except for the purpose of establishing the defense of res judicata, CLERK Indiana Supreme Court collateral estoppel, or the law of the case. Court of Appeals and Tax Court

ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEES DEONTA ANDERSON, KORJONTA Curtis T. Hill, Jr. ANDERSON, AND BEONICA Attorney General of Indiana JOHNSON-GRANT Andrea E. Rahman Steven C. Smith Deputy Attorney General Anderson, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

$3,941 in US Currency, June 9, 2017

Appellant-Defendant, Court of Appeals Case No. 48A02-1607-MI-1564 and, Appeal from the Madison Circuit Deonta Anderson, Korjonta Court. The Honorable David A. Happe, Anderson, and Beonica Johnson- Judge. Grant, Trial Court Cause No. 48C04-1509-MI-1003 Appellants-Interested Parties,

v.

Rodney Cummings, Prosecuting Attorney for the 50th Judicial Circuit for the State of Indiana, Appellees-Plaintiffs.

Friedlander, Senior Judge

Court of Appeals of Indiana | Memorandum Decision 48A02-1607-MI-1564| June 9, 2017 Page 1 of 11 1 [1] Deonta Anderson, Korjonta Anderson, and Beonica Johnson-Grant (Deonta

and Korjonta’s mother) appeal from the trial court’s judgment granting the

State’s complaint for civil forfeiture of money seized from Deonta after his

arrest. We affirm.

[2] On September 22, 2015, Iahjhay Cloyd and Deonta were at Vanity Branson’s

house where they smoked marijuana. Later that evening, Deonta and Cloyd

left Branson’s home an unknown number of times, and each time they left,

Deonta took a gun along with him. They slept at Branson’s house—Cloyd in

the living room while Deonta stayed in Branson’s room, leaving the gun on the

floor.

[3] The next morning, Deonta left the house, taking the gun with him. Officers

had received a tip regarding the possible location of a stolen police tactical bag

containing a rifle, over a hundred rounds of ammunition, a ballistic vest, a

ballistic helmet, and other tactical gear used by police. Two officers with the

Anderson City Police Department were conducting surveillance on Branson’s

home based on that tip. They observed Branson leave and return to the

apartment. As she was leaving her apartment for the second time, she was

passed by a vehicle occupied by Deonta and Cloyd. After they parked the car

and went inside the apartment, Branson parked her car and went inside.

1 Beonica participated in the trial court proceedings because she was Deonta and Korjonta’s mother and guardian, but did not technically qualify as an interested party having no personal claim to the money.

Court of Appeals of Indiana | Memorandum Decision 48A02-1607-MI-1564| June 9, 2017 Page 2 of 11 [4] About ten to fifteen minutes later, the officers knocked on the door asking if

Malachi Braxton was inside. During the nearly ten to fifteen minutes between

the time the officers started knocking on the door and when Branson finally

answered, she saw Cloyd holding a plastic bag with a white, powdery substance

inside in plain view of anyone in the house. Cloyd also asked Branson if she

would secrete the bags to hide the drugs. Branson declined and answered the

door. As she walked to the door, Cloyd was standing in the hallway with a bag

containing a clump of white powder, and Deonta was in the back room.

[5] When Branson opened the door, the officers smelled a very strong odor of burnt

marijuana coming from inside the apartment. They then began investigating

possible drug use and placed Branson in custody. Cloyd, who was agitated and

belligerent, walked toward the officers, who then placed him in custody.

During a search, officers discovered a small, black digital scale with white

powder on it in the front pocket of Cloyd’s pants. Branson told officers that

Deonta was also in the house. Because the officers were concerned there might

be a stolen rifle inside the house, they ordered Deonta to slowly crawl out of the

back room so officers could see his hands. After Deonta had done so, officers

placed him in custody.

[6] Officers obtained a warrant to search Branson’s house for the stolen rifle, drugs

or paraphernalia, or any currency that might be found. After executing the

warrant, officers found a gun tucked between the mattress and box spring of the

bed in the room where Branson and Deonta slept. Before officers said anything

about this discovery, Deonta volunteered that Branson had a handgun permit.

Court of Appeals of Indiana | Memorandum Decision 48A02-1607-MI-1564| June 9, 2017 Page 3 of 11 In a shoebox in Branson’s closet, they discovered two plastic bags with a white,

hardened rock substance in each. One bag contained one clump of the white

substance, and the second bag contained nineteen individually wrapped plastic

bags all about the same size and shape. Subsequent testing revealed that the

white substance was cocaine.

[7] When Deonta was searched, officers found cash in his front pocket. He was

transported to the police station and placed in an interview room. Another

more thorough search of Deonta led to the discovery of more cash hidden in his

underwear and stuffed inside the rolled cuff at the bottom of his sweatpants. In

sum, Deonta was carrying roughly $3,900. He was placed under arrest on three

outstanding warrants.

[8] The State filed a complaint for civil forfeiture, stating that the $3,941 seized

from Deonta was “intended for use in the course of, derived from, or realized

through” Deonta’s corrupt enterprise and pattern of racketeering activity—

dealing in cocaine. Appellants’ App. p. 7. The trial court initially granted a

default judgment against Deonta, but the judgment was later vacated once

Deonta filed a response and sought return of the seized cash. Deonta, by

counsel, filed an appearance and answer. The State filed a motion for contempt

due to a breakdown in the discovery process. Deonta appeared with counsel at

the hearing and testified so the State could obtain the outstanding discovery

responses from him. Deonta testified that the money confiscated from him

belonged to his brother, Korjonta, who had given him the money to buy a car

Court of Appeals of Indiana | Memorandum Decision 48A02-1607-MI-1564| June 9, 2017 Page 4 of 11 for him since at that time Korjonta was a minor. The trial court did not find

Deonta to be in contempt and the matter was scheduled for a bench trial.

[9] At the bench trial, Deonta, Korjonta, and Beonica each appeared. After

Korjonta entered his appearance, the trial court dismissed the default judgment

entered against him. Korjonta and Beonica testified that the cash seized from

Deonta was part of the proceeds from a settlement reached in early 2014 after

Korjonta’s automobile accident. Of his $10,000 portion of the settlement,

Korjonta claimed that he had saved $5,000, which was hidden at home, and,

just before Deonta’s arrest, had given the other $5,000 to his mother to give to

Deonta for the purchase of a car. He stated that the price of the car was $5,200.

[10] Beonica testified that she had given $3,941 of the settlement money to Deonta

just days before his arrest in late September 2015 to use to purchase a car for

Korjonta. She claimed that she had an additional $1,500 set aside for the

purchase. Her testimony on cross-examination about the family’s income and

expenditures reflected a negative cash flow. She also testified that she spent

approximately $1,000 of the settlement money on a shopping spree for Korjonta

after they received the funds.

[11] The trial court issued an order granting the State’s forfeiture complaint for

$3,941 in U.S. currency. The trial court then issued an amended order stating

that the amount of money seized and forfeited was $3,911 in U.S. currency.

Deonta, Korjonta, and Beonica filed a motion to correct error, taking issue with

the trial court’s statement that the three had been served with process at least

Court of Appeals of Indiana | Memorandum Decision 48A02-1607-MI-1564| June 9, 2017 Page 5 of 11 twenty days before the entry of final judgment. They also claimed that there

was insufficient evidence to show a link between the money seized and a

pattern of racketeering activity. The trial court denied the motion and this

appeal followed.

[12] As an initial matter, Deonta, Korjonta, and Beonica appeared at the contempt

hearing, which was converted to a discovery hearing, and at the bench trial with 2 their attorney, presenting their evidence. For the first time, in his motion to

correct error, and now again on appeal, Deonta complains of the trial court’s

finding that service of process was made more than twenty days prior to the

entry of judgment, claiming that the finding is inaccurate. When a party fails to

notify the court of such a defect, the issue is waived, especially when a party

participates in the proceeding, complaining only after an adverse result is

reached. Enderle v. Sharman, 422 N.E.2d 686 (Ind. Ct. App. 1981).

[13] Deonta, Korjonta, and Beonica challenge the sufficiency of the evidence

supporting the order, claiming that the State failed to prove that the seized

money was used as part of a pattern of racketeering activity. The State was

required to prove its case by a preponderance of the evidence. Ind. Code § 34-

24-1-4(a) (2002). On appellate review, we consider the evidence most favorable

to the judgment along with reasonable inferences, neither reweighing evidence

2 An appearance was filed for Deonta and Korjonta, named interested parties. When Beonica testified, counsel lodged objections and asserted privileges on her behalf.

Court of Appeals of Indiana | Memorandum Decision 48A02-1607-MI-1564| June 9, 2017 Page 6 of 11 nor reassessing the credibility of witnesses. $100 and a Black Cadillac v. State, 822

N.E.2d 1001 (Ind. Ct. App. 2005), trans. denied.

[14] The forfeiture statute provides that the county prosecutor of the county in

which property is located can bring a forfeiture action of any property used in

the course of, intended for use in the course of, derived from, or realized

through corrupt business influence or other misconduct. Ind. Code § 34-24-2-2

(2005). The statutory definition of corrupt business influence refers to a person

employed by or associated with an enterprise and who knowingly or

intentionally conducts or otherwise participates in the activities of that

enterprise through a pattern of racketeering activity. Ind. Code § 35-45-6-2(3) 3 (2014). Racketeering activity includes the commission of, or attempt to

commit, to conspire to commit a violation of, or aiding and abetting in a

violation of any number of crimes including dealing in or manufacturing 4 cocaine or a narcotic drug, and dealing in a schedule I, II, or III controlled 5 6 substance. Cocaine is a schedule II controlled substance. Indiana Code

section 35-45-6-1(d) defines pattern of racketeering activity as occurring when

one engages in at least two incidents of racketeering activity that have the same

or similar intent, result, accomplice, victim, or method of commission, or that

3 Ind. Code § 35-45-6-1(e)(28),(30) (2014). 4 Ind. Code § 35-48-4-1 (2014). 5 Ind. Code § 35-48-4-2 (2014). 6 Ind. Code § 35-48-2-6(b)(4) (2013).

Court of Appeals of Indiana | Memorandum Decision 48A02-1607-MI-1564| June 9, 2017 Page 7 of 11 are otherwise interrelated by distinguishing characteristics that are not isolated

incidents.

[15] The record reflects that the State proved by a preponderance of the evidence

that Deonta participated in a pattern of racketeering activity by aiding and

abetting or conspiring in dealing in cocaine or dealing in a schedule II

controlled substance. Deonta was in possession of nearly $4,000, which was in

different denominations than that described by Korjonta and Beonica. Instead

of being wrapped together and secured by a band as Korjonta testified, some of

the money was found in Deonta’s front pocket, some in his underwear, and the

rest was found in a cuff of his sweatpants.

[16] Branson, the owner of the house, testified that Deonta and Cloyd left and

returned to the house numerous times during the evening before their arrest.

Each time Deonta left, he took a gun with him. When they returned for the

final time that evening, Deonta slept in Branson’s room, leaving the gun on the

floor of the bedroom.

[17] The next morning, officers who were conducting surveillance of Branson’s

home, observed Branson come and go, and observed Deonta and Cloyd leave

and return. As they returned, they gave a hand signal to Branson, who was

about to leave the house again. The three then went inside. Fifteen minutes

after officers knocked on the door of the house, Branson answered the door.

Deonta was in the back room and Cloyd was near the front of the house.

Court of Appeals of Indiana | Memorandum Decision 48A02-1607-MI-1564| June 9, 2017 Page 8 of 11 Before opening the door, Branson observed Cloyd carrying, in plain view of

anyone in the house, a bag containing a white, rock-like substance.

[18] When officers placed Deonta in custody, they discovered some of the money.

When they placed Cloyd in custody they discovered in his front pocket a small,

black, digital scale with a white powdery substance on it. They found the

handgun between the mattress and box spring of the bed where Deonta slept.

Deonta volunteered, before officers could make a reference to the discovery,

that Branson had a permit to carry a handgun. Officers also found in Branson’s

room, hidden in a shoe box in a closet, two bags containing what was later

determined to be cocaine. One of the bags contained nineteen individually-

wrapped bags of cocaine, each about the same size and shape, while the other

contained a rock of cocaine. The amount of cocaine found, forty grams, was

indicative of the sale of cocaine, not personal use.

[19] Deonta presented his explanation of his possession of the money and attempted

to support his claim to the seized funds. Korjonta’s and Beonica’s testimony

differed in several respects, casting doubt on their claim to the money. Further,

Beonica’s testimony about her income and expenses also called into question

Deonta’s and Korjonta’s claim to the money and their contention that it was

not connected to racketeering activity. There was sufficient evidence to support

the trial court’s judgment.

[20] Next, Deonta, Korjonta, and Beonica present a brief argument that the civil

forfeiture action may violate the Excessive Fines Clause of the Eighth

Court of Appeals of Indiana | Memorandum Decision 48A02-1607-MI-1564| June 9, 2017 Page 9 of 11 Amendment. We recently discussed the Excessive Fines Clause in the context

of civil forfeiture actions in State v. Timbs, 62 N.E.3d 472 (Ind. Ct. App. 2016), a

case in which transfer was granted and oral argument was heard by the

Supreme Court. The Court’s decision is pending. Caselaw holds that review of

whether a fine or forfeiture is excessive, we must consider if the amount of the

forfeiture bears some relationship to the gravity of the offense for which it is

designed to punish. $100, 822 N.E.2d 1001 (quoting United States v. Bajakajian,

524 U. S. 321, 118 S. Ct. 2028, 141 L. Ed. 2d. 314 (1998)). A forfeiture is

punitive and violates the clause if it is grossly disproportional to the gravity of

the offense. Id.

[21] Although the constitutional issue is waived for failure to raise it first at trial, and

by failing to support it on appeal with cogent argument, we observe that dealing

in cocaine in the amount at issue here would constitute a Level 2 felony. Ind.

Code § 35-48-4-1(e) (2014). While conspiring to commit a crime is a separate

offense, requiring proof of additional elements, it is a felony of the same level as

the underlying felony. Coleman v. State, 952 N.E.2d 377 (Ind. Ct. App. 2011);

Ind. Code § 35-41-5-2 (2014). Also, one can be charged as a principal if the

evidence shows only that the defendant aided or abetted the actual perpetrator.

Coleman, 952 N.E.2d 377. The fine that could be imposed for a Level 2 felony

is set at a maximum of $10,000. Because the amount seized here falls well

short of the statutory maximum that could be imposed for the criminal activity,

we find that it is not excessive.

Court of Appeals of Indiana | Memorandum Decision 48A02-1607-MI-1564| June 9, 2017 Page 10 of 11 [22] Deonta, Korjonta, and Beonica also argue that the forfeited money should have

been deposited in the Common School fund. Indiana Code section 34-24-1-4

(d)(2)(D) provides that any excess money seized by the State over law

enforcement costs is directed to be transferred to the state treasurer for deposit

in the common school fund. The case cited as support for reversal, Serrano v.

State, 946 N.E.2d 1139 (Ind. 2011), however, observes that the trial court may

except law enforcement expenses incurred for the criminal investigation

associated with the seizure. See Ind. Code § 34-6-2-73 (1998) (law enforcement

expenses include costs of criminal investigation associated with seizure,

repayment of investigative fund of law enforcement agency making seizure, and

expenses of prosecuting attorney for proceedings associated with the seizure

and the offenses leading). We find no error in the trial court’s distribution of

the seized funds.

[23] Judgment affirmed.

Bailey, J., and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 48A02-1607-MI-1564| June 9, 2017 Page 11 of 11