735 IN US CURRENCY v. State

205 S.W.3d 816, 90 Ark. App. 358
CourtCourt of Appeals of Arkansas
DecidedMarch 23, 2005
DocketCA 04-812
StatusPublished
Cited by1 cases

This text of 205 S.W.3d 816 (735 IN US CURRENCY v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
735 IN US CURRENCY v. State, 205 S.W.3d 816, 90 Ark. App. 358 (Ark. Ct. App. 2005).

Opinion

Andree Layton Roaf, Judge.

Nancy Stuart appeals from an order granting the State’s petition for forfeiture of $735. For reversal Stuart argues that the trial court erred when it denied her motion for directed verdict and ordered the forfeiture of the $735 because the money was not forfeitable under Ark. Code Ann. § 5-64-505 (Supp. 2003). Specifically, Stuart argues that the money was not forfeitable because it was not found in close proximity to drugs or drug paraphernalia. We agree and reverse the trial court’s order granting the State’s forfeiture petition.

On September 4, 2003, Officer Allen Marks of the Sebastian County Sheriffs Department and DEA task force observed Stuart and her husband, Larry, at the Economy Feed Store purchasing a one-gallon container of iodine. After their purchase, Office Marks asked the feed store clerk whether she observed “anything different” about the Stuarts. The clerk responded that they had a strong chemical odor about them.

Officer Marks then followed the Stuarts down the highway and initiated a traffic stop. Stuart was the driver. After she provided her driver’s license and proof of insurance, Marks wrote her a warning citation for a broken windshield. During that time, Marks began asking Stuart questions. Stuart responded that she and her husband were returning from Home World and the lumberyard after purchasing wood and paneling for crafts. She failed to mention her recent stop at the feed store and became nervous. Marks asked whether there were drugs present in the vehicle, to which Stuart responded, “Not that I know of.” He also asked whether there were any guns or dead bodies, and Stuart said that there were none. Marks then requested consent to search Stuart’s vehicle, and she gave her consent. As Marks approached her vehicle, Stuart stated, “There’s some iodine in the truck.” After approaching the car, Marks explained to Larry and the other passenger that Stuart had given him permission to search the car. Another officer arrived at that time, and Marks requested that he stand next to the passengers of the vehicle. When Larry exited the vehicle, he dropped what Marks thought was a marijuana cigarette. 1 Marks handcuffed him.

Inside the vehicle, Marks discovered the one-gallon container of iodine behind the seat, an open bottle of whiskey and a cup of whiskey that the passenger was drinking, and three cases of beer, which the passenger offered belonged to him. When questioned about the iodine, Stuart stated that she used it for her dogs and horses. During Marks’s testimony, he stated that he had experience with methamphetamine identification; that he had attended drug identification school; that he had learned that iodine is one of the ingredients used in the manufacture of methamphetamine; and that he had learned that iodine had to be diluted for use on animals. Thus, he stated that, when Stuart said that she poured the iodine directly onto the animals, he told her that she had lied about using the iodine on her animals and asked whether she knew what methamphetamine was. Stuart replied, “Yes, crank.” A search warrant was obtained for the Stuart residence, and Stuart eventually admitted that she had purchased the iodine for “cooking crank.” Stuart also admitted that she had tubing in her house.

During a search of Stuart’s person, Marks found $735 and a receipt for the gallon of iodine. Marks could not testify for sure whether the iodine was purchased with cash, but stated that he believed it was. To be sure, though, Marks said he would have to look at the receipt. Marks also stated that Stuart told him that the money she was carrying came from a retirement or pension plan. A copy of the Tyson Foods, Inc. Retirement Plan 401 (k) Distribution Election Form appears in the addendum. The form indicates that Larry requested that $2,158.37 of his retirement funds be distributed to him in one lump sum on July 28, 2003. A copy of a check dated August 14, 2003 and written to the order of Larry Stuart from Tyson Foods, Inc. for the amount of $3,009.64 also appears in the addendum.

Following Marks’s testimony, Stuart’s counsel moved for a directed verdict, arguing that the State had failed to prove that the money was connected to any drugs that were in the vehicle. He asserted that, although the officer had found what he thought was a marijuana cigarette, the State had not presented evidence that the suspected substance was tested or that there was a usable amount. Because marijuana was the only alleged drug in the vehicle and iodine is not a drug, counsel argued, Stuart was entitled to a directed verdict. The State responded that there is a rebuttable presumption that money found in close proximity to forfeitable drug paraphernalia is also forfeitable, and the motion for directed verdict was denied. Following the presentation of all of the evidence, the trial court granted the State’s petition to forfeit the $735, and it is from that order that Stuart appeals.

Forfeiture is an in rent civil proceeding, independent of any pending criminal charge, to be decided by the preponderance of the evidence. In re Three Pieces of Property Located in Monticello, Arkansas, 81 Ark. App. 235, 100 S.W.3d 76 (2003). Because the forfeiture statute is penal in nature and forfeitures are not favorites of the law, we construe the statute narrowly. Davidson v. State, 38 Ark. App. 137, 831 S.W.2d 160 (1992). This court will set aside a trial court’s findings only if they are clearly erroneous, and due regard is given to the trial court’s opportunity to judge the credibility of the witnesses. In re Three Pieces of Property, supra. A finding is clearly erroneous when, although there is evidence to support it, the appellate court is left, upon viewing the entire evidence, with the definite and firm conviction that a mistake has been made. Id.

Arkansas Code Annotated section 5-64-505 provides in pertinent part:

(a) The following are subject to forfeiture upon the initiation of a civil proceeding filed by the prosecuting attorney . . .
(6) Everything of value furnished or intended to be furnished in exchange for a controlled substance or counterfeit substance in violation of this chapter, all proceeds and profits traceable to such an exchange, and all moneys, negotiable instruments, and securities used, or intended to be used, to facilitate any violation of this chapter; except that no property shall be forfeited under this paragraph, to the extent of the interest of an owner by reason of any act or omission established by him, by a preponderance of the evidence, to have been committed or omitted without his knowledge or consent.
Rebuttable presumptions. All moneys, coin, and currency found in close proximity to forfeitable controlled substances, to counterfeit substances, to forfeitable drug manufacturing or distributing paraphernalia, or to forfeitable records of the importation, manufacture, or distribution of controlled substances or counterfeit substances are presumed to be forfeitable under this paragraph. The burden of proof is upon claimants of the property to rebut these presumptions by a preponderance of the evidence.

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Related

$735 in U.S. Currency v. State
222 S.W.3d 209 (Supreme Court of Arkansas, 2006)

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205 S.W.3d 816, 90 Ark. App. 358, Counsel Stack Legal Research, https://law.counselstack.com/opinion/735-in-us-currency-v-state-arkctapp-2005.