Hitchcock v. State

106 So. 3d 896, 2012 Ala. Civ. App. LEXIS 267, 2012 WL 4465565
CourtCourt of Civil Appeals of Alabama
DecidedSeptember 28, 2012
Docket2110689
StatusPublished

This text of 106 So. 3d 896 (Hitchcock v. State) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hitchcock v. State, 106 So. 3d 896, 2012 Ala. Civ. App. LEXIS 267, 2012 WL 4465565 (Ala. Ct. App. 2012).

Opinion

MOORE, Judge.

Harry Hitchcock appeals from a judgment of the Madison Circuit Court (“the trial court”) ordering the forfeiture of Hitchcock’s 2010 Chevrolet Camaro automobile. We affirm.

Background

On March 30, 2010, Hitchcock was arrested for possession of marijuana and for driving under the influence (“DUI”); the marijuana was found in the 2010 Chevrolet Camaro in which Hitchcock was sitting at the time of his arrest. On April 7, 2010, the State of Alabama initiated forfeiture proceedings, pursuant to Ala.Code 1975, § 20-2-93, against the Chevrolet Camaro. Hitchcock answered the complaint, admitting that he was the owner of the Camaro but denying that it was subject to forfeiture.

On April 18, 2011, Hitchcock entered a guilty plea to possession of marijuana in the second degree, a Class A misdemean- or. He was sentenced to serve one year in jail, but that sentence was suspended, conditioned on his successfully completing two years’ supervised probation and paying certain assessed fines. The DUI charge was nolle prossed by the State.

On March 9, 2012, Hitchcock, through legal counsel, moved for a judgment as a matter of law in the forfeiture action. On March 12, 2012, the trial court conducted an ore tenus hearing on the State’s forfeiture complaint, and, on March 14, 2012, the trial court entered a judgment ordering the forfeiture of the Camaro. The trial court specifically found that Hitchcock had used the Camaro to transport controlled substances and that the forfei[898]*898ture of the Camaro was reasonable and was not excessive in light of the offense charged and the amount and packaging of the drugs found in the vehicle. Hitchcock timely appealed that judgment.

Evidentiary Background

The evidence presented at the March 12, 2012, trial established the following. Officer Tanner Wilkerson testified that, on March 30, 2010, he received a report that a person was sitting in a Camaro smoking marijuana at the “skate park.” Wilkerson testified that he proceeded to the skate park and found Hitchcock sitting in a 2010 Camaro automobile. According to Wilkerson, he approached Hitchcock, who stated that he had just arrived in town from Florida to visit a friend; Wilkerson testified that Hitchcock could not or would not identify the friend or where the friend lived. Wilkerson testified that, while talking with Hitchcock, he smelled what he believed to be marijuana and alcohol. According to Wilkerson, Hitchcock admitted that he had consumed a “rum and Coke” and that he had smoked marijuana before Wilkerson arrived on the scene.

Wilkerson testified that, after conducting a field-sobriety test, he searched the Camaro and found a hand-rolled cigarette containing what he believed to be marijuana. Wilkerson testified that his backup officer had located additional marijuana in the Camaro. Wilkerson stated that he had also found a cup containing the remains of a rum and Coke mixed drink in the Cama-ro. Wilkerson testified that Hitchcock had been arrested and charged with possession of marijuana and DUI.

Investigator Ted Thiele testified that, on March 30, 2010, he had accompanied Officer Wilkerson to the skate park. Thiele testified that he had found a blue and white cooler in the trunk of the Camaro and that, inside the cooler, he had found a large, clear “Ziploek” bag. Thiele testified that, inside the Ziploek bag, he found four separate bags of a green, leafy substance that he believed to be marijuana. According to Thiele, subsequent toxicology testing confirmed that the substance was, in fact, marijuana weighing approximately two ounces. According to Thiele, after Hitchcock was arrested, the Camaro was towed to the police station.

Nathan Beard testified that he is employed as an investigator by the Madison Police Department and that, on March 30, 2010, he also went to the skate park to assist in the search of the Camaro. Beard testified that he had examined the marijuana that was found in the Camaro and had observed that it was individually wrapped, which, Beard testified, was “typical of a ‘for sale’ product”; he admitted, however, that the marijuana could also have been for personal use and simply packaged that way. Beard testified that Hitchcock had no luggage or personal items with him in the Camaro, which would be expected if Hitchcock was in Madison County on a personal visit from Florida, and that the Camaro showed no insects or dirt or other indications that it recently had traveled any distance from out of state.

Beard testified that the value of the marijuana seized from the Camaro depended on whether it was broken down by grams or ounces. According to Beard, if it was broken down into ounces, it would be worth $100 per ounce, but if it was broken down into grams, it would be worth approximately $20 per gram. According to Beard, 28 grams equals 1 ounce. Beard testified that the toxicology report indicated that the marijuana seized from the [899]*899Camaro weighed approximately 26 grams.1 Beard testified that he had worked as a narcotics officer for approximately two years.

The State rested its case, and Hitchcock moved for a judgment as a matter of law, asserting that the State had failed to establish that he was the owner of the Cama-ro; that the seizure of the Camaro violated Ex parte Kelley, 766 So.2d 8S7 (Ala.1999); that the State had failed to timely prosecute its forfeiture case; and that, because the Alabama statutes had improperly classified marijuana as a Schedule I controlled substance, the seizure violated his constitutional rights. The trial court denied Hitchcock’s motion.

Hitchcock then testified on his own behalf. He testified that he is a retired Alabama and Florida high-school teacher. He stated that he lives in Florida but that, on March 30, 2010, he had driven to Madison County to visit a friend. Hitchcock admitted that he had purchased the marijuana in Madison County on that date, but he also claimed that it was “like a medicine” to him because it helped him deal with pain caused by peripheral neuropathy in his feet. Hitchcock testified that the marijuana in his possession had been for his personal use. He explained that the marijuana had been bagged separately because he had three or four varieties of marijuana, which he identified as “Tangerine Dream,” “Pineapple Chunk,” “Northern Lights,” and a possible fourth variety that he could not recall.

Hitchcock denied purchasing the Cama-ro with funds from the sale of marijuana or other controlled substances; he testified that he had purchased the Camaro using money he had received from a trust established by his mother. He offered into evidence sworn affidavits from the trustee of a revocable living trust that had been established by Hitchcock’s mother; according to the affidavits, Hitchcock was a beneficiary of that trust and had received funds from it.2 Hitchcock introduced into evidence documents establishing that the Camaro had been new when he purchased it in November 2009 for a total of $32,129. The State stipulated that the value of the Camaro was as shown in those documents.

Analysis

Hitchcock first argues that the judgment must be reversed because the State failed to establish that he owned the Camaro. Hitchcock, however, admitted in his answer to the forfeiture complaint that he was the owner of the Camaro. Thus, to the extent the State was required to establish the legal owner of the Camaro, Hitchcock had stipulated to that fact and did not dispute that fact at trial.

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Bluebook (online)
106 So. 3d 896, 2012 Ala. Civ. App. LEXIS 267, 2012 WL 4465565, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hitchcock-v-state-alacivapp-2012.