Katner v. State

640 N.E.2d 388, 1994 Ind. App. LEXIS 1209, 1994 WL 487133
CourtIndiana Court of Appeals
DecidedSeptember 12, 1994
Docket49A05-9309-CV-325
StatusPublished
Cited by8 cases

This text of 640 N.E.2d 388 (Katner v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Katner v. State, 640 N.E.2d 388, 1994 Ind. App. LEXIS 1209, 1994 WL 487133 (Ind. Ct. App. 1994).

Opinions

FRIEDLANDER, Judge.

Simon Katner appeals the judgment in favor of the Indiana Department of Correction and the State of Indiana [hereinafter collectively referred to as the State] in the State’s forfeiture action to gain title of Katner’s automobile.

We reverse.

The facts most favorable to the judgment are that Katner was arrested for cocaine possession on January 31, 1992, after being stopped on suspicion of driving while intoxicated in Indianapolis. After struggling vio[389]*389lently with several police officers, Katner was subdued, handcuffed, and searched. A thin glass tube and a plastic container were found in Katner’s left front pants pocket. The container contained 0.0573 gram of cocaine.

On February 24, 1992, the Marion County Prosecutor filed a complaint for forfeiture of the Toyota automobile Katner was driving on the night of his arrest, on the basis that Katner had been using it to transport cocaine. Following a trial by court, judgment was entered in favor of the State. The Toyota was ordered forfeited for the use of the Indianapolis Police Department and for eventual sale.

Because we reverse, we need only address the following issues:1

I. Was the evidence sufficient to show that Katner possessed cocaine?
II. Was Katner’s possession and transportation of 0.0573 grams of cocaine sufficient to justify the forfeiture of his automobile?

I.

The evidence was sufficient to show that Katner possessed cocaine, and we reject his argument that he demonstrated that the items seized from his pocket had been tampered with, and that the State failed to establish a proper chain of custody over those items.

On direct examination, Indianapolis Police Officer Scott Eaton testified that “a glass tube, uh, with, uh, what kind of appeared to be like a white substance in the glass tube, and then, uh, suspected cocaine in a plastic container” was taken from Katner’s pocket. Record at 87. Eaton testified that he took the items to the property room at the police department, put them in a heat-sealed envelope, and dropped them into the narcotics drop box. On cross-examination, Eaton was challenged with deposition testimony in which he had described the container as a “baggie of some kind.” Record at 91.. Eaton acknowledged having made that statement. He further testified that after putting the items in the heat-sealed envelope, he signed the seal.

Cathy Zumer, a drug chemist with the Marion County Forensic Services Agency, testified she found “a glass tube in a plastic bottle with white powder” in the heat-sealed envelope. Record at 113. The Narcotic Examination Report filled out by Zumer at the time of the analysis indicates Simon Katner as the defendant, but Zumer testified that she had no independent knowledge of where the items came from. Katner objected to testimony concerning the chemical tests of the items Zumer analyzed on the basis that no foundation was presented to show that the items Zumer tested had any connection to the substance Eaton had taken from Katner. The court overruled Katner’s objection. In Gardner v. State (1987), Ind., 514 N.E.2d 1261, our supreme court determined that

“To establish a proper chain of custody, the State need only present evidence that strongly suggests the exact whereabouts of the evidence at all times. Where the evidence has passed through various hands, the State need not exclude all possibility of tampering, but rather must provide reasonable assurance that the evidence remained in an undisturbed condition. An argument which merely raises the possibility of tampering with the evidence is without merit.”

Id. at 1262 (citations omitted).

Despite the discrepancy over whether the glass tube was contained in a plastic container or bottle or baggie, we find the evidence sufficient to provide reasonable assurance that the evidence remained undisturbed. The testimony and documentary evidence concerning the transfer of the heat-sealed evidence envelope from Eaton to Zumer via the narcotics drop box and Zumer’s analysis of the contents of that envelope were sufficient to show the whereabouts of the evidence. Moreover, Katner has done no more than raise the possibility that the evidence had been tampered with. The trial court did not err in overruling Katner’s objection.

[390]*390II.

Katner’s possession and transportation of 0.0573 gram of cocaine was not sufficient to justify the forfeiture of Katner’s Toyota.

Forfeitures are not favored, and should be enforced “only when within both the letter and spirit of the law.” United States v. One 1976 Ford Pick-Up VIN F14YUB03797 (1985), 8th Cir., 769 F.2d 525, 527. Indiana’s forfeiture statute provides in relevant part as follows:

“(a) The following may be seized:
(1) All vehicles ... if they are used or intended for use by the person ... to transport, or in any manner to facilitate the transportation of the following:
(A) A controlled substance for the purpose of committing, attempting to commit, or conspiring to commit any of the following:
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(vi) Possession of cocaine_”

Ind.Code 34-4-30.1-1 (emphasis supplied).

This court has determined that the forfeiture statute serves to create “an economic disincentive to engage in proscribed behavior by subjecting to forfeiture those items ‘traceable’ to criminal activity.” Caudill v. State (1993), Ind.App., 613 N.E.2d 433, 437. The statute is aimed primarily at the drug trade, and it enables the State to recover law enforcement costs, with any excess being transferred to the State Treasurer for deposit into the common school fund. Id.; IC 34-4-30.1-4(d).

While our courts have determined that the presence of any identifiable amount of an illegal drug may be sufficient to support a conviction for possession of that substance, we have yet to decide whether the “mere residue” of an illegal substance will support a forfeiture. See Brown v. State (1978), 177 Ind.App. 607, 380 N.E.2d 609; Cooper v. State (1976), 171 Ind.App. 350, 357 N.E.2d 260. When construing the applicable federal statutes,2 several courts have determined that the residue of a narcotic drug is insufficient to support forfeiture. See e.g. United States v. One Gates Learjet, Serial No. 28004. (1988), 5th Cir., 861 F.2d 868 (trace of cocaine found on airplane, the amount of which was so small that its presence could only be detected by scientific procedures, was insufficient to support forfeiture); see also United States v. $38,600.00 In United States Currency (1986), 5th Cir.,

Related

Serrano v. State
946 N.E.2d 1139 (Indiana Supreme Court, 2011)
Cantrell v. Putnam County Sheriff's Department
894 N.E.2d 1081 (Indiana Court of Appeals, 2008)
Katner v. State
655 N.E.2d 345 (Indiana Supreme Court, 1995)
Katner v. State
640 N.E.2d 388 (Indiana Court of Appeals, 1994)

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640 N.E.2d 388, 1994 Ind. App. LEXIS 1209, 1994 WL 487133, Counsel Stack Legal Research, https://law.counselstack.com/opinion/katner-v-state-indctapp-1994.