State v. Eighteen Thousand Six Hundred Sixty-three Dollars and Twenty-five Cents ($18,663.25) Cash

2000 OK CIV APP 102, 11 P.3d 1253, 71 O.B.A.J. 2690, 2000 Okla. Civ. App. LEXIS 71, 2000 WL 1512853
CourtCourt of Civil Appeals of Oklahoma
DecidedApril 25, 2000
DocketNo. 93,230
StatusPublished
Cited by3 cases

This text of 2000 OK CIV APP 102 (State v. Eighteen Thousand Six Hundred Sixty-three Dollars and Twenty-five Cents ($18,663.25) Cash) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Eighteen Thousand Six Hundred Sixty-three Dollars and Twenty-five Cents ($18,663.25) Cash, 2000 OK CIV APP 102, 11 P.3d 1253, 71 O.B.A.J. 2690, 2000 Okla. Civ. App. LEXIS 71, 2000 WL 1512853 (Okla. Ct. App. 2000).

Opinion

REIF, Judge:

T1 This appeal concerns the forfeiture of cighteen thousand six hundred sixty-three dollars and twenty-five cents which was found in the pickup of Joseph Thomas Gutierrez. The money was found during the course of his arrest for speeding and possession of marijuana. Mr. Gutierres was the sole occupant of the pickup at the time. The money was in the console compartment between the driver's seat and passenger's seat in the pickup. In addition to the money, two "duffle bags" that smelled like marijuana were found in the extended cab area behind the seats. These bags were empty except for one-tenth of a gram of marijuana that was compressed into a "small chunk" and a single marijuana seed. The compressed chunk and seed were found in the same bag.

{2 The State alleged that the money was subject to forfeiture on three grounds. The first ground alleged the money was "found in close proximity to forfeitable controlled dangerous substances, to-wit: marihuana." The second ground alleged the money was "a thing of value furnished or intended to be furnished in exchange for a controlled dangerous substance, or used or intended to be used to facilitate a violation of the Uniform Controlled Dangerous Substances Act." The third ground alleged the money was "property or a thing of value acquired by the possessor during, or within a reasonable time after, a violation of the ... Act, and there being no likely source for such [money] other than a violation of the ... Act."

13 The first alleged ground is the "close proximity" ground found in 68 O.S. Supp. 1999 § 2-508(A)(7). The second alleged ground is the "exchange" or "traceable to such an exchange" ground found in 63 O.S8. [1255]*1255Supp.1999 § 2-5083(A)(6). The third alleged ground is the "acquired ... during ... violation" and "no likely [innocent] source" ground found in 63 O.S. Supp.1999 § 2-503(B).

T4 The trial court ruled that the money "was forfeitable pursuant to Title 68 Sect. 2-508(A)(7), [because it] was found in close proximity to a forfeitable controlled dangerous substance, to-wit: marihuana, as in State of Oklahoma v. Eleven Thousand Five Hundred Sixty-Six Dollars, [1996 OK CIV APP 67], 919 P.2d 34 (1996)." The court also ruled that the money "was forfeitable by Title 638 Sect. [2-1508(B), [because it] was property or a thing of value acquired by the possessor during or within a reasonable time after a violation of the Uniform Controlled Dangerous Substances Act, and that there was no likely source for [the money] other than a violation of the Uniform Controlled Dangerous Substances Act." The trial court found that these grounds were established by a preponderance of the evidence.

[ 5 In explaining the ruling concerning the 2-503(B) ground, the trial court purported to apply a presumption that the court found Mr. Gutierrez had failed to overcome. Mr. Gutierrez testified that he was carrying this large sum of money for a purpose related to his concrete business. The trial court, in effect, stated that if the large amount of money in question were "legitimate income from a business," it would leave a paper trail in and out of a business account, and that Mr. Gutierrez did not show such a paper trail.

16 In reviewing the propriety of this forfeiture, we first observe that the trial court did not predicate forfeiture on the State's second alleged ground that the money came from an exchange or was traceable to an exchange of a controlled dangerous substance under § 2-508(A)(6). Having expressly found the other grounds proven by a preponderance of the evidence, we understand the trial court to have rejected "the exchange" or "traceable to such an exchange" ground as not proven by a preponderance of the evidence. We agree that this ground was not proven by any evidence.

17 If the State did not prove that the money came from a sale or exchange of a controlled dangerous substance, what was "the violation of the Uniform Controlled Dangerous Substances Act" from which the money was supposedly "acquired" to support forfeiture under § 2-503(B)? The State did not plead a specific violation of the Act nor prove any violation of the Uniform Controlled Dangerous Substances Act to be the source of the money.1 Without such proof, forfeiture cannot lie under § 2-508(B). This is true even if the court does not believe the explanation given by the person from whom the money is taken. State ex rel. Means v. $1,854,4,50.50, 1992 OK CIV APP 56, T 6, 841 P.2d 616, 618, points out; "The burden [is] upon the State to show some nexus between the currency and a violation of the Act, not upon [a] claimant to explain how he obtained it."

18 The only remaining ground for forfeiture of the money is the "close proximity" ground under § 2-5083(A)(7). In reviewing the trial court's order of forfeiture on this ground, we find that the trial court could reasonably conclude that the money in the console compartment between the pickup seats was "in close proximity" to the duffle bag containing the one-tenth of a gram of marijuana that was behind the seat. We also can see how the trial court could reach the - conchision of law that this would support forfeiture of the money under the case of State v. Eleven Thousand Five Hundred Sixty-Six Dollars, 1996 OK CIV APP 67, 919 P.2d 34. We cannot agree, however, that the foregoing court of appeals case is completely dispositive of the challenge by Mr. Gutierrez that forfeiture cannot lie under $ 2-508(A)(7) where the possessor of the money is chargeable only with simple possession of marijuana. This challenge presents a question of [1256]*1256statutory construction and is reviewable in accordance with the analysis used by the supreme court in State v. 1985 GMC Truck, 1995 OK 75, 898 P.2d 1280.

19 State v. 1985 GMC Truck involved the forfeiture of a motor vehicle under 63 O.S. 1991 § 2-508(A)(d). The issue before the court was "whether simple possession of a controlled dangerous substance while occupying a vehicle is sufficient to trigger the forfel-ture provisions of § 2-508." Id. at ¶ 6, 898 P.2d at 1282. The court found it necessary to construe the statute to answer this question. -

"[ 10 The court applied settled rules of statutory construction to determine legislative intent and said: "This intent is ascertained from the whole act in light of its general purpose and objective." Id. at ¶ 7, 898 P.2d at 1282. The court held that it "must read the forfeiture provision in its entirety so that every part is rendered operative." Id. at ¶ 10, 898 P.2d at 1282. One of the problems with the State's interpretation of -§ 2-503(A)(4) was the isolated emphasis placed on the term "possess[ion] by an occupant." Id., 898 P.2d at 1283. The court stated that "[a] complete and reasonable construction [of that term] includes the entire statute [and] all the language of [the] subsection." Id.

111 The court noted that the language that preceded the term "possess[ion] by an occupant" addressed cultivation, concealment and transportation of controlled drugs for distribution, sale or receipt. The court concluded that "possess[ion] by an occupant" would result in forfeiture "only ... to a wehicle occupied by a person who is using it to transport, conceal or cultivate for the purpose of distribution or to facilitate the transportation or cultivation for the purpose of sale or receipt of controlled dangerous substances." Id. at ¶ 11, 898 P.2d at 1283.

{ 12 In addition, the supreme court stated that "forfeiture is penal in nature, and therefore, the 'excessive fines' clause of the Eighth Amendment to the U.S.

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Bluebook (online)
2000 OK CIV APP 102, 11 P.3d 1253, 71 O.B.A.J. 2690, 2000 Okla. Civ. App. LEXIS 71, 2000 WL 1512853, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-eighteen-thousand-six-hundred-sixty-three-dollars-and-twenty-five-oklacivapp-2000.