State v. Real Property at 633 East 640 North, Orem

942 P.2d 925, 322 Utah Adv. Rep. 18, 1997 Utah LEXIS 61, 1997 WL 408065

Opinions

ZIMMERMAN, Chief Justice:

Claimant Linda Cannon appeals from a trial court order forfeiting her interest in real property located at 633 East 640 North in Orem, Utah. The trial court ordered forfeiture of the property under the Utah Controlled Substances Act, section 58-37-13 of the Utah Code,' because officers of the Utah County Sheriffs Department seized a one-pound brick of marijuana during a warranted search of the property. Cannon claims that the property was not properly subject to forfeiture because the State failed to offer any evidence to meet several of the statutory elements that must be met before forfeiture is appropriate. Cannon also claims that the trial court erred when it allowed the State to present evidence of subsequent searches at the residence during which officers seized more narcotics. Last, Cannon claims that the trial court failed to enter findings of fact or conclusions of law regarding the constitutional challenges she made to the forfeiture statute. We affirm in part and reverse and remand with instructions to the trial court to enter findings of fact and conclusions of law regarding Cannon’s constitutional claims.

We begin by reviewing the facts. On January 15, 1993, Utah County Narcotics Task Force officers conducted a warranted search at a residence located at 633 East 640 North in the city of Orem. During the search, officers seized approximately one pound of marijuana, some cocaine, and several sets of scales. Officers also seized bills with serial numbers that matched the previously recorded serial numbers of money used to make three controlled buys. The controlled buys were, in part, the basis for obtaining the search warrant executed on January 15th. The officers also seized marijuana ashes, stems, residue, and paraphernalia, including a roach clip, a pipe, several partially smoked marijuana cigarettes, and some rolling papers.

As a result of these seizures, the Utah County Attorney filed a verified complaint on July 21, 1993, requesting forfeiture of the property pursuant to the Utah Controlled Substances Act, section 58-37-13 of the Code. On September 8, 1993, officers searched the residence again and seized approximately one-quarter of a pound of marijuana as well as another set of scales. Again, on June 24, 1994, officers searched the residence and once again seized marijuana, cocaine, and methamphetamine, as well as another set of scales. After a bench trial, the court entered its memorandum decision and findings of fact, order, and satisfaction of judgment, granting all right, title, and interest in the property to the State. Following various post-trial motions and hearings, the court’s order became final on September 22, 1995, and Cannon appealed to this court.

The first issue is the sufficiency of the State’s proof of some of the statutory elements necessary to warrant forfeiture of property under the Controlled Substances Act. Cannon claims that the State failed to offer evidence to prove (i) that the street value of the drugs seized exceeded $1,000; (ii) the precise property description of the real estate sought to be forfeited; (iii) the identity of the property owner and his or her knowledge of or consent to the illegal activity at the property; and (iv) the nexus between the property and the narcotics. See Utah Code Ann. § 58-37-13; see also State v. A House & 1.37 Acres of Real Property Located, at 392 S. 600 E., Nephi, Utah, 886 P.2d 534 (Utah 1994). We address each element in order.

As to the first element, the so-called “street value” of the narcotics, section 58-37-13 of the Code provides various categories of forfeitable property, among them real property used as a “housing, warehousing, or storage facility” for controlled substances. Utah Code Ann. § 58-37-13(l)(i)(iii).¹ The statute also fixes conditions that must be met for any such forfeiture. One such condition is that the “street value of any controlled substances found on the premises at any given time [must] total[ ] or exceed[ ] $1,000.” Id. Cannon argues that the State failed to prove that the street value of the marijuana seized from the property on January 15, 1993, totaled or exceeded $1,000. The trial court specifically found that “the evidence presented showed that the street value of the controlled substances ‘warehoused’ was in excess of the $1,000.00 threshold.”

Because this is a finding of fact, we overturn the trial court’s finding only if it is “not adequately supported by the record, resolving all disputes in the evidence in a light most favorable to the trial court’s determination.” State v. Pena, 869 P.2d 932, 935-36 (Utah 1994) (citing Wessel v. Erickson Landscaping Co., 711 P.2d 250, 252 (Utah 1985)). We conclude that the evidence in this case adequately supports the trial court’s finding. Officer Lee R. Fox of the Utah County Sheriffs Department testified that the street value of a gram of marijuana was ten dollars and that the 453.6 grams of marijuana found at the residence would be worth approximately $4,536. Although Cannon points to evidence in the record that a bulk one-pound brick of marijuana could be bought for $800 to $900, this is simply an attempt to reargue the evidence presented to the trial court. Clearly, Officer Fox’s testimony is sufficient to support the trial court’s finding.

Cannon next argues that the State failed to introduce evidence as to the precise description of the property. While the statute is silent as to how property sought to be seized must be described, Cannon contends that the description must be a proper legal description, either as metes and bounds or by plat map. Here, the State described the real property only by its street address. The verified complaint identifies the property subject to forfeiture as “Residence located at 633 East 640 North, Orem, Utah.” We find ample case law to support the State’s position that, in the ordinary case, the street address of a residential property is an adequate description of that property for forfeiture purposes. In Park West Village, Inc. v. Avise, this court held that a metes and bounds description was not necessary in an option contract where the street address raised “no serious question ... at trial as to the boundaries of the [property].” 714 P.2d 1137, 1141 (Utah 1986). We have held similarly in several other cases. See Hackford v. Snow, 657 P.2d 1271, 1276 (Utah 1982) (description of property by name “Hackford Farm” in lease/option contract was sufficient to justify specific performance); Reed v. Alvey, 610 P.2d 1374, 1377 (Utah 1980) (description of property as “corner of Hillview and Ninth East” along with extrinsic evidence was sufficient to justify specific performance of realty sale contract). In this case, as in those, no serious question was raised at trial as to the description of the property, and Cannon points to no ambiguity of reference in the description. We see no reason to impose a special requirement in forfeiture cases that does not apply in other situations where the street address unambiguously points out the subject property. The description of the property in this case was sufficient to meet the statutory requirements.

Cannon next claims that the State did not prove in its case-in-ehief (i) the existence of any interest in real property to be forfeited, i.e., the State did not introduce any evidence of the title status of the property; and (ii) that Cannon knew of or consented to the illicit use of the property or that there was any nexus between the property and the illicit use. Cannon contends that these are essential elements of a forfeiture case under the statute and that they must be proven by the State to make a prima facie case for forfeiture.

The procedural history of the trial proceedings is relevant to this claim. At the close of the State’s case-in-chief, Cannon moved for a directed verdict based on this asserted failure of proof. The trial court took the motion under advisement and allowed Cannon to present her case-in-defense. In laying a foundation for her constitutional claims, Cannon put on evidence of her conviction on drug charges arising out of the January 15, 1993, warranted search that provided the basis for the forfeiture action. Cannon also presented evidence of her ownership of the property in question and testified that she knew of the presence of the marijuana that was seized on January 15th. Cannon further testified that she knew of prior drug sales by a resident of the house. In other words, Cannon put in proof of her interest in the property, her knowledge of or consent to the property’s illicit use, and the nexus between the property and the drug activity, all the points she claims were lacking in the State’s case-in-chief.

Cannon argues that, upon a motion for a directed verdict at the close of the State’s ease, the court had a duty to rule on that motion in light of the evidence the State had offered and the statutory elements on which it bore the burden of proof. By implication, she asks this court to ignore the evidence that she introduced in her defense after the trial court took her motion for a directed verdict under advisement. This argument, however, ignores the settled law of directed verdicts. “A motion for a directed verdict is a method of testing the legal sufficiency of the evidence_” See 75A Am.Jur.2d Trial § 907 (1991). A defendant may move for a directed verdict at the close of the plaintiff’s case, asserting that the plaintiff has produced no evidence on a necessary element of the plaintiffs case as to which the plaintiff bears the burden of proof. Id. § 943. Upon receiving a motion for a directed verdict at the close of the plaintiffs case, however, the trial court has the discretion to reserve its ruling until it has heard the defendant’s evidence. Id. § 952. The defendant making the motion for directed verdict does not thereby waive her right to produce evidence tending to prove her case, but she does run the risk of producing evidence tending to prove elements of the plaintiffs case that may not have been proven at the time the motion for directed verdict was made. Id. § 961. This is precisely what happened in the instant ease. Therefore, we need not decide here whether the State must prove knowledge of or consent by the owner as contended for by Cannon, since she supplied evidence of her knowledge and consent.

Cannon’s next claim is that the trial court erred when it allowed the State to present evidence of the two subsequent searches and resulting seizures of controlled substances. Cannon bases her claim on the fact that property is not subject to forfeiture under the “warehousing” provision unless the street value of controlled substances “found on the premises at any given time totals or exceeds $1,000.” Utah Code Ann. § 58-37-13(l)(i)(iii) (emphasis added). Because the State’s forfeiture action must be based only on the January 15, 1993, seizure, Cannon argues that it was error under Utah Rules of Evidence 401, 402, and 403 for the trial court to allow the State to present evidence of the subsequent searches and seizures. She claims that the evidence’s probative value was substantially outweighed by the danger of unfair prejudice. We reject both claims.

Trial courts have wide latitude in making determinations of relevance, proba-tiveness, and prejudice under rules 401 and 403. See Pena, 869 P.2d at 938; see also Harline v. Barker, 912 P.2d 433, 441 (Utah 1996) (probativeness and prejudice). We begin with Cannon’s claim that the evidence of additional seizures was not relevant. Rule 401 defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Utah R. Evid. 401. Evidence of subsequent seizures of controlled substances at the property is relevant to the question of whether the property was used to “warehouse” controlled substances. At trial, one of Cannon’s main claims was that the one-pound brick of marijuana could have been intended solely for the personal use of the residents of the house and thus was not “warehoused” on the property. Evidence of subsequent seizures was therefore relevant to meet the statutory requirement that the drugs be “warehoused” on the property before it is subject to forfeiture. Utah Code Ann. § 58 — 37—13(1) (i)(iii). Therefore, the trial court did not abuse its discretion in finding the evidence relevant.

Moving on to Cannon’s claims that the evidence should have been excluded under rule 403 as substantially more prejudicial than probative, we note the deferential standard of review:

“In reviewing a trial court’s ruling on the admissibility of evidence under rule 403, we will not overturn the court’s determination unless it was an ‘abuse of discretion.’ ” State v. Hamilton, 827 P.2d 232, 239 (Utah 1992). Thus, we must decide “whether, as a matter of law, the trial court’s decision that ‘the unfairly prejudicial potential of the evidence outweighs [or does not outweigh] its probativeness’ was beyond the limits of reasonability.” Id. at 239-40 (alteration in original) (quoting State v. Ramirez, 817 P.2d 774, 781-82 n. 3 (Utah 1991)).

Harline, 912 P.2d at 441. In this case, the trial court essentially ruled that the proba-tiveness of the State’s evidence of subsequent searches and seizures of controlled substances at the subject property was not substantially outweighed by any danger of unfair prejudice. We find the trial court’s ruling not to have been “beyond the limits of rea-sonability.” Id.

The State offered the evidence of subsequent seizures to prove that the property’ was being used to warehouse controlled substances. When weighing the probativeness of the evidence against the possible prejudice, we must take into consideration the fact that the trial was to the bench, not to a jury. The evil that rule 403 is intended to combat, unfair prejudice, is primarily of concern during a jury .trial. Rule 403 provides, “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of ... misleading the jury_” Utah R. Evid. 403. As we noted in State v. Featherson:

[T]he judge in a bench trial, ... acting as a trier of fact, is presumably less likely than a jury to be prejudiced by evidence of prior crimes, wrongs, or acts_ “[B]e-eause it can be safely assumed that the trial court will be somewhat more discriminating in appraising both the competency and the effect properly to be given evidence, the rulings on evidence are looked upon with a greater degree of indulgence when the trial is to the court than when it is to the jury.”

781 P.2d 424, 431 (Utah 1989) (quoting State v. Park, 17 Utah 2d 90, 404 P.2d 677, 679 (1965)); see also State v. Rimmasch, 775 P.2d 388, 407 (Utah 1989). Given that this was a bench trial, the trial court was not unreasonable in finding that the danger of unfair prejudice to Cannon from allowing the judge to consider evidence of subsequent searches and seizures of controlled substances at the property was not substantially outweighed by the probativeness of that evidence. Absent an abuse of discretion, we find no reason to disturb the trial judge’s ruling admitting the evidence.

Cannon’s last claim on this appeal is that the trial court failed to make findings of fact or conclusions of law respecting two constitutional challenges she raised. These were claims of double jeopardy and an excessive fine. These issues were both raised repeatedly in Cannon’s answer to the verified complaint, by Cannon’s presenting evidence at trial, in Cannon’s post-trial memorandum, and again in her objections to the findings and motion for new trial. Further, after the trial, Cannon specifically brought the court’s attention to the need for it to make written findings of fact and conclusions of law on these issues. Despite all these efforts to obtain a ruling, the trial court failed to make any findings as to the proportionality of the forfeiture to the severity of the offense or to state any conclusions of law as to the issues of double jeopardy or excessive fines. In Butler, Crockett & Walsh Development Corp. v. Pinecrest Pipeline Operating Co., we noted that trial courts may not decline to rule on issues properly presented for decision:

“Failure of the trial court to make findings on all material issues is reversible error unless the facts in the record are ‘clear, uncontroverted, and capable of supporting only a finding in favor of the judgment.’ The findings of fact must show that the court’s judgment or decree ‘follows logically from, and is supported by, the evidence.’ The findings ‘should be sufficiently detailed and include enough subsidiary facts to disclose the steps by which the ultimate conclusion on each factual issue was reached.’ ”

909 P.2d 225, 231 (Utah 1995) (quoting Acton v. J.B. Deliran, 737 P.2d 996, 999 (Utah 1987) (citations omitted)); see also Fernandez v. Utah Transit Auth., No. 960520 (Utah Sup.Ct. Order of Jan. 8, 1997) (“The trial court does not have the discretion to decline to decide a legal question properly presented to it.”). Because of the trial court’s failure to rule on these issues, we are faced with addressing those issues without the necessary factual findings and without the factual context crucial to such constitutional determinations. Therefore, we remand the ease to the trial court on these issues to make the necessary findings and conclusions.

We affirm the trial court’s rulings on the motion for a directed verdict and admission of evidence of subsequent searches and seizures. We remand the ease for entry of findings and conclusions as to the eonstitu-tional issues Cannon raised below, which were not addressed by the trial court.

HOWE, DURHAM and RUSSON, JJ., concur. Having disqualified himself, STEWART, Associate C. J., does not participate herein; A. LYNN PAYNE, District Judge, sat.

Footnotes

1

. This section was amended in 1996, but the portions referred to in this opinion were simply renumbered by that amendment. See ch. 294, 1996 Utah Laws 1482-88 (codified as amending Utah Code Ann. § 58-37-13) (effective April 29, 1996). Subsequent references in this opinion are to the statute as it was numbered prior to the 1996 amendment.