Michael Washington v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

MICHAEL WASHINGTON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR04-693

March 23, 2005

APPEAL FROM THE PHILLIPS COUNTY CIRCUIT COURT

[NO. CV-2003-381]

HON. HARVEY YATES,

JUDGE

AFFIRMED IN PART and REVERSED IN PART

Robert J. Gladwin, Judge

Appellant Michael Washington appeals from a forfeiture proceeding, arguing that the State failed to prove by a preponderance of the evidence that the money, vehicles, tires, and rims recovered from his place of business were subject to forfeiture pursuant to Ark. Code Ann. §5-64-505. We affirm in part and reverse in part.

On October 3, 2003, law enforcement officers executed a search warrant on Mike's Pool Hall, which was owned and operated by appellant. The warrant was based on a previous undercover purchase of drugs from appellant at that location. As the officers arrived, appellant was with several patrons just outside the front door of the establishment. When they noticed the arrival of the officers, the patrons began running and allegedly threw things from their pockets. Appellant was arrested just inside the door, and $1,876 was recovered from his person. Various plastic bags containing cocaine and marijuana, as well as various items of drug paraphernalia, were seized during a search of the pool hall and the surrounding premises. A search of several vehicles parked in front of the pool hall resulted

in the discovery of several additional plastic bags containing marijuana located in the bed of a 1992 Chevrolet truck. That truck, along with four tires and rims located in the back of the truck, and a 1979 Pontiac Bonneville were also seized pursuant to the search.

The State filed a civil complaint for forfeiture of the above-described items against appellant, alleging that the two vehicles, tires and rims, and the $1,876 in cash were used for the transport and sale of narcotics and/or were the proceeds from the illegal sale of narcotics and were therefore forfeitable pursuant to Ark. Code Ann. § 5-64-505. Subsequent to a hearing on the matter, the circuit court found that the State had met its burden of proof and entered a judgment forfeiting the items on March 15, 2004. From that judgment comes this appeal.

A forfeiture is an in rem civil proceeding, independent of the criminal charge and is to be decided by a preponderance of the evidence. Burnett v. State, 51 Ark. App. 144, 912 S.W.2d 441 (1995). Because the forfeiture statute is penal in nature and because forfeitures are not favored under the law, the forfeiture statute is to be narrowly interpreted. Id. This court will set aside the trial judge's findings only if they are clearly erroneous and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. See Ark. R. Civ. P. 52(a); In Re: One 1994 Chevrolet Camaro, 343 Ark. 751, 37 S.W.3d 613 (2001); In Re: Three Pieces of Property Located in Monticello, Arkansas, 81 Ark. App. 235, 100 S.W.3d 76 (2003).

Arkansas Code Annotated section 5-64-505 is part of the Uniform Controlled Substances Act and sets forth the property that is subject to forfeiture under the act along with the procedures to be followed. The relevant parts of sections 5-64-505(a)(4) and (6) provide:

(a) ITEMS SUBJECT TO FORFEITURE. The following are subject to forfeiture upon the initiation of a civil proceeding filed by the prosecuting attorney and when so ordered by the circuit court in accordance with this section ....

(4) All conveyances, including aircraft, vehicles, which are used, or intended for use, to transport, or in any manner to facilitate the transportation, for the purpose of sale or receipt of property described in subdivision (a)(1) or (2) of this section ....

(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 ....

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 . . . 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.

I. The $1,876 Cash

Appellant argues that the State did not meet its burden with respect to the $1,876 in cash that was seized from his pocket. It is undisputed that appellant was in possession of the money and that it was found in close proximity to forfeitable controlled substances and drug paraphernalia. The location of the money gave rise to a rebuttable presumption that it was forfeitable under section 5-64-505(a)(6). Appellant was then required to rebut that presumption by a preponderance of the evidence. He maintains that he met that burden by presenting evidence regarding his three sources of regular income: (1) Thompson's Cingular Wireless, from which he presented a check stub and explained that the business cashed his checks because he could not open a bank account; (2) Mike's Pool Hall, of which he was the owner and operator; (3) Burger World, which is a separate eating establishment he owned around the corner from the pool hall, from which he received cash and checks from patrons. Appellant contends that this evidence clearly rebutted the presumption that the money constituted proceeds from the illegal sale of drugs.

The State maintains that appellant failed to rebut the presumption. Appellant did present a pay stub from Thompson's in the amount of $304, which he claimed was smaller than his average check of $600 or $700. The rest of the money was allegedly derived from the operation of either Burger World or the pool hall, which did not charge any entrance fee and appeared to generate income solely from the sale of chips, sodas, and candy, and possibly video-game or pool-table fees. Appellant testified that he did, on occasion, receive tips from patrons at Burger World in the amount of two or three dollars; however, there were no single dollar bills seized as part of the search. Appellant also claimed that he carried large amounts of cash because he was unable to open a bank account. The State contends that this was not sufficient evidence to rebut the presumption that the cash was connected somehow to the controlled substances discovered in close proximity to appellant and the cash. Considering that we give deference to the trial court's ability to weigh the credibility of the witnesses, the rebuttal evidence presented by appellant does not leave us with a firm and definite conviction that the trial court was clearly erroneous in ordering the forfeiture of the cash. See In Re: Three Pieces of Property Located in Monticello, Arkansas, supra. We affirm with respect to the $1,876 in cash.

II. 1992 Chevrolet Truck, 1979 Pontiac Bonneville, Four Tires, And Rims

Under Ark. Code Ann. § 5-64-505(a)(4), the State bears the burden of proving by a preponderance of the evidence that the vehicles were used to transport illegal drugs for the sale or receipt of controlled substances. See State v. One 1993 Toyota Camry, 333 Ark. 503, 969 S.W.2d 663 (1998). Appellant asserts that the State failed to meet its initial burden of proof, and that in fact, the record is completely void of any testimony to indicate that the vehicles were used in such a manner. Officer Charles Norman admitted that he had no knowledge that the vehicles in question had either been used for the purpose of transporting drugs or were purchased with proceeds or profits from a drug exchange. The trial judge made no specific finding with regard to this issue.

The search warrant that was executed at the pool hall made no assertion that the vehicles were being used to transport controlled substances or that they were purchased with proceeds or profits from a drug exchange. The testimony revealed that the search warrant was issued to search and seize all evidence at "Mike's Pool Hall." The two vehicles in question were parked in front of the premises, and although appellant testified that he was in the process of purchasing both, neither was titled in his name at the time they were seized. While there were several plastic bags of marijuana found in the bed of the truck, there was no evidence that the truck was used for the purpose of transporting those drugs. The State's argument that the truck is forfeitable simply because several plastic bags of marijuana were found in the back of it is insufficient under the express language of the statute, which we are required to narrowly construe. Consequently, because there is insufficient evidence to prove that the truck was used for the purpose of transporting drugs or purchased with proceeds from a drug exchange, the four tires and rims that the State maintains are part of that truck should also be returned under the same theory. There is even less evidence supporting a finding that the Pontiac was subject to forfeiture because no drugs were found in that vehicle. Because the State failed to meet its burden of proof, appellant was not required to offer any evidence to show that the items in question were purchased by legitimate sources.

This is not merely a matter of the credibility of the witnesses; the State failed to present sufficient evidence to meet its burden with respect to either of the two vehicles or the tires and rims. Likewise, the State's assertion that appellant presented no evidence to indicate that items were not furnished or intended to be furnished in exchange for a controlled substance is without merit. While we have held that the lack of evidence showing that the property should not be subject to forfeiture is a matter to be weighed by the trial court pursuant to Ark. Code Ann. § 5-64-505(g)(5)(B), see In Re: Three Pieces of Property Located in Monticello, Arkansas, supra, it is still the State's burden to meet the initial burden of proof. In the instant case, they failed to do so with respect to the two vehicles, tires, and rims. We reverse with respect to these items.

Affirmed in part; reversed in part.

Griffen and Baker, JJ., agree.