DIVISION II
CA06-867
February 28, 2007
JEFFREY RIDENHOUR
2004 DODGE PICKUP
VIN# 3D7KU26684G13975
APPELLANT
V.
APPEAL FROM THE SCOTT
COUNTY CIRCUIT COURT
[CV-05-46]
HON. PAUL E. DANIELSON,
CIRCUIT JUDGE
STATE OF ARKANSAS
APPELLEE
REVERSED and DISMISSED
LARRY D. VAUGHT , Judge
Appellant Jeffrey Ridenhour appeals a judgment entered by the Scott County Circuit Court
granting the State’s complaint for forfeiture of Ridenhour’s 2004 Dodge pickup truck. For reversal,
Ridenhour argues that the evidence was insufficient to support the trial court’s judgment ordering
the forfeiture. We agree and reverse and dismiss.
At the forfeiture hearing, Arkansas State Trooper Shane Meyer testified that he initiated a
traffic stop after he observed Ridenhour, driving the truck in question, fail to stop at a stop sign.
After Trooper Meyer confirmed that Ridenhour was the owner of the truck and that his license was
suspended, he arrested Ridenhour and called a wrecker service to tow the truck. Before the wrecker
service arrived, Trooper Meyer searched the truck and discovered a plastic bag of a green leafy
substance in a boot behind the driver’s seat. The substance was later confirmed to be marijuana. On
the way to the Scott County Jail, Trooper Meyer noticed that Ridenhour “kept playing with his feet.”
He advised Ridenhour that once they arrived at the jail Ridenhour would be searched. Ridenhour
then confessed to having marijuana in his right boot. The total amount of marijuana found in the
truck and on Ridenhour was 64.5 grams.
Ridenhour testified that he owned the truck and that he bought it with money he received
when his father died. He testified that he had been a marijuana smoker for some time. He denied
selling marijuana. On the day in question, he testified that he worked on his farm and then went to
the cemetery for a couple of hours with his girlfriend to visit the graves of his father and brother. He
admitted to smoking marijuana at the cemetery. He testified that he left with his girlfriend to get
something to eat, which is when he was pulled over, and that he planned to smoke more marijuana
later that night. Ridenhour claimed that some of his girlfriend’s belongings were behind the seat of
the truck because she was planning to stay the night with him. At one point he testified that he knew
that the marijuana in the boot behind the seat belonged to his girlfriend but did not know she had that
much. Later, he testified that he was not aware that his girlfriend had marijuana on her person or
within her control. He denied ownership of the boot in the back of the truck, did not know whose
boot it was, and did not know how it got there.
The State’s complaint for forfeiture alleged that the truck “was held by [Ridenhour] and was
then (1) intended to be furnished in exchange for controlled substances, (2) traceable as proceeds
from such a transaction, or (3) used to facilitate a drug related crime.”1 Based on the evidence, the
trial court ordered forfeiture. The findings in the judgment of the trial court mirror the allegations
1
The forfeiture statute enumerates multiple items, including a vehicle, that are
subject to forfeiture. Ark. Code Ann. § 5-64-505 (Repl. 2005). The first two forfeiture
allegations made by the State, that the vehicle was intended to be furnished in exchange
for controlled substances and the vehicle was traceable as proceeds from such a
transaction, are included in the statute. § 5-64-505(a)(6)(A). The third allegation, that the
vehicle was “used to facilitate a drug related crime,” is not.
2
made by the State in its complaint. Ridenhour’s sole point on appeal is that the trial court erred in
denying his motion for directed verdict.
The State contends that Ridenhour’s sufficiency-of-the-evidence argument is not preserved
for appeal. At the hearing, Ridenhour’s motion for directed verdict was essentially a recitation of the
allegations made by the State in its complaint. Ridenhour placed additional emphasis in his directedverdict motion on the State’s third allegation by arguing that there was insufficient evidence to
conclude that the truck was used to facilitate a drug-related crime. On appeal, Ridenhour argues, for
the first time, that the trial court’s order of forfeiture was clearly erroneous because the State failed
to present any evidence that Ridenhour’s vehicle was used to transport, for the purpose of sale or
receipt of property, a controlled substance.2
Although Rule 50(a) of the Arkansas Rules of Civil Procedure provides that a party may
move for directed verdict in a non-jury case, our supreme court has held that, in a non-jury trial, a
party who does not challenge, or does not properly challenge, the sufficiency of the evidence does
not waive the right to do so on appeal. $15,956 in United States Currency v. State, 366 Ark. 70, ___
S.W.3d ___ (2006) (citing Oates v. Oates, 340 Ark. 431, 10 S.W.3d 861 (2000) (holding that in a
non-jury trial, a party who does not challenge the sufficiency of the evidence does not waive the right
to do so on appeal)); FirstBank of Ark. v. Keeling, 312 Ark. 441, 850 S.W.2d 310 (1993) (finding
that in a bench trial, it is not necessary to move for a directed verdict in order to appeal on the basis
of insufficiency of the evidence); Bass v. Koller, 276 Ark. 93, 632 S.W.2d 410 (1982) (holding that
appellants did not waive the right to question the sufficiency of the evidence despite failing to renew
2
Pursuant to § 5-64-505(a)(4)(A), a vehicle is subject to forfeiture when it is used
to transport, for sale or receipt, any controlled substance.
3
the directed-verdict motion at the close of all the evidence). Because this was a civil non-jury trial,
we hold that Ridenhour’s sufficiency argument, although based on grounds not asserted at the
hearing below, is nonetheless preserved for review.
We next turn to the issue of whether there was sufficient evidence to support the trial court’s
order of forfeiture. Forfeiture is an in rem civil proceeding, independent of any pending criminal
charge, 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 forfeitures are not favorites
of the law, the statute is construed narrowly on appeal. Id. The trial court’s decision granting
forfeiture will not be set aside unless it is clearly erroneous. Id. A trial court’s decision is clearly
erroneous when, although there is evidence to support it, the appellate court, after reviewing the
entire evidence, is left with a definite and firm conviction that a mistake has been committed. State
v. 26 Gaming Machines, 356 Ark. 47, 145 S.W.3d 368 (2004). We review the evidence in the light
most favorable to the appellee. Id.
The applicable forfeiture statute provides:
(a) 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)(A) Any conveyance, including an airplane, vehicle, or vessel, that is used, or intended for
use, to transport, or in any manner to facilitate the transportation, for the purpose of sale or
receipt of [any controlled substance]. . . .
Ark. Code Ann. § 5-64-505(a)(4)(A).
In support of reversal, Ridenhour cites 1993 Ford Pickup v. State, 88 Ark. App. 172, 196
S.W.3d 493 (2004), where, the State was awarded forfeiture of a truck that was found outside a home
4
known to be a methamphetamine laboratory. Inside the truck, police officers found a list of names
with varying dollar amounts beside each name. An officer testified that this type of list was
consistent with the distribution of drugs. On appeal, this court reversed holding that even if the list
was drug paraphernalia, there was no proof that the truck was used to transport drugs for the purpose
of sale or receipt. Ridenhour contends that there is less evidence in his case that his truck was being
used to transport marijuana for the purpose of sale or receipt than was presented in 1993 Ford
Pickup.
We find our decision in Burnett v. State, 51 Ark. App. 144, 912 S.W.2d 441 (1995) even
more instructive. In Burnett, the trial court entered an order of forfeiture finding that defendant’s
truck was being used to transport a controlled substance when 0.9 grams of methamphetamine was
found in his truck. We reversed, holding that there was no evidence that the truck was being used
to transport methamphetamine for the purpose of sale or receipt. 3
In the case at bar, all of the evidence presented to the trial court established that Ridenhour
was in possession of marijuana. However, mere possession of a controlled substance does not satisfy
the requirements set forth in the civil forfeiture statute. The statute requires that the State establish
by a preponderance of the evidence that Ridenhour’s truck was being used to transport marijuana
“for the purpose of sale or receipt.” We find no such evidence. Accordingly, we reverse the judgment
of the trial court and dismiss the State’s complaint.
Reversed and dismissed.
3
Although the State does not raise this issue, we note that in Burnett we also held
that Ark. Code Ann. § 5-64-401 (Repl. 2005), which provides, in part, that the intent to
deliver is presumed when a defendant is in possession of a certain amount of a controlled
substance, does not apply to civil forfeiture proceedings.
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HEFFLEY and MILLER, JJ., agree.
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