$14,605.70 in American Currency, and James M. Rogers and Brenda D. Rogers v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

$14,605.70 IN AMERICAN CURRENCY and JAMES M. ROGERS and BRENDA D. ROGERS

APPELLANTS

V.

STATE OF ARKANSAS

APPELLEE

CA05-484

February 8, 2006

APPEAL FROM THE HOT SPRING COUNTY CIRCUIT COURT

[CV-00-111-2]

HON. PHILLIP H. SHIRRON, CIRCUIT JUDGE

AFFIRMED

Larry D. Vaught, Judge

Appellants, Brenda and James Rogers, appeal following a grant of summary judgment by the trial court finding no issues of fact existed and forfeiting $14,605.01 to the State of Arkansas pursuant to Ark. Code Ann. § 5-64-505 (Supp. 2005). Appellants argue on appeal that there were issues of fact in dispute regarding whether the money was in close proximity to contraband pursuant to the statute and that summary judgment was therefore inappropriate. We disagree and affirm.

Brenda and James Rogers were convicted in Hot Spring County of attempted manufacture of methamphetamine, possession of ephedrine with intent to manufacture methamphetamine, and possession of methamphetamine. During the criminal trial, the court allowed into evidence money that was found during the search of the residence, and on July 6, 2000, the State filed an in rem complaint against appellants and the $14,605.011 in currency that was found during the search. Appellants answered that complaint and generally denied that the currency was forfeitable. After appellants' criminal convictions were affirmed on appeal, the State filed a motion for summary judgment alleging that the criminal trial and affirmance on appeal resolved all questions of fact and that it would serve judicial economy not to have to re-litigate the issue of whether the money was forfeitable.

Attached to the State's motion for summary judgment was a copy of the abstracted testimony of Pat Mahoney, the narcotics officer in charge of the search of appellants' residence and curtilage, which consisted of a trailer surrounded by a chain link fence, a small building just outside of the fence in front of the trailer, a two-story shed on the right-hand-side of the trailer, and a small shed in the backyard behind the trailer. His testimony revealed that money had been found in a money box on the kitchen table of the trailer, in a PVC pipe in the closet of one bedroom, in a money bag in the closet of that bedroom, in a night-stand drawer in that bedroom, in a Bible, in a purse sitting on the kitchen table, and in a cash register in the building outside of the fenced-in area surrounding the trailer. He also declared that iodine crystals (a by-product of the manufacture of methamphetamine) and a five-gallon drum of iodine had been found in the two-story shed; that several bottles of ephedrine and pseudoephedrine had been located in the building outside of the fence; that muriatic acid and numerous pairs of plastic gloves had been found in the shed behind the trailer; and that several bags of white powder, ephedrine, pseudoephedrine, iodine crystals, scales, rock salt, alcohol, hydrogen peroxide, HEET, and Red Devil lye had been discovered in various rooms of the trailer. Of the items in the trailer, several had been found in the kitchen and bedroom. In all, the search uncovered over 20,000 ephedrine or pseudoephedrine tablets, with nine out of ten of them found in the residence itself. The State also attached the abstracted testimony of Linda Burdick, a chemist with the State Crime Lab, in which she explained how all of the evidence secured by Officer Mahoney had been used in the manufacture of methamphetamine.

In their response to the summary-judgment motion, appellants denied that the money was used in any manner to facilitate the sale of methamphetamine and denied that the money found was in close proximity to a controlled substance or drug paraphernalia. Appellants attached several transcript pages from their criminal trial to their response, including the testimony of Officer Mahoney identifying photographs of the money that was found during the search; the transcript of the trial court judge giving instructions to the jury; and the testimony of Brenda Rogers stating that she ran a health food store in a building on her property, that money found in the cash box was related to that business, and that the money found in her purse was her "rat-hole" money. The trial court granted the State's motion for summary judgment, and appellants filed a timely notice of appeal. Summary judgment is appropriate when there is no genuine issue of material fact to resolve, and the moving party is entitled to judgment as a matter of law. Nielsen v. Berger-Nielsen, 347 Ark. 996, 69 S.W.3d 414 (2002). Once the moving party has established a prima facie case that supports summary judgment, the opposing party then has the burden of producing evidence of a genuine issue of material fact. Id. at 1004, 69 S.W.3d at 418. On appeal, we view the evidence in a light most favorable to the party resisting the motion and resolve all doubt and inferences against the moving party. Id., 69 S.W.3d at 418.

Arkansas Code Annotated § 5-64-505(a)(6) defines items subject to forfeiture as "[e]verything of value furnished or intended to be furnished in exchange for a controlled substance or counterfeit substance ... all proceeds and profits traceable to such as exchange, and all moneys, negotiable instruments, and securities used or intended to be used" in violation of the controlled-substances statute. Arkansas Code Annotated § 5-64-505(a)(6) further states that "[a]ll moneys, coin, and currency found in close proximity to forfeitable controlled substances, ... [or] to forfeitable drug manufacturing or distributing paraphernalia are presumed to be forfeitable." (Emphasis added.) The burden of proof is upon the claimants of the property to rebut this presumption by a preponderance of the evidence. Ark. Code Ann. § 5-64-505(a)(6). There is no burden on the State to link the money to drug activity or to show a separate specific intent that the money is to be used or has been gained through drug activity because the statute provides that money found in close proximity to forfeitable items is presumed forfeitable. See Limon v. State, 285 Ark. 166, 685 S.W.2d 515 (1985). A forfeiture is an in rem civil proceeding, independent of the criminal charge and to be decided by a preponderance of the evidence. Id. at 168, 685 S.W.2d at 516. "Close proximity" simply means "very near" and should be determined on a case by case basis. Id. at 168, 685 S.W.2d at 516. Our supreme court has declined to affix rigid rules for the definition of "close proximity" such as fixing it at a particular number of feet, by reference to particular rooms, or by any rule of thumb. Id., 685 S.W.2d at 517.

The issue on appeal is whether there was a genuine fact in dispute that would preclude the trial court's grant of summary judgment in favor of the State. Because Ark. Code Ann. § 5-64-505(a)(6) provides a presumption in favor of forfeiture when currency has been found in close proximity to controlled substances, we must determine whether the State provided adequate proof in its summary-judgment motion to raise the presumption and then whether appellants presented sufficient proof in their response to rebut that presumption.

Appellants argue that there are genuine issues of material fact regarding whether the money was in close proximity to contraband. Although appellants mention the alleged legal origin of a small amount of the funds in their response to the summary-judgment motion, they only argue on appeal that the issue of proximity has not been proven by the State. They contend that the State was unable to pinpoint exact locations to describe where the money was found during the search and that some of the money found during the search was found near ingredients, not controlled substances or drug paraphernalia. Appellants cite Autrey v. State, __ Ark. App. __, __ S.W.3d __ (Feb. 23, 2005), and $735 in U.S. Currency v. State, __ Ark. App. __, __ S.W.3d __ (Mar. 23, 2005), rev'd, $735 in U.S. Currency v. State, __ Ark. __, __ S.W.3d __ (Jan. 12, 2006), for the proposition that drug ingredients are not items of drug manufacturing paraphernalia, and therefore money found in close proximity to ingredients is not forfeitable.

However, we are satisfied that the State provided sufficient proof to raise the presumption in favor of forfeiture. Because our supreme court reversed our holding in $735 in U.S. Currency, that case no longer has precedential value. Additionally, the present case is distinguishable from Autrey because more than just an ingredient to make methamphetamine was found during the search-in fact, several ingredients, as well as methamphetamine and paraphernalia used to manufacture methamphetamine were found. The abstracted testimony of Officer Mahoney revealed that methamphetamine, various items of drug paraphernalia, and ingredients used to make methamphetamine were found throughout the trailer and buildings surrounding the trailer. He also testified that the money was found in the trailer in the same two rooms where methamphetamine or drug paraphernalia were found. In addition, appellants were actually convicted of possession of methamphetamine, attempted manufacture of methamphetamine, and possession of ingredients used to manufacture methamphetamine. Appellants cannot now argue on appeal that the ingredients and paraphernalia found during the search were not related to the manufacture of methamphetamine-that issue has clearly been decided in the criminal trial.

We affirm because the trial court did not err in granting the motion for summary judgment where appellants were convicted of crimes related to the manufacturing of methamphetamine; at the criminal trial, it was established that methamphetamine, ingredients used in the manufacture of methamphetamine, and paraphernalia used in the manufacture of methamphetamine were found in the trailer and surrounding areas; the State supplied proof with its summary-judgment motion that large amounts of currency were found in the trailer and surrounding areas; and appellants failed to rebut the presumption that the currency found in close proximity to contraband is forfeitable.

Affirmed.

Gladwin and Bird, JJ., agree.

1 Although the caption of this case reflects the currency amount as $14,605.70, the actual amount is $14,605.01. In an amended judgment filed March 30, 2005, the circuit court noted that a typographical error was to blame for the incorrect amount.