SANDRA HIBBENS AND JOHN HIBBENS v. COMMONWEALTH OF KENTUCKY
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RENDERED: NOVEMBER 30, 2007; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2006-CA-002601-MR
SANDRA HIBBENS AND
JOHN HIBBENS
v.
APPELLANT
APPEAL FROM MAGOFFIN CIRCUIT COURT
HONORABLE KIMBERLY CORNETT CHILDERS, JUDGE
ACTION NO. 05-CR-00054
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE AND LAMBERT, JUDGES; ROSENBLUM, SENIOR JUDGE.1
ROSENBLUM, SENIOR JUDGE: Sandra Hibbens and her husband, John Hibbens,
appeal from an order of the Magoffin Circuit Court ordering the forfeiture of $6,668.00 in
currency discovered in the possession of Sandra at the time she was arrested on drug
related charges. The appellants contend that the Commonwealth failed to establish a
1
Senior Judge Paul W. Rosenblum sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
nexus between the cash and a violation of KRS2 Chapter 218A; that John Hibbens is an
innocent owner of the cash; and that the amount of forfeiture ordered amounts to an
excessive fine. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On May 23, 2005, the Salyersville Police Department received a call from
the office of attorney Don McFarland regarding an intoxicated female upon the premises.
The police responded to the call and discovered Sandra unconscious. Sandra was given
field sobriety tests, which she failed. Sandra was subsequently arrested for public
intoxication, and eventually pled guilty to the charge.
In a search incident to the public intoxication arrest, police discovered 29
Xanex (Alpralazom) pills, 3 Lorcet (Hydrocodone) pills, and 1 Tylox (Oxycodone) pill in
Sandra's purse. Also discovered in the purse was $6,668.003 in currency and a check in
the amount of $7,072.56 ($13,740.56 total). The cash and check were seized along with
the pills.
On June 20, 2005, Sandra was indicted on one count of second degree
trafficking in a controlled substance for unlawfully trafficking in Lorcets, a Schedule III
narcotic, a Class D felony, KRS 218A.1413; one count of first degree trafficking in a
controlled substance for unlawfully trafficking in Oxycodone, a Schedule II narcotic, a
2
Kentucky Revised Statutes.
3
The $6,668.00 in currency was what remained of an original cash withdrawal of $7,000.00 on
May 20, 2005, three days prior to the arrest. On that date Sandra had essentially cleaned out her
and her husband's joint savings account. At the time Sandra and John were beginning divorce
proceedings.
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Class C felony, KRS 218A.1412; and one count of third degree trafficking in a controlled
substance for unlawfully trafficking in Xanax, a Schedule IV narcotic, a Class A
misdemeanor, KRS 218A.1414.
Trial was held on August 28, 2006. At the conclusion of the evidence the
jury rejected the Commonwealth's theory that Sandra was trafficking in the narcotics
discovered in her possession, and instead returned verdicts on the lesser included offenses
of possession. In summary, Sandra was convicted of one count of second degree
possession of a controlled substance for possession of the Lorcets, a Class A
misdemeanor, KRS 218A.1416; one count of first degree possession of a controlled
substance for possession of the Oxycodone, a Class D felony, KRS 218A.1415; and one
count of third degree possession of a controlled substance for possession of the Xanax, a
Class A misdemeanor, KRS 218A.1414. Following the penalty phase, the jury
recommended sentences upon the convictions of twelve months, five years, and twelve
months, respectively. On September 26, 2006, the trial court entered final judgment in
accordance with the jury's verdict and sentencing recommendation.
On September 26, 2006, Sandra filed a motion seeking the release of the
money seized by the police in connection with her original arrest. In response, on
October 12, 2006, the Commonwealth filed a motion seeking forfeiture of the $6,668.00
in currency seized at the time of Sandra's arrest (the motion did not seek forfeiture of the
check). Also on October 12, 2006, John Hibbens, Sandra's husband, filed a motion
seeking intervention in the forfeiture proceedings. The motion alleged that he had earned
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the money at issue and had no knowledge of Sandra's use of the funds in connection with
any violation of KRS Chapter 218A. He claimed that he was an innocent owner of the
funds and, accordingly, the funds were not subject to forfeiture. John's motion was
subsequently granted.
A hearing upon the forfeiture issue was held on October 26, 2006.4 The
parties filed post hearing memoranda in support of their positions. In its November 13,
2006, post hearing filing the Commonwealth requested to amend its forfeiture motion to
include the $7,072.56 check found in Sandra's purse at the time of her arrest.
On November 21, 2006, the trial court entered an order determining that,
pursuant to KRS 218A.410, the $6,668.00 in currency was subject to forfeiture because it
was traceable to a violation of KRS Chapter 218A, but that the $7,062.56 check was not.
Forfeiture was ordered consistent with that determination. On November 29, 2006, an
amended order was entered clarifying the distribution of the forfeited proceeds. This
appeal followed.5
SUFFICIENCY OF THE EVIDENCE
The appellants' first two assignments of error are to the effect that the
Commonwealth failed to meet its burden of establishing a nexus between the cash and a
violation of KRS Chapter 218A. More specifically, they contend that since Sandra was
convicted of mere possession of - as opposed to trafficking in - the drugs, it has been
4
The video tape of the hearing is not included in the record on appeal.
5
The Commonwealth has not cross-appealed the trial court's denial of the forfeiture of the
check.
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established that the cash was not the product of drug profits. They also argue more
generally that the Commonwealth failed to prove that the cash “had any relationship or
was gained by any activity in drugs.” As further discussed below, we believe that these
arguments misconstrue the reach of the drug forfeiture statutes. Contrary to the premise
of these arguments, it is not the case that to be subject to forfeiture that the currency or
property have been derived directly from drug profits.
KRS 218A.410 provides, in relevant part, as follows:
(1) The following are subject to forfeiture:
(j) Everything of value furnished, or intended to be
furnished, in exchange for a controlled substance in
violation of this chapter, all proceeds, including real and
personal property, traceable to the exchange, and all moneys,
negotiable instruments, and securities used, or intended to
be used, to facilitate any violation of this chapter; except
that no property shall be forfeited under this paragraph, to the
extent of the interest of an owner, by reason of any act or
omission established by him to have been committed or
omitted without his knowledge or consent. It shall be a
rebuttable presumption that all moneys, coin, and
currency found in close proximity to controlled
substances, to drug manufacturing or distributing
paraphernalia, or to records of the importation, manufacture,
or distribution of controlled substances, are presumed to be
forfeitable under this paragraph. The burden of proof shall
be upon claimants of personal property to rebut this
presumption by clear and convincing evidence. The burden
of proof shall be upon the law enforcement agency to prove
by clear and convincing evidence that real property is
forfeitable under this paragraph. (Emphasis added).
We first note that a trafficking conviction is not necessary as a prerequisite
to forfeiture as appears to be suggested by the appellants. Contrary to the appellants'
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argument, the Commonwealth need not show that the cash was derived from the profits
of drug sales. By its plain language 218A.410(1)(j) provides for the forfeiture of
currency which is “intended to be furnished [] in exchange for a controlled substance in
violation of this chapter[.]” Indeed, the Commonwealth premised its forfeiture motion
upon this provision. The Commonwealth's theory was that of the $7,000.00 in currency
Sandra initially withdrew, she had spent at least $200.00 (the value of the drugs in her
possession) to procure narcotics in violation of KRS Chapter 218A.
Further, nothing in the forfeiture statute even requires a criminal
conviction at all of the person whose property is sought to be forfeited. Osborne v.
Commonwealth, 839 S.W.2d 281, 283 (Ky. 1992). Rather, “[i]t is sufficient under KRS
218A.410(h) and (j) to show a nexus between the property sought to be forfeited and its
use to facilitate violation of the Controlled Substances Act, KRS 218A.” Id., citing
Smith v. Commonwealth, 707 S.W.2d 342 (Ky. 1986).
We next note that under KRS 218A.415, which governs the procedure for
seizure of property, the Commonwealth has the initial burden of showing the existence of
probable cause for the forfeiture of real property and the necessity of seizure; the burden
then shifts to the respondent to show by a preponderance of the evidence that the property
is not subject to forfeiture. See KRS 218.415(3)(a)(2); Smith v. Commonwealth, 205
S.W.3d 217, 222 (Ky.App. 2006).
However, KRS 218A.410(1)(j) has a special burden shifting procedure
applicable to situations where, as here, currency is found in close proximity to controlled
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substances. As is clear from the text of this provision, after the Commonwealth has made
out a prima facie case for forfeiture, the statute then places the burden on the claimant to
rebut by clear and convincing evidence the presumption that "all moneys, coin, and
currency found in close proximity to controlled substances, to drug manufacturing or
distributing paraphernalia, or to records of the importation, manufacture, or distribution
of controlled substances, are ... forfeitable[.]" In Osborne v. Commonwealth, supra, the
Supreme Court described the application of this burden shifting as follows:
The Commonwealth may meet its initial burden by producing
slight evidence of traceability. Production of such evidence
plus proof of close proximity, the weight of which is
enhanced by virtue of the presumption, is sufficient to sustain
the forfeiture in the absence of clear and convincing evidence
to the contrary. In practical application, the Commonwealth
must first produce some evidence that the currency or some
portion of it had been used or was intended to be used in a
drug transaction. Additional proof by the Commonwealth
that the currency sought to be forfeited was found in close
proximity is sufficient to make a prima facie case.
Thereafter, the burden is on the claimant to convince the trier
of fact that the currency was not being used in the drug trade.
Id. at 284.
We further note that the issue of forfeiture was tried by the circuit court
sitting without a jury. The issue is before this court upon the circuit court's findings of
fact and conclusions of law and upon the record made before it. Accordingly, appellate
review of the circuit court's findings of fact is governed by the rule that such findings
shall not be set aside unless clearly erroneous. Ky. R. Civ. P. 52.01; Largent v. Largent,
643 S.W.2d 261, 263 (Ky. 1982). “A factual finding is not clearly erroneous if it is
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supported by substantial evidence.” Sherfey v. Sherfey, 74 S.W.3d 777, 782 (Ky.App.
2002). “Substantial evidence” is evidence of substance and relevant consequence
sufficient to induce conviction in the minds of reasonable people.” Id. The circuit court's
application of law is, of course, reviewed de novo. Monin v. Monin, 156 S.W.3d 309, 315
(Ky.App. 2004).
In the case at bar it is uncontested that the currency was found in close
proximity to the drugs Sandra was convicted of possessing in violation of KRS Chapter
218A. The pills and currency were found in the same purse. Moreover, the
Commonwealth produced at least “slight evidence” of a nexus between the currency and
a violation of the Act by producing evidence that the value of the drugs in her possession
was approximately $200.00, thereby raising the circumstantial inference that Sandra had
purchased the drugs from the dissipated $7,000.00 withdrawal. As such, the
Commonwealth met its burden of establishing a prima facie case for forfeiture.
Consistent with the foregoing, the trial court made the finding “[i]t is reasonable to infer
based on the totality of the proof, and the Court so finds, that the Defendant used some of
the $7,000.00 to purchase the Controlled Substances in her possession on 5/23/05 which
constituted a violation of the Act.” "Findings of fact shall not be set aside unless clearly
erroneous, and due regard shall be given to the opportunity of the trial court to judge the
credibility of the witnesses." CR 52.01; Stincer v. Commonwealth, 712 S.W.2d 939,
941 (Ky. 1986). Upon the available record, the trial court's conclusion that Sandra had
spent some of the cash funds on drugs was not clearly erroneous.
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The Commonwealth having met its burden of presenting a prima facie case
for forfeiture, the burden then shifted to the appellants to demonstrate by clear and
convincing evidence that the currency was not used in violation of KRS Chapter 218A.
It appears that the appellants attempted to rebut the Commonwealth's case by trying to
convince the trial court that Sandra had not procured the drugs by purchasing them out of
the $7,000.00 in currency, but, rather the drugs had been given to her.6 In its forfeiture
order, following a discussion of the evidence presented by the appellants in their case in
chief at the October 16, 2006, evidentiary hearing, the trial court made the following
finding:
[T]his Court finds that the Defendant's statements that she
was 'given' approximately $200.00 worth of pills not credible,
particularly in light of her admission to buying Controlled
Substances in the past. The Defendant has not met her
burden by clear and convincing evidence to rebut the
presumption that a portion of the $7,000.00 was used to
violate the Controlled Substances Act.
Unfortunately we are unable to review the strength of the appellants'
rebuttal evidence because the video tape of the October 16, 2006, evidentiary hearing is
not included in the record on appeal. It is an appellant's duty to see that the record is
6
We note that under the facts at bar KRS 218A.410(1)(j) would require proof that Sandra
intended to use the $6,668.00 to facilitate a violation of the statute (eg., to spend it all on
additional drugs) to warrant forfeiture. We further note that the trial court did not make any
findings regarding such intent. However, “[a] final judgment shall not be reversed or remanded
because of the failure of the trial court to make a finding of fact on an issue essential to the
judgment unless such failure is brought to the attention of the trial court by a written request for a
finding on that issue or by a motion pursuant to Rule 52.02.” Moreover, it appears that the
appellants did not raise the issue before the trial court, and hence the issue is unpreserved, Caslin
v. General Elec. Co., 608 S.W.2d 69, 70 (Ky.App. 1980) and if they did, they have not raised the
issue before us, and hence the argument is deemed to be waived. Grange Mutual Insurance Co.
v. Trude, 151 S.W.3d 803, 815 (Ky. 2004).
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complete on appeal. Commonwealth, Dept. of Highways v. Richardson, 424 S.W.2d 601,
603 (Ky.1968). When the complete record is not before the appellate court, we are bound
to assume that the omitted record supports the decision of the trial court. Id.;
Commonwealth v. Thompson, 697 S.W.2d 143, 145 (Ky. 1985); Burberry v. Bridges, 427
S.W.2d 583, 585 (Ky.1968). As noted by the Court in the Burberry case, “[i]t is also
reasonable to place upon appellant the duty to designate and file a record sufficient to
enable the court to pass on the alleged errors.” Id. at 585.
In summary, the trial court's finding that the Commonwealth had
established a prima facie case for forfeiture was not clearly erroneous. Moreover, we are
unable to review the appellants' evidence in rebuttal to the Commonwealth's prima facie
case. It follows that we are unable to base a reversal of the trial court's forfeiture decision
upon insufficiency of the evidence.
INNOCENT OWNER
KRS 218A.410(1)(j) provides an “innocent owner” defense by its provision
“that no property shall be forfeited under this paragraph, to the extent of the interest of an
owner, by reason of any act or omission established by him to have been committed or
omitted without his knowledge or consent.”
In their third and fourth arguments the appellants contend that John is an
innocent party in that he was the actual owner of the currency and that no drug
transaction can be traced to him. They argue that even if Sandra did use proceeds from
the original $7,000.00 cash withdrawal to purchase drugs, John had no knowledge of the
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conduct and the conduct cannot be imputed to him. The appellants allege error in the
trial court's rejection of this defense.7
Again, however, as the evidentiary hearing video is not included in the
record on appeal, we are hampered in our review of this argument. We accordingly are
constrained to affirm upon this argument. Richardson, supra; Thompson, supra;
Burberry, supra.
EXCESSIVE FINE
In the alternative to the foregoing arguments the appellants contend that the
ordered forfeiture constituted an excessive fine.
The Eighth Amendment provides: "Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted." United States
Constitution, Amdt. 8; Kentucky Constitution, Section 17. Forfeitures which amount to a
criminal penalty are subject to excessive fine scrutiny. Commonwealth v. Fint, 940
S.W.2d 896 (Ky. 1997). So are punitive civil in rem forfeitures. U.S. v. Bajakajian, 524
U.S. 321, 327, 118 S.Ct. 2028, 2033 (1998). The Commonwealth agrees with the
appellants' position that the present forfeiture is subject to excessive fine scrutiny, so we
accept without further review that it is.8
7
The Commonwealth argues to the effect that this issue is not properly before us because John
was not named as a party to the appeal. However, the body of the appellants' notice of appeal
identified John as a party to the appeal.
8
Further, as noted in footnote 6, supra at pg. 9, the appellants have waived any challenge as to
Sandra's intent under KRS 218A.410(1)(j).
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Citing Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637
(1983), Fint, supra, set forth the following factors for consideration in determining
whether a particular forfeiture violates the excessive fines clause: (1) the gravity of the
offense and harshness of the penalty; (2) the sentences imposed upon other criminals in
the same jurisdiction; and (3) the sentences imposed for commission of the same crime in
other jurisdictions. Id. at 898. We believe factors one and two are dispositive under the
facts at bar.
As previously noted, Sandra was ultimately convicted of one count of
second degree possession of a controlled substance for possession of the Lorcets, a Class
A misdemeanor, KRS 218A.1416; one count of first degree possession of a controlled
substance for possession of the Oxycodone, a Class D felony, KRS 218A.1415; and one
count of third degree possession of a controlled substance for possession of the Xanax, a
Class A misdemeanor, KRS 218A.1414. Thus, Sandra was convicted of one Class D
felony and two Class A misdemeanors.
Pursuant to Sandra's conviction for the Class D felony, she was subject to a
maximum fine of $10,000.00. See KRS 534.030(1). She was further subject to fines of
$500.00 for each Class A misdemeanor conviction. See KRS 534.040(2)(a). Thus she
was subject to maximum fines totaling $11,000.00 for her three drug convictions.
In consideration that the total permissible fines for Sandra's drug
convictions amounted to $11,000.00, we agree with the trial court's conclusion that the
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forfeiture of $6,668.00 does not constitute an excessive fine. Bajakajian, supra; Fint,
supra.
CONCLUSION
For the foregoing reasons the judgment of the Magoffin Circuit Court is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Lowell E. Spencer
Paintsville, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Louis F. Mathias, Jr.
Assistant Attorney General
Frankfort, Kentucky
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