                  In the Missouri Court of Appeals
                          Eastern District

                                   DIVISION TWO



STATE EX REL.                            )      No. ED101045
    FORREST K. WEGGE,                    )
                                         )
      Plaintiff/Respondent,              )      Appeal from the Jefferson County
                                         )      Circuit Court
vs.                                      )
                                         )       Honorable Nathan B. Stewart
KEITH E. SCHRAMEYER,                     )
                                         )      Filed: August 26, 2014
      Defendant/Appellant.               )


                                      Introduction

      Keith Schrameyer (Defendant) appeals the summary judgment order of the Circuit

Court of Jefferson County forfeiting $2,439. Defendant claims that the circuit court erred

by granting summary judgment because: (1) Defendant presented sufficient admissible

evidence contravening the evidence offered by the State (Plaintiff); and (2) Defendant

“proved” that the money seized was legitimately derived and not subject to seizure.

Resolution of these claims requires this Court to consider an issue of first impression,

mainly: What factual allegations are necessary to demonstrate a material question of fact

sufficient to rebut the “presumption of forfeitability” applicable in certain forfeiture
proceedings under the Criminal Activity Forfeiture Act (CAFA), § 513.600 RSMo

(2000), et seq.?1 We hold that, in order to rebut the presumption of forfeitability, a

defendant must allege facts supporting the conclusion that the seized property found in

close proximity to a controlled substance was not furnished, nor intended to be furnished,

in exchange for the controlled substance and also was not used, nor intended to be used,

to facilitate the criminal activity. Because Defendant failed to adduce any competent

material evidence that the $2,439 was not used, nor intended to be used, in the

furtherance of the criminal activity, Defendant failed to demonstrate a genuine issue of

material fact and, therefore, the circuit court’s grant of summary judgment was proper.

We affirm.

                                               Factual Background

           On June 20, 2012, Jefferson County police responded to a narcotics complaint at a

residence in DeSoto, Missouri. The homeowners gave the police permission to enter the

residence, and upon entering, the officers located Defendant behind the door of the

master bedroom. Multiple bags of marijuana, methamphetamine, and pseudoephedrine

were seized from the master bedroom and the dining room table, as well as a box of

plastic bags and a digital scale. Officers also seized $2,439 from Defendant’s wallet,

which was on his person. Defendant admitted that he owned the items that the officers

seized, including the money. Defendant was arrested and subsequently pleaded guilty to

one count of possession of a controlled substance.


1
    All statutory references are to the Revised Missouri Statutes 2000.



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       Thereafter, Plaintiff, through Jefferson County Prosecutor Forest Wegge,

proceeded with a petition under the CAFA seeking forfeiture of the $2,439 seized from

Defendant’s wallet. The petition alleged that the currency was “used or intended for use

in the course of, derived from or realized through criminal activity [and that] pursuant to

Section 195.140.2(2) RSMo, currency or moneys are presumed forfeitable when found in

close proximity to controlled substances.” Subsequently, Plaintiff moved for summary

judgment, re-asserting the same claims and alleging that no genuine issue of material fact

remained.

       Defendant responded to the motion by alleging that a genuine issue of material

fact existed and precluded summary judgment, in that, the money was given to him by his

mother, Ellen Schrameyer. In support, Defendant included an affidavit in which he

averred that his mother gave him the money as a “gift” to help pay for child support and

living expenses and was “not used or intended for use in the course of, derived from, or

realized through criminal activity.” Defendant also attached copies of two checks from

Ellen’s account, which were written to “cash” for $3,000 and signed by Ellen. The first

check is dated June 16, 2012 and was processed on June 18, 2012, and the latter is dated

June 19, 2012 and was processed the same day. Defendant, thus, claimed that he had

sufficiently rebutted the presumption of forfeitability.

       Without addressing Defendant’s arguments, the circuit court entered a judgment in

favor of Plaintiff, reasoning that “there remains no genuine issue of material fact to be

resolved by this action.” This appeal followed.




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                                   Standard of Review

         We review de novo the circuit court’s summary judgment decision. State v.

Eicholz, 999 S.W.2d 738, 740 (Mo. App. W.D. 1999). We view all the submissible

evidence in the light most favorable to the non-moving party, giving that party the benefit

of all reasonable inferences. Id. Summary judgment is properly granted if there is no

genuine issue of material fact and the moving party is entitled to judgment as a matter of

law. St. Charles County v. Dardenne Realty Co., 771 S.W.2d 828, 830 (Mo. banc 1989).

A genuine issue of material fact precluding summary judgment exists if the record

contains competent material evidence that supports two plausible, but contradictory

conclusions. Rustco Prods. Co. v. Food Corn, 925 S.W.2d 917, 923 (Mo. App. W.D.

1996).

                                        Discussion

         Defendant’s two points relied on raise substantially similar arguments and,

therefore, we consider them together. Defendant claims that the circuit court’s summary

judgment order was erroneous because a genuine issue of material fact existed sufficient

to contravene Plaintiff’s allegation that the money was presumptively forfeitable under

§ 195.140.2(2). In particular, Defendant relies on his affidavit in which he attests that his

mother gave him the money as a gift to help pay child support and living expenses.

Alternatively, Defendant claims that the judgment was erroneous because he “proved”

that the money was legitimately derived and possessed, meaning that summary judgment

should have been entered in his favor. In response, Plaintiff asserts that Defendant failed

to provide competent evidence to substantiate Defendant’s claim that the seized currency


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was not related to criminal activity in order to rebut the statutory presumption of

forfeitability.

                              Applicable Forfeiture Statutes

       Missouri disfavors forfeitures and such actions are only undertaken if they

advance the letter and spirit of the law. State ex rel. Maclaughlin v. Treon, 926 S.W.2d

13, 16 (Mo. App. W.D. 1996). Under Missouri’s Comprehensive Drug Control Act

(DCA), 195.005 et seq., the legislature has required that “everything of value” furnished

to facilitate the commission of a drug felony, as in the instant case, shall be forfeited.

Specifically, § 195.140.2(1) provides in pertinent part:

       Everything of value furnished, or intended to be furnished, in exchange for
       a controlled substance, imitation controlled substance or drug paraphernalia
       in violation of sections 195.010 to 195.320, all proceeds traceable to such
       an exchange, and all moneys, negotiable instruments, or securities used, or
       intended to be used, to facilitate any violation of sections 195.010 to
       195.320 shall be forfeited . . . .


Such “money found in close proximity to forfeitable controlled substances furnishes a

logical basis for the inference of forfeitability . . . .” State ex rel. Cook v. Saynes, 713

S.W.2d 258, 262 (Mo. banc 1986).             The proceeding subsection of the DCA,

§ 195.140.2(2), recognizes this inference and creates a presumption that such proceeds

found in “close proximity” to a controlled substance are presumed forfeitable. Section

195.140.2(2) states:

       Any moneys, coin, or currency found in close proximity to forfeitable
       controlled substances, imitation controlled substances, or drug
       paraphernalia, or forfeitable records of the importation, manufacture, or
       distribution of controlled substances, imitation controlled substances or
       drug paraphernalia are presumed to be forfeitable under this subsection.


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       The burden of proof shall be upon claimants of the property to rebut this
       presumption. [Emphasis added.]

The DCA further requires that such forfeiture proceedings, which are civil in nature and

ancillary to the underlying criminal proceeding, be administered pursuant to special

procedures set forth in the CAFA. § 195.140.2(3); see also § 513.607.

       To initiate a forfeiture proceeding under the CAFA, the State files a “petition

which sets forth: (1) the property sought to be forfeited; (2) that the property sought to be

forfeited is within the jurisdiction of the court; (3) the grounds for forfeiture; (4) the

names of all known persons having or claiming an interest in the property; and (5) the

date and place the property was seized.” Eicholz, 999 S.W.2d at 741; § 513.607.6(1) &

(2). The State has the burden of proving each of these elements. § 513.607.6(2).

       Pertinent to this appeal is the State’s burden to establish grounds for civil

forfeiture, which ordinarily requires the state to present substantial evidence that “[a]ll

property of every kind, including cash or other negotiable instruments, [was] used or

intended for use in the course of, derived from, or realized through criminal activity . . .

.” § 513.607.1 (emphasis added); see State ex rel. Boling v. Malone, 952 S.W.2d 308,

312 (Mo. App. W.D. 1997). The CAFA defines “criminal activity,” in relevant part, as

“the commission . . . [of] any crime which is chargeable by indictment or information

under . . . [the DCA, i.e.,] Chapter 195, relating to drug regulations.” § 513.605(3)(a).

Hence, as this Court has recognized, the CAFA incorporates the DCA by reference,

making the presumption of forfeitability applicable to CAFA proceedings. See State ex

rel. Callahan v. Collins, 978 S.W.2d 471, 475 (Mo. App. W.D. 1998). It follows that, in



                                             6
a civil forfeiture proceeding involving a drug-related felony, the State is entitled to rely

on the “presumption that money found in close proximity to a controlled substance was

acquired as enunciated in section 195.140.2(1)” in establishing grounds for forfeiture.

See State v. Meister, 866 S.W.2d 485, 490 (Mo. App. E.D. 1993); § 195.140.2(2). “The

burden of proof is on [the defendant] to rebut this presumption.” State v. Dillon, 41

S.W.3d 479, 484 (Mo. App. E.D. 2000) (citing Meister, 866 S.W.2d at 488); §

195.140.2(2).

                                          Analysis

       Here, Plaintiff’s petition for civil forfeiture under the CAFA included all the

necessary elements to establish entitlement to the forfeiture, including the allegation that

the money was found in close proximity to controlled substances and was presumed

forfeitable under § 195.140.2(2).      Once Plaintiff moved for summary judgment,

Defendant could not rest on mere denials, but was required to set forth specific facts, by

affidavit or otherwise, showing a genuine issue of fact for trial. Dardenne Realty Co.,

771 S.W.2d at 830. To meet this burden, Defendant submitted an affidavit, in which

Defendant attested as follows:

         1.     I am the defendant in Jefferson County Circuit Court Cause No.
                12JE-CC00636.

         2.     On June 20, 2012, the Jefferson County Sheriff’s Department seized
                $2,439.00 in U.S. currency from my wallet that was on my person.

         3.     The $2,439.00 in U.S. currency seized from me on June 20, 2012,
                was not used or intended for use in the course of, derived from, or
                realized through criminal activity.




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         4.   The $2,439.00 in U.S. currency seized from me on June 20,      2012,
              was money that was given to me as a gift by my mother,         Ellen
              Schrameyer, in two checks amounting of [sic] $3,000.00         each,
              drawn on the Southern Commercial Bank and dated June 16,       2012,
              and June 19, 2012.

         5.   Attached hereto as exhibits #1 and #2 are true and correct copies of
              the checks and cashing endorsements.

         6.   The money from these two checks was given to me by my mother to
              help me pay child support and my living expenses. It was not used
              or intended for use in the course of, derived from, or realized
              through criminal activity. [Emphasis added.]

Defendant also included in support the two checks written “to cash” by his mother,

totaling $6,000, which were processed on June 18th and 19th.

      An “opposing affidavit[] must be made on personal knowledge, shall set forth

facts as would be admissible in evidence, and shall show affirmatively that the affiant is

competent to testify on the matters stated therein.” Dardenne Realty Co., 771 S.W.2d at

830; Rule 74.04(e). “An affiant who fails to aver specific facts and relies only upon mere

doubt and speculation fails to raise any issue of material fact.” Kellog v. Kellog, 989

S.W.2d 681, 687 (Mo. App. E.D. 1999) (citation and quotations omitted). Further,

“[c]onclusory allegations are not sufficient to raise a question of fact in summary

judgment proceedings.” Id.

      With these standards in mind, we note that neither Defendant nor Plaintiff cite a

single forfeiture case decided at the summary judgment stage. Plaintiff cites to Ware v.

State, 128 S.W.3d 529 (Mo. App. E.D. 2003), Dillon, 41 S.W.3d at 479, and Collins, 978

S.W.2d at 471, but these cases affirmed the forfeiture of currency found in close

proximity to a controlled substance after a trial on the issue. The question in Ware,


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Dillon, and Collins was whether substantial evidence supported the trial court’s judgment

and, consequently, these cases do not illuminate what factual allegations are necessary to

avoid summary judgment when the state relies on the presumption of forfeitability.

Further, we are unaware of any such case that specifically addresses the issue that is now

before this Court.2 In our view, the best guidance, in the absence of any controlling case

law, is the pertinent language of the DCA. Our primary goal is to give effect to the

legislature’s intent and, to do so, we must give statutory language its plain and ordinary

meaning. Anani v. Griep, 406 S.W.3d, 482 (Mo. App. E.D. 2013). If statutory language

is unambiguous, then the words must be applied as written without any judicial

construction. See id.

        Recall that the presumption of forfeitability enunciated in § 195.140.2(2) is based

on the logical inference that currency seized in close proximity to controlled substances

as described in § 195.140.2(1) is related to the commission of the drug felony. Reading

§ 195.140.2(1) and (2) together, it is clear that a defendant may oppose a summary

judgment motion that relies on the presumption of forfeitability by demonstrating through

competent material evidence a genuine issue of material fact that the currency seized in

close proximity to the controlled substance was not procured as described in

§ 195.140.2(1).         This showing requires a defendant to allege facts supporting the

conclusion that the currency found in close proximity to the controlled substance was not

2
 In Meister, 866 S.W.2d at 490, this Court considered the presumption of forfeitability in the context of an Eighth
Amendment challenge and noted in dicta that “[t]he burden to prove that the currency and coin found in close
proximity to a controlled substance were not received in exchange for, nor were intended to be used to obtain,
controlled substance is shifted to the person claiming the money.” However, Meister was not decided in the context
of the CAFA, as it predated the requirement that all forfeiture proceedings be conducted pursuant to the CAFA, and
did not consider the exact question before this Court.


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“furnished,” nor “intended to be furnished,” in exchange for the controlled substance and

also was not “used,” nor “intended to be used,” to facilitate the criminal activity as set

forth in § 195.140.2(1). If a defendant fails to make either showing, then the inference

that money found in close proximity to controlled substances is related to the criminal

activity is not contradicted and no genuine issue of material fact exists for trial.

       Here, Defendant’s allegation that his mother gave him the money is sufficiently

specific to establish a material question of fact regarding whether the currency was

furnished or intended to be furnished in exchange for controlled substances. More

importantly, this factual allegation is insufficient to establish that the money was not used

in furtherance of, or intended for use in furtherance of, Defendant’s criminal activity.

This is because Defendant’s attestations merely reflect how Defendant allegedly received

the money and Defendant’s understanding of his mother’s intent regarding her provision

of the currency. Defendant’s affidavit makes no specific factual allegations that he in

fact used the money for child support or living expenses, or an explanation of how he

intended to use the money in the future.           Nor did Defendant make any effort to

demonstrate what he spent the remaining $3,561 on in the one to two days the currency

was in his possession. Indeed, the only allegation that Defendant offers that the money

was not to be used in furtherance of criminal activity is the conclusory statement that the

currency was not used for criminal activity. Such a conclusory allegation is insufficient

to create a genuine issue of material fact for trial. Kellog, 989 S.W.2d at 687.

       Because Defendant did not adduce specific facts supporting a conclusion that the

money was not used, nor intended to be used, in the furtherance of the criminal activity,


                                              10
he failed to provide the evidence necessary to rebut the presumption of forfeitability and

also to create a genuine issue of material fact for trial. For this same reason, Defendant

has not “proved,” as he claims in his second point relied on, that the currency seized was

legitimately derived and possessed such that summary judgment should have been

granted in his favor.3 The circuit court did not err by granting summary judgment for

Plaintiff.

                                                   Conclusion

         The judgment of the circuit court is affirmed.



                                                      ________________________________
                                                      Philip M. Hess, Judge


Sherri B. Sullivan, P.J. and
Mary K. Hoff, J. concur.




3
 In support of this argument, Defendant asserts that Plaintiff presented no evidence that the money seized was used
or derived through criminal activity and that Defendant met his burden of rebutting the presumption. Contrary to
Defendant’s assertion, Plaintiff presented substantial evidence that the drugs and drug related paraphernalia were
seized from Defendant at the same time that the currency was seized. Under these facts, Plaintiff was entitled to rely
on the presumption of forfeitability.


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