                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                                In the Matter of:

  EIGHTY FIVE THOUSAND FIVE HUNDRED AND TWENTY FOUR
  DOLLARS ($85,524.00) IN UNITED STATES CURRENCY ET AL., AS
            DESCRIBED IN THE ATTACHED APPENDIX.
_________________________________________________________________

                  STATE OF ARIZONA, Plaintiff/Appellee,

                                        v.

                     ABEL BANDA, Claimant/Appellant.

                             No. 1 CA-CV 16-0009
                              FILED 12-1-2016


           Appeal from the Superior Court in Maricopa County
                          No. CV2014-006887
               The Honorable Arthur T. Anderson, Judge

                                  AFFIRMED


                                   COUNSEL

Abel Banda, Phoenix
Claimant/Appellant

Maricopa County Attorney’s Office, Phoenix
By Peter S. Spaw
Counsel for Plaintiff/Appellee
                             STATE v. BANDA
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge Margaret H. Downie joined.


T H U M M A, Judge:

¶1            Claimant Abel Banda appeals from a final forfeiture
judgment, entered after an evidentiary hearing, awarding $85,524 in United
States currency to the State of Arizona.1 Because Banda has shown no error,
the judgment is affirmed.

             FACTS2 AND PROCEDURAL BACKGROUND

¶2            In February 2014, law enforcement officers patrolling the
Morgan City Wash area in Peoria, Arizona, saw Banda shooting a gun in an
unsafe manner. After questioning Banda and issuing him a warning, an
officer noticed a glass smoking pipe inside Banda’s vehicle. Banda then
consented to a search of the vehicle, which yielded 8.3 grams of marijuana
and envelopes containing large denominations of currency totaling $85,524.

¶3           When the officers asked Banda about the source of such a
large amount of cash, Banda said he was unemployed but the cash
represented his life savings and a recent tax refund. When asked about the
total amount of cash in the envelopes, Banda was unsure but said it was
anywhere from $20,000 to $30,000. His wife said the cash totaled $60,000.

¶4            The officers also found money ledgers and Western Union
receipts, which they later testified were indicative of illegal drug sales. The


1Laura Banda, Abel’s wife, was an additional claimant before the superior
court. Abel is self-represented on appeal; Laura did not sign the notice of
appeal and Abel cannot represent Laura on appeal. See State v. One Single
Family Residence at 1810 E. Second Ave., Flagstaff, Ariz., 193 Ariz. 1, 2 (App.
1997). Accordingly, Laura is not a party to this appeal.

2 This court considers the evidence in a light most favorable to supporting
the forfeiture order. See In re U.S. Currency in Amount of $26,980.00, 199 Ariz.
291, 293 ¶ 2 (App. 2000).



                                       2
                             STATE v. BANDA
                            Decision of the Court

officers also discovered two guns in the back seat of Banda’s vehicle and
three guns outside of the vehicle. The officers confiscated the pipe, drugs,
cash, ledgers and guns. A police dog alerted for the presence and odor of
narcotics on the cash.

¶5             In May 2014, the State filed a notice of seizure for forfeiture
and notice of pending forfeiture. See Ariz. Rev. Stat. (A.R.S.) § 13-4307
(2016).3 In June 2014, the State filed and served on Banda a complaint
seeking civil in rem forfeiture of the cash and guns and related ammunition
(collectively, the Property). See A.R.S. §§ 13-4301 to -4315; see also A.R.S. §
13-2314(G) (authorizing in rem forfeiture of proceeds traceable to specified
criminal offenses).

¶6              Banda unsuccessfully moved to dismiss, arguing the State’s
notice of forfeiture was not timely under A.R.S. § 13-4308(B). After motion
practice and disclosure, the court held an evidentiary hearing in September
2015. At that hearing, various law enforcement officers testified, Banda and
his wife testified, the court heard arguments and then took the matter under
advisement.

¶7            In November 2015, the court found the State proved by a
preponderance of the evidence that the Property was subject to forfeiture,
that Banda failed to establish that his interest in the Property was exempt
from forfeiture under A.R.S. § 13-4304 and that all rights, title and interest
in the Property was forfeited to the State. This court has jurisdiction over
Banda’s timely appeal from that final judgment pursuant to the Arizona
Constitution, Article 6, Section 9, and A.R.S. § 12-120.21(A)(1) and –
2101(A)(1).

                               DISCUSSION

¶8              Banda’s opening brief fails to comply with the Arizona Rules
of Civil Appellate Procedure (ARCAP). “Opening briefs must present and
address significant arguments, supported by authority that set forth the
appellant’s position on the issue in question.” Ritchie v. Krasner, 221 Ariz.
288, 305 ¶ 62 (App. 2009). An opening brief must include appropriate
references to the record as well as the authorities relied upon. ARCAP
13(a)(4), (5), (7). Failure to properly raise an argument on appeal, in most


3Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.




                                      3
                             STATE v. BANDA
                            Decision of the Court

cases, results in abandonment and waiver of that argument. See Schabel v.
Deer Valley Unified Sch. Dist. No. 97, 186 Ariz. 161, 167 (App. 1996).4

¶9             Banda also failed to provide this court a transcript of the
evidentiary hearing, which constitutes another form of waiver. See Cullison
v. City of Peoria, 120 Ariz. 165, 168 n.2 (1978) (noting, where appellant did
not provide the relevant transcript, appellate court is “unable to give any
consideration to appellant’s attempt to recite the events which occurred
during the course of the preliminary hearing”) (citations omitted); see also
ARCAP 11(b) (addressing procedure for transcripts on appeal). “[W]here
an incomplete record is presented to an appellate court, the missing
portions of that record are to be presumed to support the action of the trial
court.” Cullison, 120 Ariz. at 168 n.2; accord Baker v. Baker, 183 Ariz. 70, 73
(App. 1995).

¶10           Banda argues (1) the “evidence presented” did not support
the forfeiture finding in various ways, including that the State “had no
proof” supporting forfeiture and that Banda had “receipts that prove [] that
a portion of the money was for work materials” and (2) “[t]he [trial] was
approached in an unfair manner,” including the failure to advise him of his
rights under Miranda v. Arizona, 384 U.S. 436 (1966). Banda also argues
“half-way through the [trial] the detective inquired about my race,” causing
a change in “the demeanor of the detective and judge” and that the court
apparently “did not allow all of the evidence [he sought to present] to be
presented.”

¶11            All of these arguments implicate the record at the evidentiary
hearing. Given Banda’s failure to provide the transcript from that hearing,
however, this court assumes that record supports the judgment. See, e.g.,
Cullison, 120 Ariz. at 168 n.2; Baker, 183 Ariz. at 73. For these same reasons,
Banda has not shown how the superior court erred in rejecting exhibits that
he offered at the hearing.




4 Although Banda’s reply on appeal was untimely, ARCAP 15(a)(3), this
court has considered the legal arguments in that filing. The unsworn
handwritten statements attached to that reply, however, do not comply
with Ariz. R. Civ. P. 80(i) and were not presented to the superior court and,
accordingly, are not considered on appeal. Brown Wholesale Elec. Co. v. Safeco
Ins. Co. of Am., 135 Ariz. 154, 158 (App. 1982) (“Matters not presented to the
trial court cannot for the first time be raised on appeal.”) (citations omitted).



                                       4
                            STATE v. BANDA
                           Decision of the Court

¶12            Finally, Banda argues that “[d]uring the [trial] it was made
apparent that my Miranda Rights were not read to me.” Banda, however,
did not provide the transcript from the hearing and that failure means the
transcript is assumed to support the judgment. See Cullison, 120 Ariz. at 168
n.2; Baker, 183 Ariz. at 73. Moreover, the record provided on appeal includes
State’s Exhibit 1, received in evidence without objection, reflecting notes
from an interview of Banda, adding “Prior to asking him any questions, I
read him [Banda] his rights. [Banda] said he understood his rights and
agreed to answer my questions.” And Banda’s reply on appeal states he
“was cooperating with the police because I had nothing to hide.” On this
record, Banda has shown no Miranda error.

                              CONCLUSION

¶13          Because Banda has shown no error, the judgment is affirmed.




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA




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