MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                              FILED
Memorandum Decision shall not be regarded as                        Jun 09 2017, 8:44 am
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,                     CLERK
                                                                     Indiana Supreme Court
collateral estoppel, or the law of the case.                            Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANTS                                   ATTORNEYS FOR APPELLEES
DEONTA ANDERSON, KORJONTA                                 Curtis T. Hill, Jr.
ANDERSON, AND BEONICA                                     Attorney General of Indiana
JOHNSON-GRANT                                             Andrea E. Rahman
Steven C. Smith                                           Deputy Attorney General
Anderson, Indiana                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

$3,941 in US Currency,                                   June 9, 2017

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         48A02-1607-MI-1564
        and,                                             Appeal from the Madison Circuit
Deonta Anderson, Korjonta                                Court.
                                                         The Honorable David A. Happe,
Anderson, and Beonica Johnson-                           Judge.
Grant,                                                   Trial Court Cause No.
                                                         48C04-1509-MI-1003
Appellants-Interested Parties,

        v.

Rodney Cummings, Prosecuting
Attorney for the 50th Judicial
Circuit for the State of Indiana,
Appellees-Plaintiffs.




Friedlander, Senior Judge

Court of Appeals of Indiana | Memorandum Decision 48A02-1607-MI-1564| June 9, 2017           Page 1 of 11
                                                                                                  1
[1]   Deonta Anderson, Korjonta Anderson, and Beonica Johnson-Grant (Deonta

      and Korjonta’s mother) appeal from the trial court’s judgment granting the

      State’s complaint for civil forfeiture of money seized from Deonta after his

      arrest. We affirm.


[2]   On September 22, 2015, Iahjhay Cloyd and Deonta were at Vanity Branson’s

      house where they smoked marijuana. Later that evening, Deonta and Cloyd

      left Branson’s home an unknown number of times, and each time they left,

      Deonta took a gun along with him. They slept at Branson’s house—Cloyd in

      the living room while Deonta stayed in Branson’s room, leaving the gun on the

      floor.


[3]   The next morning, Deonta left the house, taking the gun with him. Officers

      had received a tip regarding the possible location of a stolen police tactical bag

      containing a rifle, over a hundred rounds of ammunition, a ballistic vest, a

      ballistic helmet, and other tactical gear used by police. Two officers with the

      Anderson City Police Department were conducting surveillance on Branson’s

      home based on that tip. They observed Branson leave and return to the

      apartment. As she was leaving her apartment for the second time, she was

      passed by a vehicle occupied by Deonta and Cloyd. After they parked the car

      and went inside the apartment, Branson parked her car and went inside.




      1
       Beonica participated in the trial court proceedings because she was Deonta and Korjonta’s mother and
      guardian, but did not technically qualify as an interested party having no personal claim to the money.

      Court of Appeals of Indiana | Memorandum Decision 48A02-1607-MI-1564| June 9, 2017              Page 2 of 11
[4]   About ten to fifteen minutes later, the officers knocked on the door asking if

      Malachi Braxton was inside. During the nearly ten to fifteen minutes between

      the time the officers started knocking on the door and when Branson finally

      answered, she saw Cloyd holding a plastic bag with a white, powdery substance

      inside in plain view of anyone in the house. Cloyd also asked Branson if she

      would secrete the bags to hide the drugs. Branson declined and answered the

      door. As she walked to the door, Cloyd was standing in the hallway with a bag

      containing a clump of white powder, and Deonta was in the back room.


[5]   When Branson opened the door, the officers smelled a very strong odor of burnt

      marijuana coming from inside the apartment. They then began investigating

      possible drug use and placed Branson in custody. Cloyd, who was agitated and

      belligerent, walked toward the officers, who then placed him in custody.

      During a search, officers discovered a small, black digital scale with white

      powder on it in the front pocket of Cloyd’s pants. Branson told officers that

      Deonta was also in the house. Because the officers were concerned there might

      be a stolen rifle inside the house, they ordered Deonta to slowly crawl out of the

      back room so officers could see his hands. After Deonta had done so, officers

      placed him in custody.


[6]   Officers obtained a warrant to search Branson’s house for the stolen rifle, drugs

      or paraphernalia, or any currency that might be found. After executing the

      warrant, officers found a gun tucked between the mattress and box spring of the

      bed in the room where Branson and Deonta slept. Before officers said anything

      about this discovery, Deonta volunteered that Branson had a handgun permit.

      Court of Appeals of Indiana | Memorandum Decision 48A02-1607-MI-1564| June 9, 2017   Page 3 of 11
      In a shoebox in Branson’s closet, they discovered two plastic bags with a white,

      hardened rock substance in each. One bag contained one clump of the white

      substance, and the second bag contained nineteen individually wrapped plastic

      bags all about the same size and shape. Subsequent testing revealed that the

      white substance was cocaine.


[7]   When Deonta was searched, officers found cash in his front pocket. He was

      transported to the police station and placed in an interview room. Another

      more thorough search of Deonta led to the discovery of more cash hidden in his

      underwear and stuffed inside the rolled cuff at the bottom of his sweatpants. In

      sum, Deonta was carrying roughly $3,900. He was placed under arrest on three

      outstanding warrants.


[8]   The State filed a complaint for civil forfeiture, stating that the $3,941 seized

      from Deonta was “intended for use in the course of, derived from, or realized

      through” Deonta’s corrupt enterprise and pattern of racketeering activity—

      dealing in cocaine. Appellants’ App. p. 7. The trial court initially granted a

      default judgment against Deonta, but the judgment was later vacated once

      Deonta filed a response and sought return of the seized cash. Deonta, by

      counsel, filed an appearance and answer. The State filed a motion for contempt

      due to a breakdown in the discovery process. Deonta appeared with counsel at

      the hearing and testified so the State could obtain the outstanding discovery

      responses from him. Deonta testified that the money confiscated from him

      belonged to his brother, Korjonta, who had given him the money to buy a car



      Court of Appeals of Indiana | Memorandum Decision 48A02-1607-MI-1564| June 9, 2017   Page 4 of 11
       for him since at that time Korjonta was a minor. The trial court did not find

       Deonta to be in contempt and the matter was scheduled for a bench trial.


[9]    At the bench trial, Deonta, Korjonta, and Beonica each appeared. After

       Korjonta entered his appearance, the trial court dismissed the default judgment

       entered against him. Korjonta and Beonica testified that the cash seized from

       Deonta was part of the proceeds from a settlement reached in early 2014 after

       Korjonta’s automobile accident. Of his $10,000 portion of the settlement,

       Korjonta claimed that he had saved $5,000, which was hidden at home, and,

       just before Deonta’s arrest, had given the other $5,000 to his mother to give to

       Deonta for the purchase of a car. He stated that the price of the car was $5,200.


[10]   Beonica testified that she had given $3,941 of the settlement money to Deonta

       just days before his arrest in late September 2015 to use to purchase a car for

       Korjonta. She claimed that she had an additional $1,500 set aside for the

       purchase. Her testimony on cross-examination about the family’s income and

       expenditures reflected a negative cash flow. She also testified that she spent

       approximately $1,000 of the settlement money on a shopping spree for Korjonta

       after they received the funds.


[11]   The trial court issued an order granting the State’s forfeiture complaint for

       $3,941 in U.S. currency. The trial court then issued an amended order stating

       that the amount of money seized and forfeited was $3,911 in U.S. currency.

       Deonta, Korjonta, and Beonica filed a motion to correct error, taking issue with

       the trial court’s statement that the three had been served with process at least


       Court of Appeals of Indiana | Memorandum Decision 48A02-1607-MI-1564| June 9, 2017   Page 5 of 11
       twenty days before the entry of final judgment. They also claimed that there

       was insufficient evidence to show a link between the money seized and a

       pattern of racketeering activity. The trial court denied the motion and this

       appeal followed.


[12]   As an initial matter, Deonta, Korjonta, and Beonica appeared at the contempt

       hearing, which was converted to a discovery hearing, and at the bench trial with
                         2
       their attorney, presenting their evidence. For the first time, in his motion to

       correct error, and now again on appeal, Deonta complains of the trial court’s

       finding that service of process was made more than twenty days prior to the

       entry of judgment, claiming that the finding is inaccurate. When a party fails to

       notify the court of such a defect, the issue is waived, especially when a party

       participates in the proceeding, complaining only after an adverse result is

       reached. Enderle v. Sharman, 422 N.E.2d 686 (Ind. Ct. App. 1981).


[13]   Deonta, Korjonta, and Beonica challenge the sufficiency of the evidence

       supporting the order, claiming that the State failed to prove that the seized

       money was used as part of a pattern of racketeering activity. The State was

       required to prove its case by a preponderance of the evidence. Ind. Code § 34-

       24-1-4(a) (2002). On appellate review, we consider the evidence most favorable

       to the judgment along with reasonable inferences, neither reweighing evidence




       2
        An appearance was filed for Deonta and Korjonta, named interested parties. When Beonica testified,
       counsel lodged objections and asserted privileges on her behalf.

       Court of Appeals of Indiana | Memorandum Decision 48A02-1607-MI-1564| June 9, 2017           Page 6 of 11
       nor reassessing the credibility of witnesses. $100 and a Black Cadillac v. State, 822

       N.E.2d 1001 (Ind. Ct. App. 2005), trans. denied.


[14]   The forfeiture statute provides that the county prosecutor of the county in

       which property is located can bring a forfeiture action of any property used in

       the course of, intended for use in the course of, derived from, or realized

       through corrupt business influence or other misconduct. Ind. Code § 34-24-2-2

       (2005). The statutory definition of corrupt business influence refers to a person

       employed by or associated with an enterprise and who knowingly or

       intentionally conducts or otherwise participates in the activities of that

       enterprise through a pattern of racketeering activity. Ind. Code § 35-45-6-2(3)
                                                     3
       (2014). Racketeering activity includes the commission of, or attempt to

       commit, to conspire to commit a violation of, or aiding and abetting in a

       violation of any number of crimes including dealing in or manufacturing
                                                 4
       cocaine or a narcotic drug, and dealing in a schedule I, II, or III controlled
                       5                                                          6
       substance. Cocaine is a schedule II controlled substance. Indiana Code

       section 35-45-6-1(d) defines pattern of racketeering activity as occurring when

       one engages in at least two incidents of racketeering activity that have the same

       or similar intent, result, accomplice, victim, or method of commission, or that




       3
           Ind. Code § 35-45-6-1(e)(28),(30) (2014).
       4
           Ind. Code § 35-48-4-1 (2014).
       5
           Ind. Code § 35-48-4-2 (2014).
       6
           Ind. Code § 35-48-2-6(b)(4) (2013).


       Court of Appeals of Indiana | Memorandum Decision 48A02-1607-MI-1564| June 9, 2017   Page 7 of 11
       are otherwise interrelated by distinguishing characteristics that are not isolated

       incidents.


[15]   The record reflects that the State proved by a preponderance of the evidence

       that Deonta participated in a pattern of racketeering activity by aiding and

       abetting or conspiring in dealing in cocaine or dealing in a schedule II

       controlled substance. Deonta was in possession of nearly $4,000, which was in

       different denominations than that described by Korjonta and Beonica. Instead

       of being wrapped together and secured by a band as Korjonta testified, some of

       the money was found in Deonta’s front pocket, some in his underwear, and the

       rest was found in a cuff of his sweatpants.


[16]   Branson, the owner of the house, testified that Deonta and Cloyd left and

       returned to the house numerous times during the evening before their arrest.

       Each time Deonta left, he took a gun with him. When they returned for the

       final time that evening, Deonta slept in Branson’s room, leaving the gun on the

       floor of the bedroom.


[17]   The next morning, officers who were conducting surveillance of Branson’s

       home, observed Branson come and go, and observed Deonta and Cloyd leave

       and return. As they returned, they gave a hand signal to Branson, who was

       about to leave the house again. The three then went inside. Fifteen minutes

       after officers knocked on the door of the house, Branson answered the door.

       Deonta was in the back room and Cloyd was near the front of the house.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1607-MI-1564| June 9, 2017   Page 8 of 11
       Before opening the door, Branson observed Cloyd carrying, in plain view of

       anyone in the house, a bag containing a white, rock-like substance.


[18]   When officers placed Deonta in custody, they discovered some of the money.

       When they placed Cloyd in custody they discovered in his front pocket a small,

       black, digital scale with a white powdery substance on it. They found the

       handgun between the mattress and box spring of the bed where Deonta slept.

       Deonta volunteered, before officers could make a reference to the discovery,

       that Branson had a permit to carry a handgun. Officers also found in Branson’s

       room, hidden in a shoe box in a closet, two bags containing what was later

       determined to be cocaine. One of the bags contained nineteen individually-

       wrapped bags of cocaine, each about the same size and shape, while the other

       contained a rock of cocaine. The amount of cocaine found, forty grams, was

       indicative of the sale of cocaine, not personal use.


[19]   Deonta presented his explanation of his possession of the money and attempted

       to support his claim to the seized funds. Korjonta’s and Beonica’s testimony

       differed in several respects, casting doubt on their claim to the money. Further,

       Beonica’s testimony about her income and expenses also called into question

       Deonta’s and Korjonta’s claim to the money and their contention that it was

       not connected to racketeering activity. There was sufficient evidence to support

       the trial court’s judgment.


[20]   Next, Deonta, Korjonta, and Beonica present a brief argument that the civil

       forfeiture action may violate the Excessive Fines Clause of the Eighth


       Court of Appeals of Indiana | Memorandum Decision 48A02-1607-MI-1564| June 9, 2017   Page 9 of 11
       Amendment. We recently discussed the Excessive Fines Clause in the context

       of civil forfeiture actions in State v. Timbs, 62 N.E.3d 472 (Ind. Ct. App. 2016), a

       case in which transfer was granted and oral argument was heard by the

       Supreme Court. The Court’s decision is pending. Caselaw holds that review of

       whether a fine or forfeiture is excessive, we must consider if the amount of the

       forfeiture bears some relationship to the gravity of the offense for which it is

       designed to punish. $100, 822 N.E.2d 1001 (quoting United States v. Bajakajian,

       524 U. S. 321, 118 S. Ct. 2028, 141 L. Ed. 2d. 314 (1998)). A forfeiture is

       punitive and violates the clause if it is grossly disproportional to the gravity of

       the offense. Id.


[21]   Although the constitutional issue is waived for failure to raise it first at trial, and

       by failing to support it on appeal with cogent argument, we observe that dealing

       in cocaine in the amount at issue here would constitute a Level 2 felony. Ind.

       Code § 35-48-4-1(e) (2014). While conspiring to commit a crime is a separate

       offense, requiring proof of additional elements, it is a felony of the same level as

       the underlying felony. Coleman v. State, 952 N.E.2d 377 (Ind. Ct. App. 2011);

       Ind. Code § 35-41-5-2 (2014). Also, one can be charged as a principal if the

       evidence shows only that the defendant aided or abetted the actual perpetrator.

       Coleman, 952 N.E.2d 377. The fine that could be imposed for a Level 2 felony

       is set at a maximum of $10,000. Because the amount seized here falls well

       short of the statutory maximum that could be imposed for the criminal activity,

       we find that it is not excessive.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1607-MI-1564| June 9, 2017   Page 10 of 11
[22]   Deonta, Korjonta, and Beonica also argue that the forfeited money should have

       been deposited in the Common School fund. Indiana Code section 34-24-1-4

       (d)(2)(D) provides that any excess money seized by the State over law

       enforcement costs is directed to be transferred to the state treasurer for deposit

       in the common school fund. The case cited as support for reversal, Serrano v.

       State, 946 N.E.2d 1139 (Ind. 2011), however, observes that the trial court may

       except law enforcement expenses incurred for the criminal investigation

       associated with the seizure. See Ind. Code § 34-6-2-73 (1998) (law enforcement

       expenses include costs of criminal investigation associated with seizure,

       repayment of investigative fund of law enforcement agency making seizure, and

       expenses of prosecuting attorney for proceedings associated with the seizure

       and the offenses leading). We find no error in the trial court’s distribution of

       the seized funds.


[23]   Judgment affirmed.


       Bailey, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1607-MI-1564| June 9, 2017   Page 11 of 11
