                                                                                  FILED
                                                                             May 19 2017, 10:10 am

                                                                                  CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Stephen Gerald Gray                                       Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana
                                                          Frances Barrow
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Edgar Ariel Gonzalez,                                     May 19, 2017
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          33A04-1612-MI-2807
        v.                                                Appeal from the Henry Circuit
                                                          Court
State of Indiana and Pace Team,                           The Honorable Bob A. Witham,
Appellees-Plaintiffs.                                     Judge
                                                          Trial Court Cause No.
                                                          33C01-1602-MI-10



Bailey, Judge.




Court of Appeals of Indiana | Opinion 33A04-1612-MI-2807 | May 19, 2017                     Page 1 of 9
                                               Case Summary
[1]   Edgar Ariel Gonzalez (“Gonzalez”) pled guilty to Possession of Marijuana, as

      a Class B misdemeanor.1 The State filed civil proceedings and obtained

      forfeiture of $810.00 in Gonzalez’s pocket at the time of his arrest. Gonzalez

      appeals, presenting the sole issue of whether the State presented sufficient

      evidence to support the trial court’s forfeiture order. We reverse.



                                 Facts and Procedural History
[2]   On January 25, 2016, Hancock County Sheriff’s Deputy Nicholas Ernstes

      (“Deputy Ernstes”) was on duty as part of a drug interdiction team patrolling

      traffic eastbound on I-70 in Henry County, Indiana. Deputy Ernstes observed a

      “substantially dirty” vehicle following too close to another vehicle. (Tr. at 8.)

      He received a “wanted/stolen hit on the license plate” 2 and initiated a traffic

      stop. (Tr. at 10.)


[3]   As Deputy Ernstes approached the vehicle, he smelled the odor of marijuana.

      He asked for vehicle registration and identification from the four occupants of

      the vehicle. When Gonzalez opened a glove box to retrieve the rental

      agreement for the vehicle, Deputy Ernstes observed a plastic item that he

      recognized as a marijuana dispensary container. He also observed marijuana




      1
          Ind. Code § 35-48-4-11(a).
      2
          The “hit” was later determined to be in error.


      Court of Appeals of Indiana | Opinion 33A04-1612-MI-2807 | May 19, 2017    Page 2 of 9
      residue throughout the vehicle. There appeared to be tool marks on the center

      console, and Deputy Ernstes suspected that there had been tampering.


[4]   Deputy Ernstes and back-up officers removed the vehicle occupants, searched

      them, and pried open the center console to look beneath it. In the area

      underneath the center console, an area typically left void, the officers

      discovered a substance that, to Deputy Ernstes, smelled like heroin. Deputy

      Ernstes observed that the substance changed color, appearing to test positive for

      heroin, after another officer subjected it to field testing.


[5]   It was discovered that the driver had rented the vehicle, one of the passengers

      had cocaine in her purse, and another passenger had secreted cocaine in her

      body. Each of the foregoing pled guilty to a felony related to possession of a

      narcotic. Gonzalez pled guilty to Possession of Marijuana, as a Class B

      misdemeanor.


[6]   On February 1, 2016, the State filed a Complaint for Forfeiture alleging that

      $810.00 had been seized from Gonzalez on January 25, 2016, and further

      alleging:

              Said currency had been furnished or was intended to be furnished
              in exchange for a violation of a criminal statute, or used to
              facilitate any violation of a criminal statute or is traceable as
              proceeds of the violation of a criminal statute under Indiana law,
              as provided in I.C. 34-24-1.




      Court of Appeals of Indiana | Opinion 33A04-1612-MI-2807 | May 19, 2017    Page 3 of 9
      (App. at 8.) On November 23, 2016, a bench trial was conducted. On

      November 30, 2016, the trial court entered a judgment of forfeiture. This

      appeal ensued.



                                 Discussion and Decision
                                        Standard of Review
[7]   In reviewing the sufficiency of the evidence in a civil case, such as this, we

      consider only the evidence most favorable to the judgment and any reasonable

      inferences that may be drawn therefrom. Lipscomb v. State, 857 N.E.2d 424, 427

      (Ind. Ct. App. 2006). We neither reweigh the evidence nor assess the credibility

      of the witnesses. Id. When there is substantial evidence of probative value to

      support the trial court’s ruling, it will not be disturbed. Id. We will reverse only

      when we are left with a definite and firm conviction that a mistake has been

      made. Id.


                                                   Analysis
[8]   “Civil forfeiture is a device, a legal fiction, authorizing legal action against

      inanimate objects for participation in alleged criminal activity, regardless of

      whether the property owner is proven guilty of a crime – or even charged with a

      crime.” Serrano v. State, 946 N.E.2d 1139, 1140 (Ind. 2011). To obtain the right

      to dispose of property, use the property, or recover law enforcement costs, the

      State must demonstrate by a preponderance of the evidence that the property

      was subject to seizure. I. C. § 34-24-1-4(a); Serrano, 946 N.E.2d at 1142-43.


      Court of Appeals of Indiana | Opinion 33A04-1612-MI-2807 | May 19, 2017      Page 4 of 9
       The State must establish a nexus between the property and the commission of

       an offense; this ‘“requires more than an incidental or fortuitous connection

       between the property and the underlying offense.”’ Id. at 1143 (quoting Katner

       v. State, 655 N.E.2d 345, 348-49 (Ind. 1995).


[9]    Forfeitures of money are governed by Indiana Code Section 34-24-1-1(a)(2),

       which provides in relevant part for the forfeiture of:


               All money …


                    (A) furnished or intended to be furnished by any person in
                       exchange for an act that is in violation of a criminal
                       statute;


                    (B) used to facilitate any violation of a criminal statute; or


                    (C) traceable as proceeds of the violation of a criminal statute.


[10]   Additionally, subsection (d) establishes a “rebuttable presumption” concerning

       money used or that was to have been used to facilitate certain offenses.

       Lipscomb, 857 N.E.2d at 427-28. Indiana Code Section 34-24-1-1(d) provides:


               Money … found near or on a person who is committing,
               attempting to commit, or conspiring to commit any of the
               following offenses shall be admitted into evidence in an action
               under this chapter as prima facie evidence that the money,
               negotiable instrument, security, or other thing of value is
               property that has been used or was to have been used to facilitate
               the violation of a criminal statute or is the proceeds of the
               violation of a criminal statute:


       Court of Appeals of Indiana | Opinion 33A04-1612-MI-2807 | May 19, 2017       Page 5 of 9
               (1) IC 35-48-4-1 (dealing in or manufacturing cocaine or a
                   narcotic drug).


               (2) IC 35-48-4-1.1 (dealing in methamphetamine).


               (3) IC 35-48-4-2 (dealing in a schedule I, II, or III controlled
                   substance).


               (4) IC 35-48-4-3 (dealing in a schedule IV controlled substance).


               (5) IC 35-48-4-4 (dealing in a schedule V controlled substance) as
                   a Level 4 felony.


               (6) IC 35-48-4-6 (possession of cocaine or a narcotic drug) as a
                   Level 3, Level 4, or Level 5 felony.


               (7) IC 35-48-4-6.1 (possession of methamphetamine) as a Level 3,
                   Level 4, or Level 5 felony.


               (8) IC 35-48-4-10 (dealing in marijuana, has oil, hashish, or
                   salvia) as a Level 5 felony.


               (9) IC 35-48-4-10.5 (dealing in a synthetic drug or synthetic drug
                   lookalike substance) as a Level 5 felony or Level 6 felony (or
                   as a Class C felony or Class D felony under IC 35-48-4-10
                   before its amendment in 2013).


[11]   Because forfeitures have significant criminal and punitive characteristics, they

       are not favored and should be enforced only in accordance with “both the letter

       and spirit of the law.” Hughley v. State, 15 N.E.3d 1000, 1005 (Ind. 2014).




       Court of Appeals of Indiana | Opinion 33A04-1612-MI-2807 | May 19, 2017      Page 6 of 9
[12]   Gonzalez was charged with and pled guilty to Possession of Marijuana, as a

       Class B misdemeanor. This does not constitute the commission of, attempt to

       commit, or conspiracy to commit, any of the nine enumerated offenses of

       Indiana Code Section 34-24-1-1(d). Consequently, the presumption did not

       apply based upon Gonzalez’s underlying offense.3 The State was required to

       prove by a preponderance of the evidence that the money was “(A) furnished or

       intended to be furnished by any person in exchange for an act that is in

       violation of a criminal statute; (B) used to facilitate any violation of a criminal

       statute; or (C) traceable as proceeds of the violation of a criminal statute.” I. C.

       § 34-24-1-1(a)(2). It appears that, without explicitly saying so, the State sought

       to demonstrate that Gonzalez conspired with others to deal in narcotics.


[13]   The record indicates that Gonzalez violated a criminal statute; he possessed

       marijuana. However, the State did not produce any evidence that the cash

       found in Gonzalez’s pants pocket was in any way connected to his commission

       of that crime. Instead, the State focused upon the acts giving rise to the




       3
         In the Complaint for Forfeiture, the State alleged, consistent with the language of Indiana Code Section 34-
       24-1-1(a)(2), that Gonzalez possessed currency furnished or intended to be furnished in exchange for a
       violation of “a criminal statute,” used to facilitate any violation of “a criminal statute,” or traceable as
       proceeds of the violation of “a criminal statute.” (App. at 8.) The State did not move to amend the
       complaint of forfeiture, make an opening statement, or otherwise specify what crime Gonzalez allegedly
       facilitated with his currency before the evidence concluded. The State requested that the trial court take
       judicial notice of Gonzalez’s misdemeanor conviction and the felony convictions of the three non-parties.
       Thereafter, in closing argument, the State argued that it was entitled to a statutory presumption of facilitation
       because of crimes “relevant to this case,” that is, “dealing or manufacturing of a narcotic drug” or
       “possession of cocaine or a narcotic drug.” (Tr. at 46.) The forfeiture order does not indicate that the trial
       court relied upon a presumption. Nonetheless, the State offered no authority for the proposition that its
       burden of proof for forfeiture may be met by producing evidence in a civil proceeding of a criminal
       conviction of one other than the owner of the property to be forfeited.

       Court of Appeals of Indiana | Opinion 33A04-1612-MI-2807 | May 19, 2017                               Page 7 of 9
       convictions of other persons, apparently under the theory that “the underlying

       offense” connected to the currency was a conspiracy to deal narcotics. “A

       material element of conspiracy is the unified or concerted action of two or more

       persons.” Lane v. State, 259 Ind. 468, 470, 288 N.E.2d 258, 259 (1972).


[14]   The State presented evidence as follows: the driver of the detained vehicle had

       rented it; after the center console was pried open, officers found a substance that

       changed color during field testing – consistent with a positive test for heroin;

       one passenger had cocaine in her purse; one passenger had cocaine secreted in

       her body. When the vehicle occupants were taken into custody, Gonzalez

       stated that he didn’t know the trip destination but affirmed an officer’s

       statement that a telephone call was anticipated. He suggested that he might be

       able to obtain helpful information if officers allowed him to speak with the

       others. The driver and female passengers pled guilty to felony narcotics

       charges; Gonzalez did not.


[15]   There is no evidence that Gonzalez signed a contract for the rental vehicle or

       contributed any funds toward the rental. It is not known under what

       circumstances Gonzalez became a passenger in the vehicle or to what degree

       anyone shared information with him, beyond the expectation of a telephone

       call. There is no evidence that he was aware of the hidden compartment in the

       rented vehicle or the substance stored therein. There is no evidence that he

       knew one passenger had cocaine in her purse or that another passenger had

       cocaine on her body. There is no evidence, physical or testimonial, that

       Gonzalez ever procured, touched, or used the contraband found in the vehicle.

       Court of Appeals of Indiana | Opinion 33A04-1612-MI-2807 | May 19, 2017     Page 8 of 9
       In short, there is a lack of evidence that Gonzalez was a co-conspirator with the

       other vehicle occupants or that his money facilitated their offenses.


[16]   In the absence of a criminal conviction other than misdemeanor possession of

       marijuana, and the absence of evidence that Gonzalez committed an additional

       offense, the State simply urged the trial court to infer from Gonzalez’s presence

       in the vehicle that he was a co-conspirator. The inference to be drawn from his

       proximity to contraband does not go beyond that which would be merely

       “incidental or fortuitous.” Serrano, 946 N.E.2d at 1143. Without the

       establishment of a nexus between Gonzalez’s currency and an underlying

       offense, the civil forfeiture order is outside the “letter and spirit of the law.”

       Hughley, 15 N.E.3d at 1005. Lacking the requisite proof, the forfeiture order

       must be reversed.


[17]   Reversed.


       Vaidik, C.J., and Robb, J., concur.




       Court of Appeals of Indiana | Opinion 33A04-1612-MI-2807 | May 19, 2017       Page 9 of 9
