                                                                                FILED
                                                                            Jul 11 2019, 8:08 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




ATTORNEY FOR APPELLANTS                                     ATTORNEYS FOR APPELLEE
Ross G. Thomas                                              Curtis T. Hill, Jr.
Indianapolis, Indiana                                       Attorney General of Indiana
                                                            Justin F. Roebel
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana



                                             IN THE
     COURT OF APPEALS OF INDIANA

Robert R. Coulter, III and Kerri                            July 11, 2019
E. Coulter,,                                                Court of Appeals Case No.
Appellants-Respondents,                                     18A-MI-957
                                                            Appeal from the Rush Superior
        v.                                                  Court
                                                            The Honorable Brian Hill, Judge
Philip J. Caviness, Rush County                             Trial Court Cause No.
Prosecutor, on behalf of State of                           70D01-1611-MI-358
Indiana,
Appellee-Petitioner.



Riley, Judge.




Court of Appeals of Indiana | Opinion 18A-MI-957 | July 11, 2019                                    Page 1 of 16
                                 STATEMENT OF THE CASE
[1]   Appellants-Respondents, Robert Coulter III (Coulter) and Kerri Coulter (Kerri)

      (collectively, the Coulters), appeal from the trial court’s grant of summary

      judgment in favor of Appellee-Petitioner, Rush County Prosecutor Philip

      Caviness (Caviness), on his Complaint for civil forfeiture.


[2]   We affirm in part, reverse in part, remand for further proceedings, and remand

      for entry of summary judgment.


                                                      ISSUE
[3]   The Coulters present us with three issues on appeal, which we consolidate and

      restate as: Whether the trial court properly granted summary judgment in favor

      of Caviness on his Complaint for civil forfeiture of the Coulters’ property.


                       FACTS AND PROCEDURAL HISTORY
[4]   On October 3, 2016, Detective Alex Shaver (Detective Shaver) of the Rushville

      Police Department was contacted by an employee of the Rushville branch of

      Wells Fargo Bank on a report that Coulter had come to the bank that morning

      and exchanged $9,000 in $20 bills for $100 bills. The currency Coulter

      exchanged emitted a strong odor that Detective Shaver recognized as that of

      raw marijuana. Detective Shaver was also aware through his training and

      experience as a narcotics investigator that $20 bills are the most common unit

      of currency used in narcotics transactions. Detective Shaver retrieved

      surveillance camera footage from the bank showing Coulter arriving at the bank

      that morning in his black Chevrolet pickup truck.
      Court of Appeals of Indiana | Opinion 18A-MI-957 | July 11, 2019         Page 2 of 16
[5]   On October 4, 2016, Detective Shaver retrieved the Coulters’ trash after they

      had set it outside of their home for collection. A search of the trash netted mail

      belonging to Kerri, marijuana stems, leaves and seeds, and a large pair of

      scissors with marijuana plant and residue on it. Detective Shaver applied for

      and was granted a search warrant for the Coulters’ home. On October 4, 2016,

      the warrant was executed. Officers found Coulter and Kerri at home with their

      minor children. After having been provided with his Miranda advisements,

      Coulter was asked if there was anything illegal in the home and was asked to

      show them where the marijuana was. Coulter replied, “Everything is in the

      safe.” (Appellants’ App. Vol. II, p. 35).


[6]   Coulter directed the officers to the first-floor master bedroom closet, where a

      safe was located. In the safe, the officers found a gym bag containing three and

      one-half pounds of marijuana, some of which was packaged in smaller bags,

      two digital scales, two boxes of Ziplock baggies, six cell phones, and a pill bottle

      containing marijuana seeds. Also found in the safe was $22,907 in cash, a Dell

      laptop computer, and a Nikon camera. Further search of the master bedroom

      yielded a handwritten ledger and a Toshiba laptop computer that were both

      located on top of a desk. In an upstairs bedroom which was being used by

      Kerri’s brother, the officers found in a dresser a box with the brother’s name on

      it, drug use paraphernalia, and a bag of marijuana. In the upstairs bedroom the

      officers also located a Ruger rifle. Evidence of a marijuana growing operation

      was located in the Coulters’ garage, including starter trays, potting soil,

      fertilizer, a tarp with trimmed marijuana leaves on it, and a large drum


      Court of Appeals of Indiana | Opinion 18A-MI-957 | July 11, 2019           Page 3 of 16
      containing marijuana clippings. Coulter’s black Chevrolet truck, the $22,907 in

      cash, the two laptops, the Nikon camera, and the rifle found in the upstairs

      bedroom were seized as part of the criminal investigation.


[7]   Coulter was transported to the Rush County jail, where he was interviewed by

      Detective Shaver. Coulter admitted that he had been growing marijuana for

      eighteen years and that he had recently harvested a crop that he had grown in

      an open field close to his home. Coulter also admitted that he went to

      Indianapolis once every two weeks to purchase one-to-two pounds of

      marijuana. Coulter had approximately 130 customers and estimated that he

      generated an income of $800 per week dealing marijuana.


[8]   On October 7, 2016, the State filed an Information, charging Coulter with

      corrupt business influence, a Level 5 felony; dealing in marijuana, a Level 6

      felony; maintaining a common nuisance, a Level 6 felony; and possession of

      marijuana, a Class B misdemeanor. On October 18, 2017, Coulter pleaded

      guilty to dealing in marijuana as a Level 6 felony. In exchange, the plea

      agreement provided that Coulter would receive a two-year sentence, all

      suspended to probation. In addition, all other charges pending against Coulter

      and Kerri were dismissed. On the same day, the trial court accepted Coulter’s

      plea and sentenced him according to the terms of the plea agreement.


[9]   On November 15, 2016, Caviness filed a Complaint seeking civil forfeiture of

      the property seized after the search of the Coulters’ home, alleging in relevant

      part as follows:


      Court of Appeals of Indiana | Opinion 18A-MI-957 | July 11, 2019         Page 4 of 16
               5. Over a period of time, [Coulter] has participated in,
               constructed and continued to operate a “corrupt enterprise”
               through a pattern of racketeering activity, as defined by statute,
               in that he, along with other unknown and unnamed co-conspirators,
               has engaged in conduct in the furtherance of an enterprise in which he
               cultivated illegal narcotics/drugs, possessed illegal
               narcotics/drugs, and/or transported illegal narcotics/drugs
               and/or sold the illegal narcotics/drugs.


               6. [Coulter] and other unnamed persons have continued to engage in
               said pattern of racketeering activity, deriving therefrom, profits,
               property, and income, obtained with the funds and with the
               profits from the enterprise, and said income, profits, and
               property, are subject to forfeiture pursuant to the Indiana
               Racketeer Influence Corrupt Organization Statute, Indiana Code
               Sec. § 34-24-2-1 et seq. The Defendant should be ordered by the
               Court to immediately list and identify all of their assets of
               whatever kind, and the location and holder of all such assets, and
               report said information to the Court at once, serving a copy
               thereof on the Plaintiff.


               7. [Coulter] acquired and/or utilized certain property including
               the property listed in Paragraph 1 of this Complaint to further his
               criminal actions. Said property, seized by the Plaintiff’s agents on
               or about October 4, 2016 is subject to seizure and forfeiture
               pursuant to [I.C. §] 34-24-2 et seq.


       (Appellants’ App. Vol. II, p. 7) (emphasis added).


[10]   On January 17, 2018, Caviness filed a motion for summary judgment in which

       he alleged the property was subject to forfeiture “under both Indiana’s forfeiture

       and RICO statutes.” (Appellants’ App. Vol. II, p. 18). Caviness argued that a

       “person commits the crime of corrupt business influence if he, ‘through a

       pattern of racketeering activity, knowingly or intentionally acquires or

       maintains, either directly or indirectly, an interest in or control of property or an


       Court of Appeals of Indiana | Opinion 18A-MI-957 | July 11, 2019                 Page 5 of 16
       enterprise.’ Indiana Code § 35-45-6-2.” (Appellants’ App. Vol. II, p. 20).

       Caviness further asserted that Coulter


               unquestionably engaged in a pattern of racketeering activity
               through his growing, purchasing, and selling of marijuana over a
               period of eighteen (18) year[s]. The items seized by law
               enforcement were either used in the course of, intended for use in
               the course of, derived from, or realized through his illegal
               conduct.


       (Appellants’ App. Vol. II, p. 21). Caviness designated in support of his motion

       the pleadings from Coulter’s criminal case, the sworn affidavits filed in support

       of the search warrant for the Coulters’ home, sworn incident reports detailing

       the search, and photographs taken from the bank surveillance footage showing

       Coulter’s use of his truck on October 3, 2016.


[11]   In their response in opposition to summary judgment, the Coulters designated,

       among other evidence, the deposition testimony of Detective Shaver. The

       Coulters argued that a genuine issue of material fact existed regarding whether

       Coulter had used his truck in the furtherance of any crime because Detective

       Shaver testified at his deposition that he had no “specific direct knowledge” that

       the currency Coulter brought to the bank on October 3, 2016, was “proceeds of

       drug activity.” (Appellants’ App. Vol. II, pp. 85-86). The Coulters also

       designated statements from their Wells Fargo bank account which they argued

       showed that the couple had income from legitimate business ventures around

       the same time period as the October 3, 2016, currency exchange. Regarding the

       other property seized, apart from the currency, the Coulters argued that

       Court of Appeals of Indiana | Opinion 18A-MI-957 | July 11, 2019         Page 6 of 16
       Caviness had failed to make his prima facie case that no issues of fact were left to

       be resolved because he had failed to specifically show how the laptops, camera,

       and rifle had been used to facilitate the crime of dealing marijuana. Regarding

       the seized currency, the Coulters argued that Caviness did not make a prima

       facie case for summary judgment because there was nothing linking the currency

       to Coulter’s drug dealing, such as an admission by Coulter that the money was

       the proceeds from sales, no evidence of any controlled buys using the seized

       currency, and no evidence that he had actually sold marijuana to the people

       listed on the ledger found in his bedroom. On March 27, 2018, the trial court

       granted Caviness’ motion for summary judgment without a hearing and

       without entering any findings of fact or conclusions of law.


[12]   The Coulters now appeal. Additional facts will be provided as necessary.


                                DISCUSSION AND DECISION
                                               I. Standard of Review

[13]   Summary judgment is appropriate if the designated evidence “shows that there

       is no genuine issue as to any material fact and that the moving party is entitled

       to judgment as a matter of law.” Ind. Trial Rule 56(C). We review both the

       grant or denial of summary judgment de novo and apply the same standard as

       the trial court. Kerr v. City of South Bend, 48 N.E.3d 348, 352 (Ind. Ct. App.

       2015). The party moving for summary judgment bears the initial burden of

       making a prima facie showing that there are no genuine issues of material fact

       and that it is entitled to judgment as a matter of law. Sargent v. State, 27 N.E.3d


       Court of Appeals of Indiana | Opinion 18A-MI-957 | July 11, 2019          Page 7 of 16
       729, 731 (Ind. 2015). “Summary judgment is improper if the movant fails to

       carry its burden, but if it succeeds, then the nonmoving party must come

       forward with evidence establishing the existence of a genuine issue of material

       fact.” Id. at 731-32. “All disputed facts and doubts as to the existence of

       material facts must be resolved in favor of the non-moving party.” Kerr, 48

       N.E.3d at 352. The non-moving party has the burden on appeal to persuade us

       that the trial court’s grant of summary judgment was erroneous, but we will

       carefully assess the trial court’s decision to ensure that the non-moving party

       was not improperly denied his day in court. Id.


[14]   In addition, we note that the trial court did not enter findings of fact and

       conclusions of law in support of its judgment. Special findings are not required

       in summary judgment proceedings and are not binding on appeal.

       AutoXchange.com. Inc. v. Dreyer and Reinbold, Inc., 816 N.E.2d 40, 48 (Ind. Ct.

       App. 2004). However, such findings offer this court valuable insight into the

       trial court’s rationale for its review and facilitate appellate review. Id.


                                            II. Indiana’s RICO Statute

[15]   In his Complaint, Caviness alleged that the Coulter’s property was subject to

       forfeiture under both the civil forfeiture statute, I.C. § 34-24-2-1 et seq and

       Indiana’s Racketeer Influenced and Corrupt Organizations (RICO) statute, I.C.

       § 34-24-2-2 et seq; I.C. § 35-45-6-2. However, the trial court granted summary

       judgment based solely on the state RICO statute, and, thus, our analysis will

       entail that statute only. Indiana Code section 34-24-2-2(a) provides, in relevant

       part, that

       Court of Appeals of Indiana | Opinion 18A-MI-957 | July 11, 2019              Page 8 of 16
        [t]he prosecuting attorney in a county in which any of the
        property is located may bring an action for the forfeiture of any
        property:

        (1) used in the course of;

        (2) intended for use in the course of;

        (3) derived from; or

        (4) realized through;

        conduct in violation of [I.C. §] 35-45-6-2.


Indiana Code section 35-45-6-2, in turn, criminalizes the engagement in corrupt

business influence. A ‘corrupt business influence’ is defined, in relevant part, as

a person “who through a pattern of racketeering activity, knowingly or

intentionally acquires or maintains, either directly or indirectly, an interest in or

control of property or an enterprise[.]” I.C. § 35-45-6-2(2). Thus, this section of

the RICO statute criminalizes acquiring or maintaining an interest or control in

property through a pattern of racketeering, without necessarily being engaged in

or associated with an enterprise. Id. A ‘pattern of racketeering activity’ is

defined as “engaging in at least two (2) incidences of racketeering activity that

have the same or similar intent, result, accomplice, victim, or method of

commission, or that are otherwise interrelated by distinguishing characteristics

that are not isolated incidents.” I.C. § 35-45-6-1(d). Finally, ‘racketeering

activity’ means “to commit, to attempt to commit, to conspire to commit a

violation of, or aiding and abetting a violation of any of the following . . .

dealing in marijuana, hashish oil or salvia.” I.C. § 35-45-6-1(e)(34).



Court of Appeals of Indiana | Opinion 18A-MI-957 | July 11, 2019            Page 9 of 16
                       II. Prima Facie Showing and Genuine Issues of Material Fact

[16]   We begin our analysis regarding Caviness’ prima facie showing by noting that he

       proceeded under different RICO theories in his Complaint than he did in his

       motion for summary judgment. In his Complaint, Caviness alleged that

       Coulter had acted in concert with “other unknown and unnamed co-

       conspirators” and “engaged in conduct in furtherance of an enterprise” of

       dealing drugs. (Appellants’ App. Vol. II, p. 7). This allegation of operating a

       criminal enterprise is referred to as “said pattern of racketeering” and “his

       criminal actions” in subsequent paragraphs of the Complaint. (Appellants’

       App. Vol. II, p. 7). An ‘enterprise’ is defined in the RICO statute in relevant

       part as “a union, an association, or a group, whether a legal entity or merely

       associated in fact.” I.C. § 35-45-6-1(c)(2). Thus, a RICO enterprise is “a group

       of persons associated together for a common purpose of engaging in a course of

       conduct.” Miller v. State, 992 N.E.2d 791, 794 (Ind. Ct. App. 2013) (quotation

       omitted), trans. denied.


[17]   Caviness did not assert in his motion for summary judgment that Coulter had

       engaged in racketeering as part of a group of persons. Rather, he alleged that

       no genuine issue of material fact existed that Coulter had “unquestionably

       engaged in a pattern of racketeering activity through his growing, purchasing,

       and selling of marijuana over a period of eighteen (18) year[s].” (Appellants’

       App. Vol. II, p. 21). This being noted, the Coulters do not argue that the RICO

       statute does not apply to a one-man drug dealing operation, nor do they claim




       Court of Appeals of Indiana | Opinion 18A-MI-957 | July 11, 2019              Page 10 of 16
       in their responsive summary judgment pleadings that Caviness had improperly

       varied his claims for purposes of his summary judgment motion.


[18]   We also observe that Caviness argued on summary judgment that, because the

       trial court had found that probable cause existed for a charge of corrupt

       business influence and Coulter had pleaded guilty to dealing marijuana, Coulter

       was collaterally estopped by Indiana Code section 34-24-2-7 1 from relitigating

       those issues on summary judgment. However, the charge for which probable

       cause was found was an allegation that Coulter used proceeds from his

       marijuana dealing to establish an “enterprise,” a theory that Caviness did not

       pursue in his summary judgment motion. (Appellants’ App. Vol. II, p. 23).

       Regardless, for collateral estoppel to apply, a final judgment on the merits in a

       court of competent jurisdiction had to have been rendered on the fact or issue.

       Nat’l Wine & Spirits, Inc. v. Ernst & Young, LLP, 976 N.E.2d 699, 704 (Ind. 2012).

       A finding of probable cause determination is not a final judgment of an issue or

       fact. In addition, the fact that Coulter pleaded guilty to dealing marijuana did

       not relieve the State from making a prima facie showing for summary judgment

       that an interest in, or control of, the property at issue was acquired or

       maintained by Coulter through that dealing activity, as required by the RICO

       statute. See I.C. § 35-45-6-2(2); see also Flinn v. State, 563 N.E.2d 536, 541 (Ind.

       1990) (“[O]nce a pattern of racketeering activity has been established, it must be



       1
         I.C. § 34-24-2-7 provides as follows: “In any action brought under this chapter . . ., the principle of
       collateral estoppel operates to bar relitigation of the issues previously determined in a criminal proceeding
       under IC 35-45-6-2.”

       Court of Appeals of Indiana | Opinion 18A-MI-957 | July 11, 2019                                   Page 11 of 16
       connected to an interest in or control of . . . property or an enterprise, to

       constitute the offense of corrupt business influence.”).


                                                            A. Truck 2

[19]   The evidence designated by Caviness showed that Coulter engaged in

       marijuana growing and dealing for approximately eighteen years, had 130

       active clients, and made approximately $800 per week from his marijuana

       dealing activities. On October 3, 2016, he drove his black Chevrolet truck to

       the bank and presented $9,000 in $20 bills to be exchanged for $100 bills.

       Caviness designated evidence that $20 bills are the most common unit of

       currency used in the narcotics trade. Although Caviness’ designated evidence

       showed that Coulter claimed to be engaged in some legitimate business activity

       also, Kerri told investigators that Coulter had not been working a great deal

       prior to his arrest. Coulter’s control of his truck had to be maintained with

       insurance and fuel, costs which required him to expend money on an ongoing

       basis. Thus, we conclude that the designated evidence established a prima facie

       showing that Coulter knowingly maintained control, at least indirectly, of his




       2
         In his Complaint, Caviness alleged that the truck was also subject to seizure under Indiana Code section
       34-24-1-1(a)(1). That portion of Indiana’s civil forfeiture statute pertaining to the forfeiture of vehicles was
       deemed unconstitutional in litigation in the Southern District of Indiana. See Washington v. Marion Cty.
       Prosecutor, 264 F.Supp.3d 957, 979-80 (S.D. Ind. 2017). The matter is now on remand from the Seventh
       Circuit for consideration of recent amendments to the statute. See Washington v. Marion Cty. Prosecutor, 916
       F.3d 676, 679-80 (7th Cir. 2019). This litigation does not impact the present case because the trial court did
       not grant summary judgment under the civil forfeiture statute.

       Court of Appeals of Indiana | Opinion 18A-MI-957 | July 11, 2019                                     Page 12 of 16
       truck through his drug dealing activities and that he used his truck in the course

       of his drug dealing when he drove it to the bank on October 3, 2016.


[20]   The Coulters, in response to this prima facie showing, designated evidence in

       the form of Detective Shaver’s deposition testimony that the State did not have

       “any specific direct knowledge” that the cash Coulter sought to exchange on

       October 3, 2016, was derived from drug dealing. (Appellants’ App. Vol. II, p.

       85). Caviness does not address this evidence on appeal. As Coulter’s act of

       driving his truck to exchange the currency was the only use of the truck

       supported by the evidence, 3 we conclude that a genuine issue of material fact

       existed regarding whether Coulter acquired or maintained control of his truck

       through his drug dealing activity and that this issue precluded summary

       judgment as to Coulter’s truck. Accordingly, we reverse the trial court’s grant

       of summary judgment as to the truck and remand for further proceedings on

       that property. See Feitler v. Springfield Enters., Inc., 978 N.E.2d 1160, 1170 (Ind.

       Ct. App. 2012) (remanding where summary judgment grant was inappropriate

       due to existence of genuine issues of material fact), trans. denied.


                                            B. Property Found in the Safe

[21]   When his home was searched by law enforcement on October 4, 2016, and after

       receiving his Miranda advisements, Coulter was asked if there was anything

       illegal in the home and to show the officers where the marijuana was. Coulter



       3
        Coulter told investigators that he went to Indianapolis approximately twice a month to purchase
       marijuana, but the evidence is silent as to his mode of transportation for these trips.

       Court of Appeals of Indiana | Opinion 18A-MI-957 | July 11, 2019                             Page 13 of 16
       replied, “Everything is in the safe.” (Appellants’ App. Vol. II, p. 35). In the

       safe Officers found marijuana, $22,907 in cash, the Dell laptop computer, and a

       Nikon camera. Contrary to the Coulters’ assertions on appeal, Coulter’s

       statement to the officers established a link between the property in the safe and

       his drug dealing activity and, thus, made a prima facie showing that the cash,

       laptop, and camera found there were acquired or maintained by Coulter

       through his drug activity. Once Caviness made this showing, the burden shifted

       to the Coulters to show the existence of a genuine issue of material fact. See

       Sargent, 27 N.E.3d 731-32. The Coulters did not designate any evidence which

       created a genuine issue of material fact regarding this property, such as an

       affidavit on his part refuting that the property was related to his drug dealing

       activities. The Coulters’ designation of bank account records showing money

       flowing through their bank account, without more, does not create a link

       between any cash withdrawn from the bank and the cash found in the safe. As

       such, we conclude that the trial court properly granted summary judgment to

       Caviness on the property found in the safe.


                                         C. Property Found Outside the Safe

[22]   Caviness also sought summary judgment on the forfeiture of the Toshiba laptop

       found on a desk in the master bedroom and a rifle found in an upstairs

       bedroom. In support of his case for forfeiture of the laptop, Caviness

       designated evidence that the laptop was found next to a handwritten drug client

       ledger on the desk. However, without more, we conclude that the simple fact

       that the laptop was found in close proximity to the client ledger did not


       Court of Appeals of Indiana | Opinion 18A-MI-957 | July 11, 2019         Page 14 of 16
       establish a prima facie showing that the laptop was acquired or maintained

       through Coulter’s drug dealing activity. 4 Regarding the rifle, Caviness

       designated no evidence affirmatively showing that it was linked in any way to

       Coulter’s drug dealing, let alone acquired or maintained through those

       activities. Rather, undisputed evidence designated by Caviness showed that the

       bedroom where the rifle was located was being used by someone else. Because

       Caviness did not pursue any theory of group drug dealing activity in his

       summary judgment pleadings, we conclude that the trial court erred when it

       granted summary judgment to Caviness on the Toshiba laptop and the rifle, and

       we remand for entry of summary judgment on that property in favor of the

       Coulters. See Sargent v. State, 27 N.E.3d 729, 733 (Ind. 2015) (reversing and

       remanding for entry of summary judgment in favor of property owner in civil

       forfeiture case where the State failed to make prima facie showing and material

       facts were not in dispute).


                                                 CONCLUSION
[23]   Based on the foregoing, we conclude that no genuine issues of material fact

       existed regarding the $22,907, Dell laptop, and Nikon camera found in the safe

       and that summary judgment in favor of Caviness was appropriately granted as

       to that property. We conclude that a genuine issue of fact was left to be




       4
         The civil forfeiture statute provides for the admission into evidence of property found near or on a person
       committing an enumerated offense as prima facie evidence the property was used to facilitate a violation of, or
       was proceeds of, the violation of a criminal statute for purposes of proving forfeiture is merited. See I.C. § 34-
       24-1-1(d). Indiana’s RICO statute has no such evidentiary presumption.

       Court of Appeals of Indiana | Opinion 18A-MI-957 | July 11, 2019                                    Page 15 of 16
       resolved regarding the truck and reverse and remand for further proceedings.

       We also conclude that Caviness failed to make a prima facie case regarding the

       Toshiba laptop and the rifle, and, therefore, we remand for entry of summary

       judgment in favor of the Coulters as to those two items.


[24]   Affirmed in part, reversed in part, and remanded for further proceedings as to

       the truck and with instruction for entry of summary judgment in favor of the

       Coulters as to the Toshiba laptop and the rifle.


[25]   Bailey, J. and Pyle, J. concur




       Court of Appeals of Indiana | Opinion 18A-MI-957 | July 11, 2019      Page 16 of 16
