#26922-a-JKK

2014 S.D. 92

                             IN THE SUPREME COURT
                                     OF THE
                            STATE OF SOUTH DAKOTA

                                    ****
STATE OF SOUTH DAKOTA,                       Plaintiff and Appellee,

      v.

ONE 2011 WHITE FOREST
RIVER XLR TOY HAULER,
VIN #4X4FXLP26B5154288,                      Defendant and Appellant.

                                    ****

                   APPEAL FROM THE CIRCUIT COURT OF
                      THE SECOND JUDICIAL CIRCUIT
                   MINNEHAHA COUNTY, SOUTH DAKOTA

                                    ****

                   THE HONORABLE PATRICIA C. RIEPEL
                               Judge

                                    ****

MARTY J. JACKLEY
Attorney General

PAT ARCHER
Assistant Attorney General
Pierre, South Dakota                         Attorneys for plaintiff
                                             and appellee.


RICHARD L. JOHNSON
Sioux Falls, South Dakota                    Attorney for defendant
                                             and appellant.

                                    ****

                                             CONSIDERED ON BRIEFS
                                             ON NOVEMBER 17, 2014

                                             OPINION FILED 12/17/14
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KONENKAMP, Justice

[¶1.]        The State initiated a civil forfeiture action against a recreational

vehicle (RV) belonging to Paul Alan Lockenour. He had transported and stored

methamphetamine in this RV, some of which he later sold to a confidential

informant for $300. All the illicit drugs found in his possession were valued

between $1,600 and $2,000. Thus, he asserted that the forfeiture of his RV, valued

at $54,000, was grossly disproportionate to his crime. The State moved for

summary judgment, and, after a hearing, the circuit court granted the State’s

motion, ruling that the forfeiture was not grossly disproportionate or

unconstitutionally excessive.

                                    Background

[¶2.]        Lockenour’s RV, a 2011 Forest River XLR Toy Hauler, was purchased

with money he inherited from his parents. Although his permanent residence was

in Cambridge, Nebraska, he intended to use the RV as his residence. He had

planned to travel to Daytona for “Bike Week.” But he changed his plans at the

request of his friend, “Lo.” She asked him to come to Sioux Falls and bring

methamphetamine (meth) with him. He later explained that he considered Lo a

good friend, and he was willing to bring her meth to use or sell. But Lo, as

Lockenour was later to learn, was a confidential informant. During their recorded

telephone conversation, he told Lo he “got a lot” of meth, and she should sell it for “3

for an 8.”

[¶3.]        On March 10, 2011, law enforcement officers fitted Lo with a recording

device and gave her purchase money. Lo met with Lockenour, who had driven his


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RV to Sioux Falls to meet her. Through the audio recording, Lo and Lockenour can

be heard talking about making money and the price of the meth. Lo gave

Lockenour $300 for one baggie of meth, and he gave her an additional baggie

without charge. After the purchase, Lo turned over the baggies to law enforcement

officers. Each baggie bore a picture of a dolphin. One weighed 3.4 grams, the other

4.1 grams, and both tested positive for meth.

[¶4.]        Later that same day, Lockenour was arrested. After a search warrant

was obtained, officers found 3.3 grams of meth on Lockenour’s person. In the RV,

they found six more baggies of meth with the same dolphin symbol, two glass pipes

commonly used for smoking meth (with residue that tested positive for meth), a

digital scale with meth residue on it, $300 cash (the law enforcement purchase

money), and a white substance, not meth. The six additional baggies of meth

weighed 3.3 grams, 3.4 grams, 3.7 grams, 1.6 grams, and 3.6 grams. The “street

value” was approximately $1,600 to $2,000. During his interview with law

enforcement officers, Lockenour explained that he had purchased ten, one-eighth

ounce quantities of meth from a motorcycle gang in Nebraska for $2,500. He

admitted to having purchased meth from this gang on previous occasions, possibly

five or six times during the prior eighteen months.

[¶5.]        Lockenour was charged with distribution of a controlled substance,

possession of a controlled substance, and possession or use of drug paraphernalia.

He pleaded guilty to distribution of a controlled substance and was sentenced to

seven years in prison with two years suspended on certain conditions. The

remaining criminal charges were dismissed.


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[¶6.]        The State brought a civil forfeiture action against Lockenour’s RV. He

answered and asserted, as an affirmative defense, that the forfeiture of his RV

violated his right against excessive fines under the Eighth Amendment of the

United States Constitution and Article VI, § 23 of the South Dakota Constitution.

Lockenour argued that the value of the RV “far exceeds the quantity or value of any

controlled drugs or substances or marijuana found in the [RV],” and its forfeiture

“would be unconstitutionally disproportionate” to the value of the controlled

substances. It was undisputed the value of the RV was $54,000 and the

approximate street value of the meth was $1,600 to $2,000.

[¶7.]        The State moved for summary judgment asserting that no material

issue of fact was in dispute and that the circuit court need only determine whether

the forfeiture of the RV was disproportionate to Lockenour’s crime. At the hearing,

Lockenour conceded that his RV was subject to forfeiture under SDCL 34-20B-70(4).

But he maintained that the forfeiture of a $54,000 RV for a crime involving

approximately $2,000 worth of drugs was grossly disproportionate.

[¶8.]        The circuit court recognized that “[t]he amount of the forfeiture must

bear some relationship to the gravity of the offense it is designed to punish.” See

United States v. Bajakajian, 524 U.S. 321, 334, 118 S. Ct. 2028, 2036, 141 L. Ed. 2d

314 (1998). The court looked beyond the crime Lockenour pleaded guilty to and

considered all the circumstances surrounding the offense. Although Lockenour

pleaded guilty to distribution of a controlled substance, he was originally charged

with two additional class 4 felonies. Therefore, he had faced a potential of $40,000

in total fines, which the court found proportionate to $54,000, the value of the RV.


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The court further considered that Lockenour could have been charged with two

additional class 4 felonies, which would have increased his potential fines to over

$100,000. Finally, the court found that the RV was “entirely associated with the

criminal activity,” and the “entire transaction occurred within” the RV. Based on

all these circumstances, the court ruled that Lockenour failed to make a prima facie

showing of gross disproportionality. Alternatively, the court ruled that even if

Lockenour had made a prima facie showing, it was not excessive because “the value

of the property forfeited is within or near the permissible range of fines.” See State

v. One 1995 Silver Jeep Grand Cherokee (Silver Jeep), 2006 S.D. 29, ¶ 8, 712 N.W.2d

646, 651 (quoting United States v. Dodge Caravan Grand SE, 387 F.3d 758, 763 (8th

Cir. 2004)). The circuit court granted the State summary judgment and ordered

forfeiture.

                              Analysis and Decision

[¶9.]         On appeal, Lockenour maintains that the forfeiture of his RV is grossly

disproportionate to his crime. He contends that he made a prima facie showing of

gross disproportionality because his RV was valued at $54,000, and the value of the

meth he had was between $1,600 and $2,000. There was no evidence that he

distributed meth to anyone other than Lo or that he sold meth out of the RV at any

other time. He claims he “had no predisposition to come to Sioux Falls and sell

methamphetamine” until Lo, “working as a confidential informant, induced him to

come to Sioux Falls.” Moreover, he believes that there was “no harm caused” by his

conduct “because the distribution of methamphetamine was a ‘controlled buy.’”




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[¶10.]       In Silver Jeep, we acknowledged that “[t]he amount of the forfeiture

must bear some relationship to the gravity of the offense that it is designed to

punish.” Id. ¶ 7 (quoting Bajakajian, 524 U.S. at 334, 118 S. Ct. at 2036) (internal

quotation mark omitted). A forfeiture is unconstitutionally excessive when it is

grossly disproportionate to the offense. Following the Eighth Circuit Court of

Appeals, we employ a two-step approach to assess gross disproportionality in a

forfeiture action. Id. (citing Dodge Caravan Grand SE, 387 F.3d at 763). “First, the

claimant must ‘make a prima facie showing of gross disproportionality;’ and, second,

if the claimant can make such a showing, ‘the court considers whether the

disproportionality reaches such a level of excessiveness that in justice the

punishment is more criminal than the crime.’” Id. “To determine whether the facts

indicate gross disproportionality, the [trial] court must consider multiple factors,

including the extent and duration of the criminal conduct, the gravity of the offense

weighed against the severity of the criminal sanction, and the value of the property

forfeited.” United States v. Bieri, 68 F.3d 232, 236 (8th Cir. 1995) (citation omitted);

Silver Jeep, 2006 S.D. 29, ¶ 8, 712 N.W.2d at 650-51.

[¶11.]       Here, the duration of the criminal conduct was eighteen months. By

his own admission, Lockenour began buying meth from a motorcycle gang eighteen

months before he sold it to Lo, and though he claimed he purchased the meth only

for his personal use, using and possessing meth is a crime. Moreover, despite his

claim that he had no intent to distribute meth, it is undisputed that he drove to

Sioux Falls specifically to distribute meth to Lo. He also gave Lo meth for her to

sell. And he had a digital scale with meth residue and additional baggies bearing a


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dolphin picture. Thus, the extent of his criminal conduct cannot be isolated to a

single incident. As to his claim that “no harm was caused” by his conduct, he

sought to put an injurious substance in the Sioux Falls community. Meth is toxic

and highly addictive. Societal detriments associated with meth are substantial, not

the least of which is its ruin of human health and wellbeing, and the costs for law

enforcement, addiction treatment, and imprisonment. The Legislature has deemed

distribution of meth punishable as a class 4 felony, thereby identifying it as a

serious criminal offense. See SDCL 22-42-2.

[¶12.]       “A court must consider the entire circumstances surrounding the

offense that led to the forfeiture when assessing gross disproportionality.” Silver

Jeep, 2006 S.D. 29, ¶ 11, 712 N.W.2d at 652 (citation omitted). As one court

remarked, “Translating the gravity of a crime into monetary terms — such that it

can be proportioned to the value of forfeited property — is not a simple task.”

United States v. 817 N.E. 29th Drive, Wilton Manors, Fla., 175 F.3d 1304, 1309

(11th Cir. 1999). Nonetheless, we are guided by our statutes setting forth the range

of permissible fines for certain offenses. “Criminal fines are particularly relevant as

they reflect judgments made by the [L]egislature about the appropriate punishment

for an offense.” Silver Jeep, 2006 S.D. 29, ¶ 8, 712 N.W.2d at 651 (citation omitted);

817 N.E. 29th Drive, Wilton Manors, Fla., 175 F.3d at 1309-10; see also Bajakajian,

524 U.S. at 337, 118 S. Ct. at 2037. Courts have consistently held that “‘if the value

of the property forfeited is within or near the permissible range of fines . . . the

forfeiture is almost certainly not excessive.’” Silver Jeep, 2006 S.D. 29, ¶ 8, 712

N.W.2d at 651 (quoting Dodge Caravan Grand SE, 387 F.3d at 763); Bajakajian,


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524 U.S. at 336, 118 S. Ct. at 2037. Based on our assessment of all the

circumstances, the forfeiture of Lockenour’s RV, valued at $54,000, was not grossly

disproportionate to the gravity of his offense. Therefore, the circuit court did not err

when it granted summary judgment and ruled that the forfeiture did not violate the

Eighth Amendment of the United States Constitution or Article VI, § 23 of the

South Dakota Constitution.

[¶13.]       Affirmed.

[¶14.]       GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and

WILBUR, Justices, concur.




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