FOR PUBLICATION


APPELLANT PRO SE:                           ATTORNEYS FOR APPELLEE:

MICHAEL L. CURTIS                           GREGORY F. ZOELLER
Indianapolis, Indiana                       Attorney General of Indiana

                                            STEPHANIE L. ROTHENBERG
                                            Deputy Attorney General
                                            Indianapolis, Indiana



                                                                     Apr 01 2013, 8:36 am
                             IN THE
                   COURT OF APPEALS OF INDIANA

MICHAEL L. CURTIS,                          )
                                            )
      Appellant-Defendant,                  )
                                            )
             vs.                            )     No. 49A02-1203-MI-271
                                            )
STATE OF INDIANA,                           )
                                            )
      Appellee-Plaintiff.                   )


                   APPEAL FROM THE MARION SUPERIOR COURT
                       The Honorable Timothy W. Oakes, Judge
                          Cause No. 49D13-0912-MI-57586



                                  April 1, 2013


                   OPINION ON REHEARING - FOR PUBLICATION


SHARPNACK, Senior Judge
       Following our opinion in Curtis v. State, 981 N.E.2d 625 (Ind. Ct. App. 2013),

which reversed the trial court’s denial of Michael Curtis’s motion for relief from

judgment and remanded with instructions to vacate the order authorizing forfeiture of his

truck, the State petitions for rehearing.     We grant rehearing to address the State’s

argument but still conclude that the trial court abused its discretion by denying Curtis’s

motion.

       Curtis was caught selling pirated movies out of his truck. The State charged him

with four counts of Class D felony fraud under Indiana Code section 35-43-5-4(10)(A)

(2005), which makes it a crime to “knowingly or intentionally . . . sell[ ] . . . a recording

for commercial gain or personal financial gain that does not conspicuously display the

true name and address of the manufacturer of the recording.” The State also filed a

complaint for forfeiture of Curtis’s truck under Indiana Code section 34-24-1-1(a)(1)(B)

(2009), which allows the seizure of vehicles “if they are used or are intended for use by

the person or persons in possession of them to transport or in any manner to facilitate the

transportation of . . . [a]ny stolen (IC 35-43-4-2) or converted property (IC 35-43-4-3) if

the retail or repurchase value of that property is one hundred dollars ($100) or more.”

       Curtis pleaded guilty to one count of fraud, the State dismissed the remaining

charges, and the trial court entered judgment as a misdemeanor. The State then filed a

motion for summary judgment in the forfeiture action. The trial court granted the motion,

entering an order authorizing forfeiture of Curtis’s truck.

       After his motion for a belated appeal was not acted upon by the trial court, Curtis

filed a motion for relief from judgment. In the motion, Curtis argued that fraud was not a

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crime for which his truck could be forfeited. The trial court denied the motion without a

hearing.

       On appeal, Curtis claimed that the trial court abused its discretion by denying his

motion because copyright infringement, he argued, does not constitute theft.          We

examined the authority he cited, Dowling v. United States, 473 U.S. 207, 105 S. Ct. 3127,

87 L. Ed. 2d 152 (1985), and found it persuasive. In that case, the Supreme Court of the

United States reversed a defendant’s convictions for interstate transportation of stolen

property on the basis that the bootleg records transported did not constitute stolen

property. We also rejected the State’s argument that Curtis could not challenge the

forfeiture because he had already pleaded guilty to committing the underlying crime with

his truck. We held, “The crime to which Curtis pleaded guilty, however, was not theft or

conversion, and the forfeiture provision here allows seizure only in cases of stolen or

converted property.” Curtis, 981 N.E.2d at 629. We thus reversed the trial court and

remanded with instructions to vacate the forfeiture order.

       In its petition for rehearing, the State now argues that Dowling is not binding and

that Yao v. State, 975 N.E.2d 1273 (Ind. 2012), mandates a different outcome. We agree

that Dowling, involving federal statutory interpretation, does not bind us. As for Yao,

that case involved defendants who were charged in part with theft for selling airsoft gun

replicas allegedly violating a firearms manufacturer’s trademark on real weapons. There,

the Indiana Supreme Court noted that our criminal laws define “property” as “anything of

value” and extends to “intangibles,” Ind. Code § 35-41-1-23(a) (1983) (now codified at

Ind. Code § 35-31.5-2-253(a) (2012)), and thus determined that the trademarks alleged to

                                             3
have been stolen could constitute property depending on the evidence presented at trial.

Yao, 975 N.E.2d at 1281.         After rejecting the defendants’ contention that it is

categorically impossible to exert unauthorized control over a trademark, the Court held

that the trial court did not abuse its discretion by denying the defendants’ motion to

dismiss the theft charges. Id. at 1281-82.

       We agree that Yao might support the proposition that pirated movies constitute

stolen property. However, this does not necessarily answer the forfeiture question. To

support a claim for forfeiture of a vehicle, the State must show by a preponderance of the

evidence that: (1) the vehicle was within the definition of property subject to seizure

under Indiana Code section 34-24-1-1 and (2) a person who has an ownership interest of

record in the bureau of motor vehicles knew or had reason to know that the vehicle was

being used in the commission of the offense. See Ind. Code § 34-24-1-4(a) (2002).

       In Katner v. State, 655 N.E.2d 345 (Ind. 1995), the trial court ordered the

defendant’s vehicle forfeited under a different provision of the statute, now codified at

Section 34-24-1-1(a)(1)(A)(vii)), allowing forfeiture where the vehicle was used to

transport “[a] controlled substance for the purpose of committing, attempting to commit,

or conspiring to commit . . . [p]ossession of cocaine.”

       The Indiana Supreme Court reversed the forfeiture.         It determined that the

forfeiture provision required the State to show a nexus between the property sought in

forfeiture and the underlying offense. Katner, 655 N.E.2d at 349. Because the controlled

substance transported by the vehicle was only cocaine residue in a container in the



                                             4
driver’s pocket, the Court concluded that the State failed to show a nexus between the act

of cocaine possession and the use of the vehicle. Id.

       Although Katner specifically examined the forfeiture provision regarding

controlled substances, it noted that the relationship between two factual prerequisites

necessary for vehicle forfeiture is “the connection between a vehicle’s use and the

purpose for which it is used.” Id. at 348. We believe the nexus analysis applies to the

forfeiture provision regarding stolen or converted property.

       We acknowledge the Indiana Supreme Court’s statements that the owner of a

vehicle need not be charged or convicted on the underlying offense for forfeiture to

occur. See Serrano v. State, 946 N.E.2d 1139, 1140 (Ind. 2011); Katner, 655 N.E.2d at

348. Indeed, a person’s vehicle may be forfeited even if it was another person who used

the vehicle to transport stolen property, so long as the owner of the vehicle knew or had

reason to know that the vehicle was being used in that illicit manner. Nevertheless, we

find that where the underlying offense actually charged is, as here, fraud (knowingly or

intentionally selling a recording for commercial gain or personal financial gain that does

not conspicuously display the true name and address of the manufacturer of the

recording) and not theft (knowingly or intentionally exerting unauthorized control over

another person’s property with intent to deprive that person of any part of its value or

use) or conversion (knowingly or intentionally exerting unauthorized control over another

person’s property), there is no predicate for forfeiture.

       We therefore affirm our original disposition.

ROBB, C.J., and KIRSCH, J., concur.

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