MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be                                     Oct 23 2019, 9:56 am
regarded as precedent or cited before any
court except for the purpose of establishing                                  CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
the defense of res judicata, collateral                                        and Tax Court

estoppel, or the law of the case.


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



                                           IN THE
    COURT OF APPEALS OF INDIANA

Nikita L. Minor,                                         October 23, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-MI-954
        v.                                               Appeal from the Hamilton
                                                         Superior Court
State of Indiana and Fishers                             The Honorable Michael A. Casati,
Police Department,                                       Judge
Appellees-Plaintiffs.                                    Trial Court Cause No.
                                                         29D01-1612-MI-10555



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-MI-954 | October 23, 2019                   Page 1 of 11
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Nikita L. Minor (Minor), appeals the trial court’s Decree

      of Forfeiture of $895.


[2]   We affirm.


                                                   ISSUES
[3]   Minor raises three issues on appeal, which we restate as the following two

      issues:


          (1) Whether the trial court abused its discretion in admitting testimony about

                the existence of a search warrant during the forfeiture proceedings; and

          (2) Whether the State presented sufficient evidence to support the forfeiture

                of $895 found under the bed in the master bedroom.


                      FACTS AND PROCEDURAL HISTORY
[4]   On June 6, 2016, at approximately 1:40 a.m., Fishers Police Officers Michael

      Burke (Officer Burke) and Officer Freeman were dispatched to a residence on

      Zircon Drive in Fishers, Indiana, on a report of a domestic disturbance. Upon

      arrival, the officers heard yelling and banging coming from the residence.

      Officer Burke knocked on the apartment door and Telly Bluitt (Bluitt)

      answered. After the officers spoke briefly to Bluitt, Minor came to the door to

      speak with the officers. While interacting with the residents, the officers

      noticed the smell of marijuana emanating from inside the apartment. When

      questioned, Minor acknowledged that Bluitt was smoking marijuana in the

      Court of Appeals of Indiana | Memorandum Decision 19A-MI-954 | October 23, 2019   Page 2 of 11
      residence, but denied any use herself. She informed the officers that both she

      and Bluitt lived in the residence. When Minor denied a request to search the

      residence, the officers sought and obtained a search warrant.


[5]   During the execution of the search warrant, the officers located marijuana, two

      packages of heroin totaling three grams, and eighty-seven grams of a substance

      that field-tested positive for cocaine in the kitchen, along with digital scales and

      baggies. Police found $1,500 in a Louis Vuitton box in the second bedroom

      and $895 under the bed in the master bedroom, with Bluitt’s driver’s license in

      close proximity.


[6]   On June 6, 2016, the State filed an Information, charging Minor with multiple

      controlled substance offenses. She ultimately pled guilty to misdemeanor

      possession of marijuana and resisting law enforcement in exchange for

      dismissal of the other charges.


[7]   On December 5, 2016, the State filed a civil forfeiture Complaint, seeking the

      forfeiture of the $2,395 discovered during the search of Minor’s residence. On

      September 19, 2017, Minor answered that the entire amount belonged to her

      and was not the proceeds of any criminal activity. At the same time, she

      asserted a counterclaim, claiming that the officers took an additional $600 from

      her purse during the search. On April 15, 2018, Minor filed a motion for

      default judgment on her counterclaim and for the dismissal of the forfeiture

      Complaint under Indiana Trial Rule 41(E). On April 25, 2018, the State filed

      an answer to Minor’s counterclaim. On August 27, 2018, after a hearing, the


      Court of Appeals of Indiana | Memorandum Decision 19A-MI-954 | October 23, 2019   Page 3 of 11
      trial court denied Minor’s motion to dismiss on the ground that neither side had

      diligently prosecuted the case, but granted default judgment in favor of Minor

      as to liability on the counterclaim, and set a trial to determine damages on the

      State’s forfeiture Complaint and Minor’s counterclaim. The trial on damages

      was conducted on March 26, 2019 and the following day, the trial court issued

      its Decree of Foreclosure, concluding that the State failed to meet its burden of

      proof with respect to $1,500 located in the second bedroom, but granting the

      forfeiture in the amount of $895 found in the master bedroom.


[8]   Minor appealed. On August 13, 2019, after having reviewed the appeal, this

      court issued an Order directing the trial court to determine Minor’s damages on

      her counterclaim. On August 16, 2019, the trial court issued its order, awarding

      Minor damages in the amount of $600 and concluding:


              [The State] failed to answer the counterclaim and eventually, on
              August 27, 2018, this [c]ourt entered default judgment as to the
              counterclaim in favor or Minor. At the March 26, 2019 hearing,
              [the State] argues that there was only the uncorroborated
              testimony of Minor that she had $600 in her purse, and that her
              testimony was not credible. [The State] further argued that the
              police found no evidence of cash in her purse. However, the
              [c]ourt finds that [the State’s] argument at the March 26, 2019
              trial is irrelevant, because of [the State’s] failure to timely
              answer/deny the counterclaim.




      Court of Appeals of Indiana | Memorandum Decision 19A-MI-954 | October 23, 2019   Page 4 of 11
       (Trial Court’s Order Aug. 16, 2019, p. 1-2). 1


[9]    We now turn to the merits of Minor’s appeal. Additional facts will be provided

       if necessary.


                                  DISCUSSION AND DECISION
                                               I. Admission of Evidence


[10]   Minor contends that the trial court abused its discretion when it admitted, over

       hearsay and best evidence objections, Officer Burke’s testimony that he

       obtained a search warrant for the residence. The admissibility of evidence is

       within the sound discretion of the trial court. Scott v. State, 883 N.E.2d 147, 152

       (Ind. Ct. App. 2008). We will only reverse a trial court’s decision on the

       admissibility of evidence upon a showing of an abuse of that discretion. Id. An

       abuse of discretion may occur if the trial court’s decision is clearly against the

       logic and effect of the facts and circumstances before the court, or if the court

       has misinterpreted the law. Id. This court may affirm the trial court’s ruling if

       it is sustainable on any legal basis in the record, even though it was not the

       reason enunciated by the trial court. Moore v. State, 839 N.E.2d 178, 182 (Ind.

       Ct. App. 2005). We do not reweigh the evidence, and consider the evidence




       1
        The State informed this court that it “does not appear to have any interest regarding the counterclaim . . .
       and notifies this Court of its non-involvement with respect to that part of the appeal.” (State’s Br. p. 5, n.1).

       Court of Appeals of Indiana | Memorandum Decision 19A-MI-954 | October 23, 2019                       Page 5 of 11
       most favorable to the trial court’s ruling. Hirshey v. State, 852 N.E.2d 1008,

       1012 (Ind. Ct. App. 2006).


[11]   During the trial for damages, Officer Burke testified that he applied for and

       received a search warrant for the residence after Minor declined to give consent.

       Minor objected to the officer’s testimony, advising


               I’m going to object at this point in time to what anything
               discovered as a result of the search of the residence. It’s clear
               from the testimony that there was no consent, so if the search
               warrant was issued, I think it needs to be put into evidence. He cannot
               testify as to what a court has ordered or what a judge has signed.
               I mean that’s clearly hearsay. Certainly not the best evidence
               rule in violation of 1002. So until such time as they establish that
               they were legally inside the residence by admitting the search
               warrant, I don’t believe he can talk about what was found.


       (Transcript p. 9) (emphasis added). The trial court overruled the objection.


[12]   Despite Minor’s contention that her objection amounted to a challenge to the

       validity of the search warrant or the search, the argument supporting her

       objection clearly focuses on whether a warrant was issued. Minor did not argue

       that the warrant was invalid or unsupported by probable cause, nor did she

       argue that the search violated the Fourth Amendment of the United States

       Constitution or Article 1, Section 11 of the Indiana Constitution. Rather, the

       objection, as raised before the trial court, clearly implicates the existence of the

       warrant, not its validity, through the officer’s testimony.




       Court of Appeals of Indiana | Memorandum Decision 19A-MI-954 | October 23, 2019   Page 6 of 11
[13]   As a general rule, testimonial evidence and documentary evidence are both

       valid ways of proving the existence of facts. Witnesses may testify to facts or

       information within their personal knowledge. Steen v. State, 987 N.E.2d 159,

       162-63 (Ind. Ct. App. 2013). Here, Officer Burke testified from his own

       personal knowledge about the surrounding events leading up to the issuance of

       the search warrant and the obtaining of the search warrant. He was the officer

       who applied for and received the warrant from the judicial officer; he was not

       relaying information told by other officers. Officer Burke did not testify to the

       contents of the search warrant, he merely testified from his own personal

       knowledge that the search warrant existed, without repeating any out-of-court

       statement made by a declarant. See Ind. Evidence Rule 801 (defining hearsay).


[14]   Similarly, Officer Burke’s testimony did not violate the best evidence rule.

       Evidence Rule 1002 generally provides that an original writing is required “in

       order to prove its content.” However, the original is not required when the

       writing is “not closely related to a controlling issue.” Evid. R. 1004(d). Here,

       the State was not seeking to establish the content of the search warrant, nor was

       the warrant closely related to a controlling issue in the forfeiture proceeding.

       “[W]hen a witness has personal knowledge of the facts contained in the best

       evidence, the best evidence rule will not bar the witness’s testimony since the

       witness is not being asked to reveal the contents of the best evidence, but rather

       is being asked to recall his own independent observations.” Lopez v. State, 527

       N.E.2d 1119, 1125 (Ind. 1988) (holding that the best evidence rule was

       inapplicable where a witness was asked to relate the contents of a recorded


       Court of Appeals of Indiana | Memorandum Decision 19A-MI-954 | October 23, 2019   Page 7 of 11
       telephone call in which he was a participant). Thus, as Officer Burke had

       personal knowledge of the search warrant, even if he had testified as to the

       specific contents of the warrant, it would not have been a violation of the best

       evidence rule because he would merely have been recalling his own personal

       observations surrounding the warrant.


[15]   Therefore, based on the evidence before us, we find that the trial court properly

       admitted Officer Burke’s testimony.


                                         II. Sufficiency of the Evidence


[16]   Next, Minor contends that the State failed to establish by a preponderance of

       the evidence that the money found under the bed in the master bedroom is

       subject to forfeiture. In reviewing the sufficiency of the evidence supporting a

       forfeiture order, we only consider the evidence most favorable to the judgment

       and all reasonable inferences therefrom. Gonzalez v. State, 74 N.E.3d 1228, 1230

       (Ind. Ct. App. 2017). This court neither reweighs the evidence nor assesses the

       credibility of the witnesses. Id. If there is probative evidence supporting the

       trial court’s ruling, it will be affirmed. Id.


[17]   To obtain a forfeiture, the State must prove “by a preponderance of the

       evidence” that the property is subject to forfeiture. Ind. Code § 34-24-1-4(a).

       Under Indiana’s forfeiture statute, the State may forfeit “[a]ll money” that is

       “(A) furnished or intended to be furnished by any person in exchange for an act

       that is a 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

       Court of Appeals of Indiana | Memorandum Decision 19A-MI-954 | October 23, 2019   Page 8 of 11
       statute.” I.C. § 34-24-1-1(a)(2). In other words, the State must “establish a

       nexus between the property and the commission of the offense” that is more

       than “incidental or fortuitous.” Gonzalez, 74 N.E.3d at 1230.


[18]   The legislature has established a “rebuttable presumption” with respect to

       money and the commission of certain controlled substance offences. See I.C. §

       34-24-1-1(d). Money that is found “near or on a person who is committing,

       attempting to commit, or conspiring to commit” any of the enumerated offenses

       is presumed to have been used, or intended to be used, to facilitate the violation

       of a criminal statute or to be the proceeds of the violation of a criminal statute.

       See I.C. § 34-24-1-1(d). In other words, money that is found on or near a person

       who is committing an enumerated offence “is presumed forfeitable—period.”

       Caudill v. State, 613 N.E.2d 433, 438 (Ind. Ct. App. 1993). One of these

       enumerated offenses giving rise to the presumption is dealing cocaine or a

       narcotic drug under Indiana Code section 35-48-4-1. See I.C. § 34-24-1-1(d)(1).


[19]   Here, the statutory presumption was triggered as the money was found near

       Bluitt when he was committing the offense of dealing a narcotic drug. The

       State presented evidence that Bluitt and Minor lived together in the apartment.

       Bluitt opened the door when the officers arrived and he had personal effects in

       the residence. While the police found heroin and marijuana in the kitchen, they

       located $895 under the bed in the master bedroom, with Bluitt’s driver’s license

       next to the money. Bluitt subsequently pled guilty to Level 4 felony dealing in a

       narcotic drug. Accordingly, the rebuttable presumption is supported by



       Court of Appeals of Indiana | Memorandum Decision 19A-MI-954 | October 23, 2019   Page 9 of 11
       evidence indicating that $895 was the proceeds of or was intended to be used to

       facilitate Bluitt’s dealing offense.


[20]   To prevent application of the presumption, Minor appears to argue that the

       suspect, drugs, and money should all be located in the same room. However,

       as pointed out by the State, the residence was a single-floor apartment with the

       master bedroom and kitchen on the same floor and therefore in close proximity

       of each other and the residents. When Bluitt was in the apartment, he was near

       the kitchen, where the heroin was found, and the master bedroom, where the

       money was located. Although Minor also testified during the forfeiture

       proceeding that the money was hers which she had made by selling hair

       extensions, the trial court was not required to deem her testimony credible. See

       Wood v. State, 999 N.E.2d 1054, 1064 (Ind. Ct. App. 2013).


[21]   Therefore, based on the evidence before us, we conclude that the State

       presented sufficient evidence beyond a preponderance of the evidence that the

       money located under the bed in the master bedroom is subject to forfeiture.


                                             CONCLUSION
[22]   Based on the foregoing, we hold that the testimony surrounding the existence of

       the search warrant was properly admitted during the forfeiture proceeding and

       the State presented sufficient evidence to support the forfeiture of $895 found

       under the bed in the master bedroom.


[23]   Affirmed.


       Court of Appeals of Indiana | Memorandum Decision 19A-MI-954 | October 23, 2019   Page 10 of 11
[24]   Vaidik, C. J. and Bradford, J. concur




       Court of Appeals of Indiana | Memorandum Decision 19A-MI-954 | October 23, 2019   Page 11 of 11
