                    NOTICE: NOT FOR OFFICIAL PUBLICATION.
       UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT
          PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
            ARIZONA COURT OF APPEALS
                                DIVISION ONE


                              In re the Matter of:

                        2002 LINCOLN LLS ET AL.


                 STATE OF ARIZONA, Plaintiff/Appellee,

                                       v.

               MARINA BOBADILLA, Claimant/Appellant.

                            No. 1 CA-CV 14-0376
                              FILED 5-28-2015


          Appeal from the Superior Court in Maricopa County
                         No. CV2012-008209
                 The Honorable Mark H. Brain, Judge

                                 AFFIRMED


                                  COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Peter S. Spaw
Counsel for Plaintiff/Appellee

Mathew & Associates, Phoenix
By Ivan K. Mathew
Counsel for Claimant/Appellant
                           STATE v. BOBADILLA
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Maurice Portley and Judge John C. Gemmill joined.


B R O W N, Judge:

¶1            In this civil in rem forfeiture action, Marina Bobadilla appeals
the superior court’s order directing forfeiture of two vehicles and $200,000
in currency (“Forfeited Property”).             Bobadilla argues the court
impermissibly penalized her at the evidentiary hearing by precluding
evidence regarding her purported ownership of the Forfeited Property. For
the reasons that follow, we affirm.

                              BACKGROUND

¶2             During an investigation into activities suspected to involve
the transportation and sale of illegal drugs, law enforcement personnel
executed search warrants at Bobadilla’s residence and safety deposit box
and seized the Forfeited Property. In response to the State’s notice of
pending forfeiture pursuant to Arizona Revised Statutes (“A.R.S.”) sections
13-4301 to -4315 (“Forfeiture Statutes”), Bobadilla filed a verified claim
objecting to the forfeiture and asserting her ownership interest in the
Forfeited Property.       Bobadilla also asserted that “any additional
information concerning the circumstances of the acquisition of her property
is protected under the Fifth Amendment to the United States Constitution.”
The State then filed a complaint, alleging that the Forfeited Property
constituted proceeds of a transaction involving prohibited drugs or
proceeds used or intended to be used to facilitate such a transaction. The
State further asserted the currency was owned by a male defendant in a
collateral criminal action. To resolve the matter, the court set an evidentiary
hearing.

¶3           The State deposed Bobadilla, and she invoked her Fifth
Amendment privilege against self-incrimination when asked questions
regarding the circumstances of her possession of the forfeited currency.1

1        The applicable clause of the Fifth Amendment states: “No person
. . . shall be compelled in any criminal case to be a witness against himself[.]”
U.S. Const. amend. V.


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                          STATE v. BOBADILLA
                           Decision of the Court

The State filed a motion to compel Bobadilla’s deposition testimony, and,
after hearing argument, the superior court ordered “that Marina Bobadilla
will be limited to what she testified to at [her] deposition. If she wishes to
supplement that testimony, she must alert [counsel for the State] by January
10, 2014 and submit to a deposition.” Bobadilla did not seek to be deposed
to provide additional information.

¶4            At the evidentiary hearing, the superior court prohibited
Bobadilla from introducing documents and witness testimony purportedly
relating to her ownership of the Forfeited Property.2 The court therefore
vacated the hearing, ordered Bobadilla’s claim stricken, and entered an
order of forfeiture with respect to the Forfeited Property. Bobadilla
appealed.

                               DISCUSSION

¶5            Bobadilla argues that by precluding her proffered evidence at
the forfeiture hearing, the superior court impermissibly penalized her for
asserting her rights under the Fifth Amendment. Bobadilla also asserts that
the court was required to state on the record that it considered less drastic
measures before striking her claim. In support of her arguments, Bobadilla
relies almost exclusively on Wohlstrom v. Buchanan, 180 Ariz. 389 (1994).

¶6           When contesting the State’s forfeiture of personal property, a
claimant must first establish standing by showing through a preponderance
of evidence that he or she is an owner or interest holder in the seized




2      Although Bobadilla did not include any certified transcripts in the
record on appeal pursuant to Arizona Rule of Civil Appellate Procedure
(“ARCAP”) 11(b)(1), she submitted a copy of the evidentiary hearing’s
transcript prepared by a “transcriptionist” in the appendix to her opening
brief. See Ariz. R. Sup. Ct. 30(a) (defining “authorized transcriber”).
Bobadilla similarly included a copy of the transcript from the oral argument
on the State’s motion to compel. The State does not object to Bobadilla’s
failure to properly include the transcripts in the record, nor does the State
question the propriety of the “transcriptionist’s” preparation of the
transcripts under Supreme Court Rule 30. We therefore consider the
transcripts as part of the record on appeal.




                                      3
                          STATE v. BOBADILLA
                           Decision of the Court

property.3 A.R.S. § 13-4310(D).     In filing a claim, A.R.S. § 13-4311(E)
mandates, in relevant part:

      The claim shall be signed by the claimant under penalty of
      perjury and shall set forth all of the following:

      ...

      3. The nature and extent of the claimant’s interest in the
      property.

      4. The date, the identity of the transferor and the
      circumstances of the claimant’s acquisition of the interest in
      the property.

¶7            Our supreme court in Wohlstrom addressed the interplay
between these statutory provisions. In that case, Tucson Airport Authority
police seized $127,000 in currency found in Wohlstrom’s luggage after
being informed by a federal agent that Wohlstrom was suspected of
narcotic trafficking. 180 Ariz. at 390. The State commenced forfeiture
proceedings pursuant to the Forfeiture Statutes. In his amended claim,
Wohlstrom alleged the following:

      2. The United States Currency in the amount of $127,000.00
      which is the subject matter of this case is the personal
      property of Mr. Wohlstrom. The currency belongs to him,
      and was taken from his possession on November 11, 1991.

      3. Claimant acquired the U.S. Currency that is the subject
      matter of this case in Philadelphia, Pennsylvania, earlier in the
      day on which it was seized, November 11, 1991.

Id.

¶8           Similar to Bobadilla, Wohlstrom also alleged: “Claimant
contends that any additional information concerning the circumstances of


3      If a complainant sufficiently establishes standing, the State has the
burden to establish by a preponderance of evidence that the seized property
is subject to forfeiture under A.R.S. § 13-4304. A.R.S. § 13-4311(M). The
burden then shifts to the claimant to prove by a preponderance of evidence
that his or her interest in the property is exempt from forfeiture under
A.R.S. § 13-4304. Id. This case involves only the initial requirement that
Bobadilla, as the claimant, was required to prove she had standing.

                                     4
                           STATE v. BOBADILLA
                            Decision of the Court

the acquisition of his property is protected under the Fifth Amendment to
the United States Constitution, and Article 2, § 10 of the Arizona
Constitution.” Id. The State moved to strike Wohlstrom’s amended claim
for failure to comply with A.R.S. § 13-4311(E). The trial court granted the
State’s motion, holding that Wohlstrom lacked standing based on his
amended claim’s non-compliance with the statute.

¶9             Wohlstrom sought special action relief, arguing A.R.S. § 13-
4311(E) violates the Fifth Amendment because it forced him to choose
between invoking the privilege against self-incrimination and contesting
the forfeiture. Id.at 390. The supreme court agreed and found the statute
unconstitutional as applied.4 Id. at 391, 395. In doing so, the court
determined that the trial court, by striking Wohlstrom’s claim based on his
invocation of the privilege, impermissibly foreclosed Wohlstrom’s “ability
to intervene in the proceedings, virtually assuring a forfeiture.” Id. at 391.

¶10            Here, the superior court did not force Bobadilla to choose
between asserting her Fifth Amendment privilege and contesting the
forfeiture. Unlike Wohlstrom, the court did not strike her claim before she
had the opportunity to present evidence. Instead, at the forfeiture hearing,
the court allowed Bobadilla to present offers of proof as to the witnesses’
testimony and documents that she sought to admit into evidence. Bobadilla
readily admitted that none of her prospective witnesses would testify
regarding her acquisition of the Forfeited Property; rather, she explained
each witness would testify merely that she possessed the Forfeited Property.
The court precluded Bobadilla’s proffered testimony on evidentiary
grounds, concluding the evidence was irrelevant to the standing issue.
Indeed, as the court explained to Bobadilla: “People have possession of all
sorts of things they don’t own. The question is how did you come across it,
how did you become the owner?” See United States v. $133,420.00 in U.S.
Currency, 672 F.3d 629, 638-39 (9th Cir. 2012) (concluding “in a civil
forfeiture action, a claimant’s bare assertion of an ownership or possessory
interest, in the absence of some other evidence, is not enough to survive a
motion for summary judgment. . . . Unexplained naked possession of a cash
hoard . . . does not rise to the level of the possessory interest requisite for
standing to attack the forfeiture proceeding at the summary judgment
stage”) (internal quotation marks and citation omitted).

¶11         On appeal, Bobadilla does not meaningfully or properly
argue the court erred in determining this proffered testimony was


4      This court declined jurisdiction over Wohlstrom’s special action
petition. Wohlstrom, 180 Ariz. at 390.

                                      5
                           STATE v. BOBADILLA
                            Decision of the Court

irrelevant. See A.R.S. § 13-4310(E)(1) (“The law of evidence relating to civil
actions applies equally to all parties, including the state, an applicant, a
petitioner, a claimant and a defendant, on all issues required to be
established by a preponderance of the evidence.”); A.R.S. § 13-4311(B)
(“Judicial in rem forfeiture proceedings are in the nature of an action in rem
and are governed by the Arizona rules of civil procedure unless a different
procedure is provided by law.”); Ariz. R. Evid. 402 (“Irrelevant evidence is
not admissible.”). As for Bobadilla’s proffered documents, the court
precluded their admission on various grounds, including relevance,
hearsay, and lack of foundation. Again, Bobadilla does not properly
develop an argument challenging the court’s rulings.

¶12            An appellant must present significant arguments, set forth his
or her position on the issues raised, and include citations to relevant
authorities, statutes, and portions of the record. See ARCAP 13(a)(7). The
failure to present an argument in this manner usually constitutes
abandonment and a waiver of that issue. State v. Moody, 208 Ariz. 424, 452
n.9, ¶ 101 (2004); see also Cullum v. Cullum, 215 Ariz. 352, 355 n.5, ¶ 14 (App.
2007) (holding appellate courts “will not consider argument posited
without authority”).

¶13          On this record, and absent controlling authority, we cannot
conclude that the trial court committed reversible error.

                               CONCLUSION

¶14           The superior court’s order of forfeiture is affirmed.




                                   :ama




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