 Pursuant to Ind.Appellate Rule 65(D),
 this Memorandum Decision shall not be
                                                                           Mar 03 2014, 1:46 pm
 regarded as precedent or cited before any
 court except for the purpose of
 establishing the defense of res judicata,
 collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                               ATTORNEYS FOR APPELLEES:

STEPHEN GERALD GRAY                                   GREGORY F. ZOELLER
Indianapolis, Indiana                                 Attorney General of Indiana

                                                      KYLE HUNTER
                                                      Deputy Attorney General
                                                      Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

TANYA R. DAWSON,                        )
                                        )
      Appellant-Defendant,              )
                                        )
             vs.                        )                    No. 49A02-1308-MI-716
                                        )
STATE OF INDIANA, CITY OF INDIANAPOLIS, )
and INDIANAPOLIS METROPOLITAN POLICE )
DEPARTMENT,                             )
                                        )
      Appellees-Plaintiffs.             )


                      APPEAL FROM THE MARION SUPERIOR COURT
                            The Honorable Cynthia Ayers, Judge
                          The Honorable Burnett Caudill, Magistrate
                              Cause No. 49D04-1204-MI-15906


                                            March 3, 2014

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge
         Tonya R. Dawson appeals the denial of her motion for summary judgment in an action

filed by the State of Indiana, City of Indianapolis, and the Indianapolis Metropolitan Police

Department (collectively, the State) for the forfeiture of Dawson’s 2000 Chevy Tahoe.

Dawson presents the following restated issue for review: Did the trial court err in denying

Dawson’s motion for summary judgment?

         We affirm.

         The undisputed facts are that on February 22, 2012, Dawson’s son, Garfield McLayea,

Jr., sold cocaine to undercover police officers of the Indianapolis Metropolitan Police

Department and was arrested a short time later. McLayea left the scene of the transaction in

a 2000 Chevy Tahoe. During a search of the Tahoe following the arrest, police officers

found a large baggie of cocaine in the center console. Police also found in the center console

paperwork for the Tahoe from the Indiana Bureau of Motor Vehicles (BMV) bearing

McLayea’s name, as well as other information about the vehicle. The State filed a complaint

for forfeiture in relation to the Tahoe on April 22, 2012. BMV records showed that title of

the Tahoe transferred from McLayea to Dawson on the day of the arrest, i.e., February 22,

2012.1

         On September 10, 2012, Dawson filed a motion for summary judgment in the State’s

forfeiture action. In conjunction with her motion, Dawson submitted an affidavit stating as

follows:

         1.    I am an adult, competent to give testimony and make the

1
 The paperwork reflects that the vehicle was purchased, evidently by Dawson, on February 11, 2012.
Nevertheless, the title was issued on February 22, 2012.

                                                2
              representations herein based on first hand knowledge.

       2.     I have read and reviewed the factual assertions contained in
              Defendant’s Memorandum In Support Of Summary Judgment, and
              hereby ratified them and incorporate each and every one into this
              affidavit as if fully set forth herein.

       3.     I am the owner and title holder of a 2000 CHEVROLET TAHOE
              which was acquired lawfully.

       4.     I have never used the vehicle unlawfully nor have I ever intended the
              vehicle to be used to transport any controlled substance in violation of
              the law.

       5.     I was unaware that my vehicle was used in any criminal activity,
              assuming that it was, and I had no reason to know or suspect my
              vehicle was used to transport anything illegal.

Appellant’s Appendix at 18 (emphasis in original). In response to Dawson’s motion, the

State designated the probable cause affidavit related to McLayea’s crime, a certified copy of

the BMV records pertaining to ownership of the vehicle, and what purported to be a

transcript of Dawson’s deposition in the criminal case against her son. In that deposition,

Dawson testified that McLayea had difficulty discerning right from wrong, and “might” be

convinced by others to commit a crime. Id. at 48. She also testified that he had been in jail

“50 or 60 times.” Id. at 37. Finally, she testified that she did not “have any control over what

he does.” Id. at 45. Dawson thereafter moved to strike the deposition transcript on grounds

that it was “unsigned, unverified, and not authenticated by any qualified person, and

therefore is incompetent evidence pursuant to T.R. 56.” Id. at 50. Following a hearing, the

trial court granted Dawson’s motion to strike but denied her motion for summary judgment.

The trial court later granted Dawson’s motion to certify for interlocutory appeal its denial of


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her motion for summary judgment. We accepted jurisdiction and this appeal ensued.

       Dawson contends the trial court erred in denying her motion for summary judgment.

The specific issue presented is whether the evidence designated by the parties supports her

claim that no genuine issue of material fact remains on the question of whether she was

entitled to prevail on the “innocent owner” defense to an action for forfeiture. According to

that defense, seizure is appropriate only when “the prosecuting attorney [shows] by a

preponderance of the evidence that 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.” Ind. Code Ann. § 34-24-1-4(a) (West, Westlaw current through

2013 1st Reg. Sess. & 1st Reg. Technical Sess.).

       Our review of rulings on summary judgment motions is well settled:

       On appeal of the grant or denial of a motion for summary judgment, we apply
       the same standard applicable to the trial court. The moving party “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.” Gill v.
       Evansville Sheet Metal Works, Inc., 970 N.E.2d 633, 637 (Ind. 2012). If the
       moving party meets this burden, then the non-moving party must designate
       evidence demonstrating a genuine issue of material fact. Id. Review is limited
       to those facts designated to the trial court, Ind. Trial Rule 56(H), and summary
       judgment is appropriate where the designated evidence “shows that there is no
       genuine issue as to any material fact and that the moving party is entitled to a
       judgment as a matter of law,” id. 56(C). In applying the facts to the law, “[a]ll
       facts and reasonable inferences drawn from those facts are construed in favor
       of the non-moving party.” Mangold ex rel. Mangold v. Ind. Dep’t of Natural
       Res., 756 N.E.2d 970, 973 (Ind. 2001). “We must carefully review a decision
       on a summary judgment motion to ensure that a party was not improperly
       denied its day in court.” Id. at 974.

F.D. v. Ind. Dep’t of Child Servs., 1 N.E.3d 131, ___ (Ind. 2013) (some internal citations

omitted).

                                              4
       In her affidavit, Dawson stated that she was the titled owner of the Tahoe and never

intended it to be used to transport controlled substances, nor did she know that it was used in

any criminal activity. She further stated that she had no reason to know or suspect that her

vehicle was used to transport illegal contraband. Essentially, Dawson denied the existence of

the elements the State was required to prove under I.C. § 34-24-1-4(a) in order to obtain

forfeiture of her vehicle. In opposition, the State designated evidence showing that on the day

of the offense, the paperwork in the Tahoe reflected that McLayea was the vehicle’s owner.

The State also designated evidence, in the form of BMV records, indicating that transfer of

the ownership of the vehicle was not completed until the day of the offense. The timing of

the transfer of ownership vis-à-vis the date of the offense is sufficient to create a genuine

issue of material fact as to whether those two events were somehow related, or whether

Dawson knew or had reason to know that the vehicle was being used in the commission of

the offense. Therefore, the trial court did not err in denying Dawson’s motion for summary

judgment.

       Judgment affirmed.

KIRSCH, J., and BAILEY, J., concur.




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