MEMORANDUM DECISION
                                                                          FILED
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as                          Feb 06 2020, 8:55 am

precedent or cited before any court except for the                        CLERK
purpose of establishing the defense of res judicata,                  Indiana Supreme Court
                                                                         Court of Appeals
collateral estoppel, or the law of the case.                               and Tax Court




ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Stephen Gerald Gray                                    Curtis T. Hill, Jr.
Indianapolis, Indiana                                  Attorney General of Indiana
                                                       Justin F. Roebel
                                                       Supervising Deputy Attorney General
                                                       Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

$17,084.00 in United States                                February 6, 2020
Currency and Edward Weaver,                                Court of Appeals Case No.
Appellants-Defendants,                                     19A-MI-1710
                                                           Appeal from the Marion Superior
        v.                                                 Court
                                                           The Hon. Gary Miller, Judge
State of Indiana,                                          Trial Court Cause No.
Appellee-Plaintiff.                                        49D03-1809-MI-38346




Bradford, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-MI-1710 | February 6, 2020              Page 1 of 10
                                          Case Summary
[1]   In September of 2018, Edward Weaver was driving a truck in Indianapolis and

      was stopped after being involved in a mobile shoot-out with another vehicle.

      Approximately $17,000.00 was found on Weaver’s person and in the truck,

      along with three handguns and various controlled substances. A search of the

      area where the shoot-out began yielded a one-half kilogram package of white

      powder that appeared to be cocaine, but was later determined not to be. The

      State filed a forfeiture action to seize the approximately $17,000.00, and

      Weaver moved for summary judgment. The trial court denied Weaver’s

      motion for summary judgment and, after a bench trial, granted the State’s

      forfeiture request. Weaver contends that the trial court erred in denying his

      summary-judgment motion and that the State produced insufficient evidence to

      sustain a forfeiture of the money. Because we disagree with both contentions,

      we affirm.


                            Facts and Procedural History
[2]   Early on September 19, 2018, Indianapolis Metropolitan Police Officer Michael

      Finch was parked near 38th Street and Sherman Drive in Indianapolis when he

      heard two or three gunshots. As Officer Finch was driving out of the parking

      lot to investigate, he heard two vehicles squealing their tires and observed two

      vehicles, at least one a truck, eastbound on 38th Street toward Sherman Drive,

      exchanging gunfire. Officer Finch engaged his lights and siren while following

      the vehicles. When one of the vehicles, a truck, abruptly turned south on

      Sherman Drive, Officer Finch pursued, and the truck stopped soon thereafter.

      Court of Appeals of Indiana | Memorandum Decision 19A-MI-1710 | February 6, 2020   Page 2 of 10
[3]   The doors of the truck opened, and Weaver emerged. The agitated Weaver did

      not comply with Officer Finch’s commands, had suffered a superficial head

      wound, and was eventually handcuffed. Officer Finch observed a white,

      powdery substance on the backseat of the truck, and Weaver had approximately

      $14,000.00 in cash on his person. Officer Finch saw two or three handguns in

      the truck and found no records indicating that any of the three occupants had a

      license to carry those weapons.

[4]   The truck was searched, and officers found approximately sixty buprenorphine

      pills, twenty-seven Suboxone strips, and a number of Xanax pills, none of

      which were in original packaging. Officers also recovered approximately

      $3000.00 from the truck. Although the number of pills and Suboxone strips

      found could be consistent with either drug dealing or personal use, it was not

      normal to find a drug user with three types of narcotics.

[5]   Shortly after the stop, Officer Linda Roeschlein went to the area on 38th Street

      where Officer Finch had first heard shots to look for shell casings. Officer

      Roeschlein found a taped-up but ripped-open package of a chunky powder the

      “size of a brick” that appeared to be cocaine. Tr. Vol. II p. 53. The package

      was in the middle of the road and “would have probably been smashed” if it

      had been there the entire day. Tr. Vol. II p. 55–56. As it happened, later testing

      revealed that the package did not, in fact, contain cocaine. The package

      weighed approximately one-half kilogram and would have had a street value of

      approximately $17,000.00 had it been cocaine.




      Court of Appeals of Indiana | Memorandum Decision 19A-MI-1710 | February 6, 2020   Page 3 of 10
[6]   On September 24, 2018, the State filed a complaint seeking forfeiture of the

      $17,084.00 in currency which had been seized. The complaint alleged the

      “currency had been furnished or was intended to be furnished in exchange for

      violation of criminal statute, or is traceable as proceeds of violation of criminal

      statute, in violation of Indiana law, as provided in I.C. 34-24-1-1.” Appellant’s

      App. Vol. II p. 11. On February 25, 2019, Weaver moved for summary

      judgment, alleging that the State had not proven any nexus between the money

      and qualifying criminal activity. In support, Weaver designated the forfeiture

      complaint and the charging information, probable-cause affidavit, laboratory

      report, and State’s motion to dismiss cocaine-related charges from criminal

      cause number 49G21-1809-F2-32387.

[7]   On March 22, 2019, the State responded, arguing that forfeiture of the money

      was warranted even in the absence of any actual cocaine because the sale of a

      substance represented to be a controlled substance is also a crime supporting

      forfeiture. On May 8, 2019, the trial court denied Weaver’s summary-

      judgement motion. On June 26, 2019, a bench trial was held, and, on July 17,

      2019, the trial court entered judgment in favor of the State.


                                 Discussion and Decision
                             I. Summary-Judgment Motion
[8]   When reviewing the denial of a summary-judgment motion, we apply the same

      standard as that of the trial court. Smith v. Delta Tau Delta, Inc., 9 N.E.3d 154,

      160 (Ind. 2014). Summary judgment is precluded by any genuine issue of

      material fact, “that is, any issue requiring the trier of fact to resolve the parties’

      Court of Appeals of Indiana | Memorandum Decision 19A-MI-1710 | February 6, 2020   Page 4 of 10
       differing accounts of the truth.” Hughley v. State, 15 N.E.3d 1000, 1003 (Ind.

       2014). The moving party has the burden of making a prima facie showing from

       the designated evidentiary matter that there are no genuine issues of material

       fact and that it is entitled to judgment as a matter of law. Smith, 9 N.E.3d at

       160. If the moving party satisfies this burden, then the non-moving party must

       show from the designated evidentiary matter the existence of a genuine issue of

       fact precluding summary judgment. Id. The court considers only the

       designated evidentiary matters, and all evidence and inferences are reviewed in

       the light most favorable to the non-moving party. Id.; Ind. Trial Rule 56(C).

[9]    Weaver was not entitled to summary judgment because his designated evidence

       did not establish the absence of a genuine issue of material fact. The “moving

       party bears the burden of specifically designating materials that make a prima

       facie showing that there are no genuine issues of material fact and that the

       moving party is entitled to a judgment as a matter of law.” Allen v. Hinchman,

       20 N.E.3d 863, 869 (Ind. Ct. App. 2014), trans. denied. Prima facie may be

       defined as “‘[s]ufficient to establish a fact or raise a presumption unless

       disproved or rebutted; based on what seems to be true on first examination,

       even though it ma[y] later be proved to be untrue.’” City of Gary v. Auto-Owners

       Ins. Co., 116 N.E.3d 1116, 1123 (Ind. Ct. App. 2018) (citation omitted).

[10]   Indiana law permits the State to seek forfeiture of all money “furnished or

       intended to be furnished by any person in exchange for an act that is in

       violation of a criminal statute [or] traceable as proceeds of the violation of a

       criminal statute” for crimes or attempts which are a violation of Indiana Code

       Court of Appeals of Indiana | Memorandum Decision 19A-MI-1710 | February 6, 2020   Page 5 of 10
       chapter 35-48-4. Ind. Code § 34-24-1-1(a)(2). Weaver claims he made a prima

       facie showing that he is entitled to summary judgment because (1) the apparent

       brick of cocaine was not actually cocaine and (2) Weaver’s cocaine-related

       charges had been dismissed. As the State points out, however, the sale of a

       look-a-like drug is also a crime defined in Indiana code chapter 35-48-4, thereby

       supporting the forfeiture of money shown to be connected to it. See Ind. Code

       §§ 35-48-4-4.5 (repealed effective July 1, 2019), 35-48-4-4.6 (enacted effective

       July 1, 2019) (“A person who knowingly or intentionally […] delivers [or]

       finances the delivery of [….] a substance represented to be a controlled

       substance commits a Level 6 felony.”).

[11]   That said, Weaver’s designated evidence—which included the probable cause

       affidavit—easily generates a question of a material fact about whether the

       money was related to dealing a substance represented to be cocaine.

       Specifically, one-half kilogram of apparent cocaine was found at the location in

       the street where a gunfight started between two vehicles, one of which was

       begin driven by Weaver. When Weaver was stopped, police found multiple

       handguns; many types of narcotics; and a white, powdery substance in his

       vehicle, while Weaver was found in possession of an amount of currency which

       is consistent with the street value of one-half kilogram of cocaine. While the

       apparent cocaine was ultimately shown to not be genuine, a reasonable

       inference is that Weaver either sold (or attempted to sell) or bought (or

       attempted to buy) a white powder meant to be taken as packaged cocaine. Any

       of these scenarios amounts to a crime supporting forfeiture. Put another way,


       Court of Appeals of Indiana | Memorandum Decision 19A-MI-1710 | February 6, 2020   Page 6 of 10
       even though the package was found to not contain any cocaine, that does not

       eliminate the possibility of the money being related to an offense such that

       forfeiture is supportable. Weaver did not meet his initial burden to show he

       was entitled to summary denial of the forfeiture complaint. 1

                                II. Sufficiency of the Evidence
[12]   The standard of review for challenges to the sufficiency of the evidence

       supporting civil judgments is the same as that in criminal cases. Lipscomb v.

       State, 857 N.E.2d 424, 427 (Ind. Ct. App. 2006) (applying sufficiency standard

       to a forfeiture). The court will neither reweigh the evidence nor reassess the

       credibility of witnesses. Gonzalez v. State, 74 N.E.3d 1228, 1230 (Ind. Ct. App.

       2017). “When there is substantial evidence of probative value to support the

       trial court’s ruling, it will not be disturbed.” Id. We “will reverse only when we

       are left with a definite and firm conviction that a mistake has been made.” Id.

[13]   “Civil forfeiture is a device, a legal fiction, authorizing legal action against

       inanimate objects for participation in alleged criminal activity, regardless of

       whether the property owner is proven guilty of a crime—or even charged with a

       crime.” Serrano v. State, 946 N.E.2d 1140, 1140 (Ind. 2011). To obtain the right

       to dispose of property, use the property, or recover law enforcement costs, the




       1
         Because Weaver failed to make a prima facie showing that he is entitled to summary judgment on the basis
       that there was no actual cocaine, we need not address the question of whether the State successfully rebutted
       such a showing. For the same reason, we also need not address Weaver’s argument that the trial court
       improperly relied upon the probable-cause affidavit from his criminal case, as Weaver contends only that the
       State improperly used it to rebut his alleged prima facie showing.

       Court of Appeals of Indiana | Memorandum Decision 19A-MI-1710 | February 6, 2020                 Page 7 of 10
       State must demonstrate by a preponderance of the evidence that the property

       was subject to seizure pursuant to Indiana’s forfeiture statute. Ind. Code § 34-

       24-1-4(a)1; Serrano, 946 N.E.2d at 1142–43.

[14]   The Indiana Supreme Court has noted the following:

               In Kantner v. State, 655 N.E.2d 345 (Ind. 1995), this Court held
               that to sustain a forfeiture the State must demonstrate that the
               property sought in forfeiture was used to commit one of the
               enumerated offenses under the statute. This nexus, we said, best
               articulates the statute’s requirement of proof by a preponderance
               that the property is subject to forfeiture. Id. at 349. Requiring
               such proof, Justice Selby wrote, is a “means to guarantee that the
               government is seizing actual instrumentalities of illegal drug
               trade…. Depriving persons of their property such as vehicles
               unrelated to the drug trade will do little to advance our
               Legislature’s intent.” Id. at 349. Drawing a comparison to the
               Seventh Circuit’s application of federal statutes, we held that our
               statute “requires more than an incidental or fortuitous connection
               between the property and the underlying offense.” Id. at 348–49
               (comparing our statute to the federal act discussed in United States
               v. 916 Douglas Avenue, 903 F.2d 490 (7th Cir. 1990)).
       Serrano, 946 N.E.2d at 1143 (ellipsis in Serrano).

[15]   Weaver argues that the State failed to produce any evidence connecting the

       $17,084.00 to any illegal activity that would support forfeiture. We disagree.

       Officer Finch testified that he observed a white, powdery substance on the

       backseat of the truck, Weaver had approximately $14,000.00 on his person, and

       approximately $3000.00 more was recovered from the truck. Officer Finch saw

       two or three handguns in the truck and found no records indicating that any of

       its three occupants had a license to carry those weapons. Officers found


       Court of Appeals of Indiana | Memorandum Decision 19A-MI-1710 | February 6, 2020   Page 8 of 10
       approximately sixty buprenorphine pills, twenty-seven Suboxone strips, and a

       number of Xanax pills, none of which were in original packaging. Finally, the

       State produced evidence linking Weaver to the truck, which was registered to

       Takeisha Young, Weaver’s girlfriend and the mother of his child. This

       evidence, as a whole, leads to an inference that Weaver was involved in drug

       dealing in general.

[16]   As for the brick of apparent cocaine in particular, Officer Roeschlein testified

       that she was sent to the area where the mobile shoot-out began and found a

       taped-up but ripped-open package of a chunky powder the size of a brick that

       appeared to be cocaine in the middle of the road. The package weighed

       approximately one-half kilogram and would have had a street value of

       approximately $17,000.00 had it been cocaine, a figure very close to the

       $17,084.00 recovered from Weaver’s person and the truck. There is more than

       enough to infer that Weaver either sold or attempted to sell a substance he

       represented to be cocaine, or attempted to buy a substance represented to be

       cocaine, and that the $17,084.00 was transferred (or intended to be transferred)

       in the drug deal gone bad.2 Weaver argues that there is no evidence linking him

       to any of the drugs or guns or that any of the money was obtained illegally.

       This is nothing more than an invitation to reweigh the evidence, which we will

       not do. See Gonzalez, 74 N.E.3d at 1230. Based on this record, we have little




       2
         Another reasonable inference is that the buyers becoming aware of the true nature of the package is what
       led to the gunfight.

       Court of Appeals of Indiana | Memorandum Decision 19A-MI-1710 | February 6, 2020                Page 9 of 10
       trouble concluding that the State produced ample evidence to establish a nexus

       between the money and the underlying offense of dealing a substance

       represented to be controlled substance.

[17]   We affirm the judgment of the trial court.


       Robb, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-MI-1710 | February 6, 2020   Page 10 of 10
