MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be
                                                                         Jan 31 2019, 6:29 am
regarded as precedent or cited before any
court except for the purpose of establishing                                  CLERK
                                                                          Indiana Supreme Court
the defense of res judicata, collateral                                      Court of Appeals
                                                                               and Tax Court

estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Larry W. Wilson                                          Curtis T. Hill, Jr.
Branchville, Indiana                                     Attorney General of Indiana
                                                         Justin F. Roebel
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA
Larry W. Wilson,                                         January 31, 2019
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         82A05-1711-MI-2645
        v.                                               Appeal from the Vanderburgh
                                                         Circuit Court
State of Indiana ex rel.                                 The Honorable David D. Kiely,
Evansville-Vanderburgh County                            Judge
Drug Task Force,                                         The Honorable Kelli E. Fink,
Appellee-Petitioner.                                     Magistrate
                                                         Trial Court Cause No.
                                                         82C01-1607-MI-3616



Mathias, Judge.



Court of Appeals of Indiana | Memorandum Decision 82A05-1711-MI-2645 | January 31, 2019           Page 1 of 12
[1]   Larry W. Wilson (“Wilson”) appeals the judgment of the Vanderburgh Circuit

      Court in favor of the State of Indiana on behalf of the Evansville-Vanderburgh

      County Drug Task Force (“the State”) in the State’s in rem complaint for

      forfeiture against $1,594 in U.S. currency that was confiscated during Wilson’s

      arrest for various drug offenses. Wilson presents two issues on appeal, which

      we restate as: (1) whether the State’s complaint for forfeiture was timely filed;

      and (2) whether the State presented sufficient evidence to establish that the

      money seized was connected to Wilson’s criminal acts sufficient to subject the

      money to forfeiture.


[2]   We affirm.


                                 Facts and Procedural History
[3]   In the summer of 2016, the Evansville Police Department (“EPD”) received

      complaints that Wilson was dealing drugs out of his apartment and had

      threatened other tenants of the apartment complex with a gun. Police began an

      investigation into the allegations. On July 14, 2016, the police stopped two men

      after they had visited Wilson’s apartment. These men were found in possession

      of methamphetamine, and both admitted they had purchased the

      methamphetamine from Wilson. One of the men also confirmed that Wilson

      had a handgun.


[4]   The police then obtained a warrant to search Wilson’s apartment. The police

      executed the warrant on July 15, 2016, and found methamphetamine,

      marijuana, prescription drugs, digital scales, glass pipes, and two handguns.

      Court of Appeals of Indiana | Memorandum Decision 82A05-1711-MI-2645 | January 31, 2019   Page 2 of 12
      The officers also discovered $1,002 in cash lying on the bed. The only two

      people in the apartment were Wilson and his girlfriend. A search of Wilson’s

      person revealed an additional $592 in cash in his pocket.


[5]   That same day, the State charged Wilson with Count I, Level 3 felony dealing

      in methamphetamine; Count II, Level 3 felony dealing in a narcotic drug;

      Count III, Level 4 felony unlawful possession of a firearm by a serious violent

      felon; Count IV, Level 6 felony maintaining a common nuisance. Count V,

      Class B misdemeanor possession of marijuana; and Count VI, Class C

      misdemeanor possession of paraphernalia. The State also alleged that Wilson

      was an habitual offender.

[6]   On July 25, 2016, the State filed an in rem complaint seeking forfeiture of the

      $1,594 in cash found on or near Wilson at the time of his arrest. The State

      initially sent service of process to Wilson by the sheriff’s department that same

      day, but the service was deemed failed on July 28, 2016, because it was “not

      deliverable as address[ed].” Appellant’s App. pp. 160–61.


[7]   On November 14, 2016, Wilson entered into a plea agreement with the State

      and pleaded guilty to Count III, Level 4 felony unlawful possession of a

      handgun by a serious violent felon. He also pleaded guilty to Count II, but as a




      Court of Appeals of Indiana | Memorandum Decision 82A05-1711-MI-2645 | January 31, 2019   Page 3 of 12
      lesser-included Level 6 felony.1 On January 10, 2017, the trial court sentenced

      Wilson to an aggregate term of seven years executed.

[8]   In the forfeiture action, the State again attempted to serve process on Wilson

      via the sheriff’s department on January 27, 2017. This attempt was delayed

      because Wilson had been transferred to the Department of Correction. The

      State again attempted service on March 1, 2017, and Wilson was finally served

      while in custody of the Department of Correction. On March 23, 2017, Wilson

      filed an objection to the request for forfeiture.

[9]   The trial court held a bench trial on the complaint for forfeiture on June 9,

      2017. Wilson testified that the money and drugs were found in a “lockbox,”

      that belonged to the woman living with him. Tr. p. 27. Wilson also indicated

      that he did not object to the forfeiture of the money found on the bed because,

      he claimed, he did not know where that money came from. In contrast to the

      money found on the bed, Wilson claimed that the $592 found on his person

      was cash he was saving from his job as a construction worker and denied that

      he had earned the money selling drugs. In support of this claim, Wilson offered

      into evidence a W-2 tax form showing that he had earned over $7,000 that year

      working for a construction company. Wilson admitted that he had pleaded




      1
        There is no crime of Level 6 felony dealing in a narcotic drug. See Ind. Code § 35-48-4-1 (defining dealing in
      cocaine or a narcotic drug as a Level 5 to Level 2 felony depending upon the circumstances of the crime). We
      take this to mean that Wilson pleaded guilty to Level 6 felony possession of a narcotic drug as a lesser-included
      offense of the charged crime of Level 3 dealing in a narcotic drug. See Ind. Code § 35-48-4-6(a) (defining
      possession of a narcotic drug as a Level 6 felony).

      Court of Appeals of Indiana | Memorandum Decision 82A05-1711-MI-2645 | January 31, 2019             Page 4 of 12
       guilty but stated that his conviction was “supposed to be[] possession.”2 Tr. p.

       29. He also admitted to regularly using methamphetamine and marijuana. The

       trial court took the matter under advisement and issued an order granting the

       complaint for forfeiture on June 23, 2017. Wilson now appeals.


                                              In Rem Forfeiture
[10]   As our supreme court explained in Serrano v. State:


                In rem forfeiture is an ancient concept under which courts
                obtained jurisdiction over property when it was virtually
                impossible to seek justice against property owners guilty of
                violating maritime law because they were overseas. Civil
                forfeiture traces to ancient Roman and medieval English law;
                both made objects used to violate the law subject to forfeiture to
                the sovereign. Civil forfeiture is no longer tethered to difficulties
                in obtaining personal jurisdiction over an individual. It now
                serves as one of the most potent weapons in the judicial
                armamentarium[.] Civil forfeiture is a leading method for
                imposing economic sanctions against narcotics traffickers.

                Today, all states have statutory provisions for some form of asset
                forfeiture, and there are more than four hundred federal forfeiture
                statutes relating to various federal crimes. An important feature
                of many of these statutes is characterization of the process as civil
                forfeiture under which (by contrast to criminal forfeiture) a
                property owner need not be found guilty of a crime—or even
                charged—to lose permanently their cash, car, home or other




       2
         As noted in footnote 1, supra, Wilson appears to have been correct that his conviction was for possession,
       rather than dealing.

       Court of Appeals of Indiana | Memorandum Decision 82A05-1711-MI-2645 | January 31, 2019           Page 5 of 12
                property. The relative ease of effecting such forfeiture and the
                disposition of the assets have become a matter of public note.


       946 N.E.2d 1139, 1141 (Ind. 2011) (internal citations and quotations omitted).3

                                           I. Timeliness of the Action

[11]   Wilson argues that the State’s complaint for forfeiture was untimely. Both

       parties appear to agree that the timeliness of a forfeiture action is controlled by

       Indiana Code section 34-24-1-3(a). At the time of the instant action, this section

       provided:


                The prosecuting attorney for the county in which the seizure
                occurs may, within ninety (90) days after receiving written notice
                from the owner demanding return of the seized property or
                within one hundred eighty (180) days after the property is seized,
                whichever occurs first, cause an action for reimbursement of law
                enforcement costs and forfeiture to be brought by filing a
                complaint in the circuit or superior court in the jurisdiction where
                the seizure occurred. . . .


       I.C. § 34-24-1-3(a) (2011).4




       3
        Wilson makes no argument that the seizure of his cash was unconstitutionally excessive. Thus, the eventual
       decision of the United States Supreme Court in Timbs v. Indiana, No. 17–1091, which will decide whether the
       excessive fines clause of the Eighth Amendment is applicable to the several states, is not at issue here.
       4
        This section was amended effective July 1, 2018, to shorten the time limits in which the State may file a
       complaint for forfeiture. This section now provides that:
                The prosecuting attorney for the county in which the seizure occurs may, within twenty-
                one (21) days after receiving written notice from the owner demanding return of the seized
                property or within ninety (90) days after the property is seized, whichever occurs first,
                cause an action for forfeiture to be brought by filing a complaint in the circuit or superior
                court in the jurisdiction where the seizure occurred. . . .

       Court of Appeals of Indiana | Memorandum Decision 82A05-1711-MI-2645 | January 31, 2019            Page 6 of 12
[12]   Wilson argues that the State did not timely file its complaint for forfeiture

       because the State failed to properly serve him for eight months. He therefore

       argues that the complaint should have been dismissed. Wilson, however, never

       presented this argument to the trial court. As a general rule, an argument may

       not be advanced for the first time on appeal. Leatherman v. State, 101 N.E.3d

       879, 885 (Ind. Ct. App. 2018). The failure to present an argument below results

       in waiver on appeal. Id. This is so because a trial court cannot be found to have

       erred as to an issue that it never had an opportunity to consider. Id. Thus,

       Wilson’s argument is waived. But even if we were to consider Wilson’s

       timeliness argument, he would not prevail.


[13]   The applicable version of Indiana Code section 34-24-1-3(a) provides that the

       State could file a forfeiture complaint within ninety days after receiving notice

       from the owner demanding return of the seized property, or within 180 days

       after the property was seized, whichever occurs first. Here, there is no

       indication that Wilson filed any demand for the return of his property until after

       the State filed its complaint for forfeiture. And the State filed its complaint for

       forfeiture on July 25, 2016, a mere ten days after the seizure of the money on

       July 15, 2016. Thus, the State’s complaint for forfeiture was timely under the

       controlling statute.




       I.C. §. 34-24-1-3(a) (2018). Neither party argues that this amendment to the statute is retroactive. We
       therefore apply the version of the statute that was in effect at the time of the instant forfeiture action. Even if
       the statute were retroactive, it would have no effect on the resolution of the present case, as we conclude infra
       that the State timely filed its action within ten days after the seizure of the money.

       Court of Appeals of Indiana | Memorandum Decision 82A05-1711-MI-2645 | January 31, 2019               Page 7 of 12
[14]   Wilson’s contention that the complaint was not filed until he had been served is

       unavailing. The failure to effect proper service of process does not mean that a

       complaint has not been filed within the applicable limitations period. An action

       is deemed to be filed when the complaint and summons are filed. See Ray-Hayes

       v. Heinamann, 760 N.E.2d 172, 173 (Ind. 2002) (holding that a statute of

       limitations continues to run until the plaintiff files a complaint, summons, and

       filing fee), aff’d in relevant part on reh’g, 768 N.E.2d 899 (citing Boostrom v. Bach,

       622 N.E.2d 175, 175–76 (Ind. 1993)).


[15]   Thus, a failure to properly effect service of process within the statutory

       limitations period does not mean that a complaint was untimely. Such failure

       does, however, deprive the trial court of jurisdiction over the person who has

       not been properly served. See Norris v. Personal Fin., 957 N.E.2d 1002, 1007 (Ind.

       Ct. App. 2011) (noting that without effective service of process, a trial court

       does not obtain personal jurisdiction over a defendant).

[16]   Here, the State filed its complaint for forfeiture along with the summons ten

       days after the seizure of the cash at issue. See Appellant’s App. pp. 14–16, 159–

       60. This tolled the applicable statute of limitations. See Ray-Hayes, 760 N.E.2d

       at 173. Accordingly, Wilson’s claim that the State’s complaint for forfeiture was

       untimely because he was not served within the applicable statute of limitations

       is unavailing; the complaint was timely because it was filed, along with the

       summons, within the statutory limitations period.




       Court of Appeals of Indiana | Memorandum Decision 82A05-1711-MI-2645 | January 31, 2019   Page 8 of 12
[17]   To the extent that Wilson complains about deficiencies in the State’s service of

       process, such claims are waived unless presented in a responsive pleading or an

       objection filed prior to a responsive pleading. See Ind. Trial Rule 12(H)(1)(b)

       (providing that a defense of insufficiency of process or insufficiency of service of

       process is waived if it is “neither made by motion under this rule nor included

       in a responsive pleading or an amendment thereof permitted by [Trial Rule]

       15(A) to be made as a matter of course.”).5 Wilson presented no claims

       regarding the adequacy of service of process in his responsive pleading. See

       Appellant’s App. pp. 20–27. In fact, he admitted in his responsive pleading that

       he was served on March 1, 2017. See id. at 23. As a result, Wilson does not, and

       could not, argue that the trial court lacked personal jurisdiction over him.

                                       II. Sufficiency of the Evidence

[18]   Wilson also claims that the State failed to present sufficient evidence to support

       the trial court’s forfeiture order. In reviewing the sufficiency of the evidence in a

       civil forfeiture case, as in all civil cases, we consider only the evidence most

       favorable to the judgment and any reasonable inferences that may be drawn




       5
         Indiana Trial Rule 12(H)(1)(a) provides that such defenses are also waived if omitted from a motion “in the
       circumstances described in subdivision (G)” of Rule 12. Trial Rule 12(G) provides:
                A party who makes a motion under this rule may join with it any other motions herein
                provided for and then available to him. If a party makes a motion under this rule but
                omits therefrom any defense or objection then available to him which this rule permits to
                be raised by motion, he shall not thereafter make a motion based on the defense or
                objection so omitted. He may, however, make such motions as are allowed under
                subdivision (H)(2) of this rule.
       There is no indication in the record that Wilson made any motion under Trial Rule 12. Thus, Trial Rule
       12(G) is inapposite.

       Court of Appeals of Indiana | Memorandum Decision 82A05-1711-MI-2645 | January 31, 2019          Page 9 of 12
       therefrom. Gonzalez v. State, 74 N.E.3d 1228, 1230 (Ind. Ct. App. 2017) (citing

       Lipscomb v. State, 857 N.E.2d 424, 427 (Ind. Ct. App. 2006)). On appeal, we

       neither reweigh the evidence nor assess the credibility of the witnesses. Id.

       Instead, we will affirm when there is substantial evidence of probative value to

       support the trial court’s ruling. Id. We will reverse only when we are left with a

       definite and firm conviction that a mistake has been made. Id.


[19]   To obtain the right to dispose of property, use the property, or recover law

       enforcement costs, the State must demonstrate by a preponderance of the

       evidence that the property was subject to seizure. Gonzalez, 74 N.E.3d at 1230

       (citing Ind. Code § 34-24-1-4(a); Serrano, 946 N.E.2d at 1142–43). The State

       must establish a nexus between the property and the commission of an offense.

       Id. “[T]his ‘requires more than an incidental or fortuitous connection between

       the property and the underlying offense.’” Id. at 1230 (quoting Serrano, 946

       N.E.2d at 1143).


[20]   The statute governing the forfeiture of money provides in relevant part:

               (a) The following may be seized:

                                                       ***

                   (2) All money . . .

                        (A) furnished or intended to be furnished by any person in
                        exchange for an act that is in violation of a criminal
                        statute;

                        (B) used to facilitate any violation of a criminal statute; or



       Court of Appeals of Indiana | Memorandum Decision 82A05-1711-MI-2645 | January 31, 2019   Page 10 of 12
                         (C) traceable as proceeds of the violation of a criminal
                         statute.


       Ind. Code § 34-24-1-1.6


[21]   Considering only the evidence and reasonable inferences in favor of the trial

       court’s ruling, we conclude that the State presented evidence sufficient to

       establish by a preponderance of the evidence that the money found on Wilson’s

       person was either furnished by any person in exchange for an act that is in

       violation of a criminal statute, used to facilitate any violation of a criminal

       statute, or traceable as proceeds of the violation of a criminal statute.

       Specifically, two separate individuals told the police that they had purchased

       methamphetamine from Wilson, and the very next day the police found in

       Wilson’s apartment methamphetamine, marijuana, prescription drugs, digital



       6
         The forfeiture statute also provides that money found on or near a person who is committing, attempting to
       commit, or conspiring to commit certain crimes shall be considered as prima facie evidence that the money
       has been used or was to have been used to facilitate the violation of a criminal statute or the proceeds of the
       violation of a criminal statute. I.C. § 34-24-1-1(d). Among the listed crimes that raise this rebuttable
       presumption is dealing in or manufacturing cocaine or a narcotic drug. Id. at § 1(d)(2). Wilson argues that
       this presumption is inapplicable in the present case. Wilson correctly notes that he was not convicted of
       dealing in or manufacturing a narcotic drug but was instead convicted of a Level 6 felony as a lesser-included
       offense of the charged crime of Level 3 dealing in a narcotic drug. Since there is no crime of dealing in a
       narcotic drug as a Level 6 felony, Wilson’s conviction on this count must have been for possession of a
       narcotic drug. See Ind. Code § 35-48-4-6(a) (defining possession of a narcotic drug as a Level 6 felony).
       Possession of a narcotic drug is not one of the crimes listed in Indiana Code section 34-24-1-1(d) as giving
       rise to the rebuttable presumption.
       The State argues that even though Wilson was not convicted of dealing in a narcotic drug, it need not prove
       that Wilson was actually convicted of the crime to raise the rebuttable presumption. To be sure, a property
       owner need not be convicted of a crime, or even charged with a crime, for his or her property to be subject to
       forfeiture. Serrano, 946 N.E.2d at 1141. But this is not the same as saying that a property owner need not be
       convicted of a crime to raise the rebuttable presumption contained in Indiana Code section 34-24-1-1(d). We
       need not decide this question today, however, because even without the statutory presumption, as discussed
       infra, the State presented evidence sufficient to establish a nexus between the money and the commission of a
       criminal offense.

       Court of Appeals of Indiana | Memorandum Decision 82A05-1711-MI-2645 | January 31, 2019           Page 11 of 12
       scales, glass pipes, and two handguns. From this evidence, the trial court, acting

       as the trier of fact, could reasonably conclude that the State had proven by a

       preponderance of the evidence that the $592 in cash found on Wilson’s person

       at the time of his arrest was the proceeds of his sale of illicit drugs. Wilson’s

       argument that the money was earned from his construction job is simply a

       request that we believe his testimony when the trial court clearly did not. This is

       not within our prerogative as an appellate court. Gonzalez, 74 N.E.3d at 1230.


                                                 Conclusion
[22]   Wilson waived his appellate argument regarding the timeliness of the State’s

       forfeiture complaint by failing to first present this issue to the trial court. Waiver

       notwithstanding, the fact that the State did not give Wilson service of process

       until after the statutory limitations period had expired does not mean that the

       complaint itself was untimely. In addition, any complaint regarding the

       adequacy of the service of process was waived for failure to present it in a

       responsive pleading or motion prior to the responsive pleading. Lastly, even

       without the assistance of the statutory rebuttable presumption contained in the

       forfeiture statute, the State presented evidence sufficient to support the trial

       court’s forfeiture order. We therefore affirm the judgment of the trial court.


[23]   Affirmed.


       Bailey, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 82A05-1711-MI-2645 | January 31, 2019   Page 12 of 12
