Abbott v. State

Citation164 N.E.3d 736
Decision Date15 February 2021
Docket NumberCourt of Appeals Case No. 19A-PL-1635
Parties Terry L. ABBOTT, Appellant-Respondent, v. STATE of Indiana, Appellee-Petitioner.
CourtCourt of Appeals of Indiana

Case Summary

[1] The State filed a civil forfeiture action concerning four firearms and more than $9,000 in cash found at the residence of Terry L. Abbott ("Abbott") during the execution of a search warrant. The bulk of the cash—$6,760—was found on Abbott's person, in the pocket of his pants. Abbott claimed that he lawfully obtained the cash in his pocket and that he possessed the cash on his person because he intended to purchase a motorcycle on the day of the search. Abbott initially hired a lawyer. However, without access to the cash, Abbott could not pay legal fees and the court allowed Abbott's lawyer to withdraw. Abbott then requested the appointment of counsel at public expense. The court denied the request, determining that Abbott was ineligible under the pertinent statutes. Even though there were thousands of dollars in seized funds available to hire a lawyer, Abbott was unrepresented for the remainder of the proceedings.

[2] The State sought summary judgment, designating evidence that Abbott was engaged in drug dealing. Although Abbott disclaimed interest in the firearms and $11 of the cash, Abbott designated evidence showing a lawful source of the cash in his pocket and a lawful intended use for that cash. Despite Abbott's designated evidence regarding the bulk of the res , the court granted summary judgment to the State. Abbott then pursued this appeal pro se. In doing so, Abbott alleged that he was indigent and he unsuccessfully sought a transcript at public expense. On appeal, Abbott argues that the court erred in granting summary judgment. Abbott also asserts that the trial court improperly denied his request for appointed counsel.

[3] Because there are material issues of fact regarding a nexus between the seized cash and criminal activity, we conclude that the trial court erred in granting summary judgment as to the bulk of the cash. Turning to Abbott's request for appointed counsel, we conclude that Abbott failed to show his entitlement to counsel at public expense. However, under the circumstances—where the bulk of the res was removed from Abbott's pocket and he made a plausible claim to that cash—we conclude that Abbott should be permitted to use the res to pay for a lawyer, a transcript, and other expenses for his defense. We ultimately affirm summary judgment as to all property other than $8,923 in cash. We otherwise reverse and remand for further proceedings consistent with this opinion.

Facts and Procedural History

[4] On June 1, 2015, the State filed this in rem action seeking the forfeiture of four firearms and $9,184 in cash found during the execution of a search warrant at Abbott's residence. Although Abbott was initially represented, his counsel moved to withdraw in part because Abbott had failed to pay legal fees.1 The court granted the motion to withdraw in November 2015. The State eventually filed a motion for summary judgment on July 30, 2018.2 Abbott alleged that he was indigent and he requested the appointment of counsel at public expense. The trial court denied Abbott's request, determining that, inter alia , Abbott's "likelihood of prevailing on the merits is slim[.]" Appellant's App. Vol. 2 at 14.

[5] In support of its motion for summary judgment, the State designated evidence that Abbott was suspected of dealing drugs in 2015. The evidence showed that the police conducted two controlled buys, acquiring methamphetamine and narcotics from Abbott. The police then obtained a warrant to search Abbott's residence. During the execution of the warrant, the police found four firearms and a variety of drugs, including methamphetamine, marijuana, and MDMA pills. The police also found $9,184 in cash. Of that cash, $6,760 was found in the pocket of Abbott's pants. More than $2,000 of the cash—of which $250 was documented as "drug buy" money—was found in a safe in Abbott's bedroom. In the basement, $11 of the cash was found in a bag commingled with pills. Abbott was arrested and eventually convicted of several offenses, including Dealing in Methamphetamine and Dealing in a Controlled Substance. A later investigation led to a separate criminal case, the outcome of which is unclear.

[6] Abbott designated evidence in response to the State's motion for summary judgment. Among the designated evidence is an affidavit in which Abbott averred that "[t]he $6,760.00 that was in my pants pocket ... was lawfully obtained. The funds were intended to be used to purchase a motorcycle the day of my arrest" and "complications with the title for the motorcycle coupled with haggling over the sale price postponed the sale. I had simple [sic ] not removed the money from my pocket." Id. at 34. Abbott further averred that he had been employed leading up to his arrest. He designated tax documents from 2015 showing two sources of lawful wages that collectively exceeded $20,000.

[7] After Abbott had filed his written response and designation of evidence, the court held an evidentiary hearing on April 9, 2019, the transcript of which is not included on appeal. On June 25, 2019, the court granted the State's motion for summary judgment. In its order, the trial court made the following remarks:

In his Affidavit, [Abbott] simply asserted that the money ($6,760.00) he had in his pants pocket when he was arrested was set aside for the purchase of a motorcycle. He did not, however, set out contrary facts or evidence that create a genuine issue as to where the money in [his] pants pocket came from so as to contradict the State's overwhelming designated evidence that the currency was used in the course of, intended for use in the course of, derived from or realized through [Abbott's] criminal conduct. Even though [Abbott] produced copies of W-2 forms for 2015 showing that he earned money from work at Forest River and Gulf Stream, he did not in any way connect those earnings to the cash found on his person on the date of his arrest. In other words, [Abbott] did not present evidence sufficient to create a genuine issue of fact as to the source of the money found on his person when he was arrested.

Id. at 26-27 (emphasis added).

[8] Abbott appealed. On appeal, Abbott asserted that he was indigent and filed a motion seeking to obtain a transcript at public expense. This Court denied Abbott's motion but allowed him to proceed on appeal without a transcript.3

Discussion and Decision

Summary Judgment

Standard of Review

[9] We review de novo a ruling on summary judgment. Kenworth of Indianapolis, Inc. v. Seventy-Seven Ltd. , 134 N.E.3d 370, 376 (Ind. 2019). Summary judgment is proper "if the designated evidentiary matter 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." Ind. Trial Rule 56(C). "A fact is ‘material’ if its resolution would affect the outcome of the case, and an issue is ‘genuine’ if a trier of fact is required to resolve the parties’ differing accounts of the truth, or if the undisputed material facts support conflicting reasonable inferences." Hughley v. State , 15 N.E.3d 1000, 1003 (Ind. 2014) (quoting Williams v. Tharp , 914 N.E.2d 756, 761 (Ind. 2009) ).

[10] The initial burden is on the movant to demonstrate the absence of any genuine issue of material fact, "at which point the burden shifts to the non-movant to ‘come forward with contrary evidence’ showing an issue for the trier of fact." Id. (quoting Williams , 914 N.E.2d at 762 ). Under this standard, summary judgment may be precluded "by as little as a non-movant's ‘mere designation of a self-serving affidavit.’ " Id. (quoting Deuitch v. Fleming , 746 N.E.2d 993, 1000 (Ind. Ct. App. 2001), trans. denied ). Indeed, by adopting this standard, "Indiana consciously errs on the side of letting marginal cases proceed to trial on the merits, rather than risk short-circuiting meritorious claims." Id. at 1004.

[11] In conducting appellate review, we view the designated evidence in a light most favorable to the non-movant. Murray v. Indianapolis Pub. Schs. , 128 N.E.3d 450, 452 (Ind. 2019). Moreover, although the non-movant "has the burden on appeal of persuading us that the grant of summary judgment was erroneous, we carefully assess the trial court's decision to ensure that he was not improperly denied his day in court." Hughley , 15 N.E.3d at 1003 (quoting McSwane v. Bloomington Hosp. & Healthcare Sys. , 916 N.E.2d 906, 909-10 (Ind. 2009) ).

Merits

[12] "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 1139, 1140 (Ind. 2011). In seeking summary judgment, the State sought forfeiture under Indiana Code Chapter 34-24-2. See Br. of Appellee at 18 (clarifying the statutory basis for the State's motion for summary judgment). To prevail under that Chapter, the State had the burden of showing that the seized property was "used in the course of, intended for use in the course of, derived from, or realized through" criminal conduct constituting Corrupt Business Influence. I.C. § 34-24-2-2(d).

[13] Notably, Abbott conceded below that "he is not seeking entitlement or return of any of the firearms" seized from his residence. Appellant's App. Vol. 2 at 56. We therefore affirm summary judgment as to those unchallenged items and focus on the $9,184 in cash. As to that res , Abbott disclaimed interest in the $11 found commingled with pills and he has not presented a cogent argument concerning the $250 of documented "drug buy" money. Thus, we decline to reverse summary judgment as to $261 and hereafter regard the res as $8,923.4

[14] In seeking summary judgment, the...

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3 cases
  • Abbott v. State
    • United States
    • Supreme Court of Indiana
    • March 29, 2022
    ...Abbott's designations sufficiently created a genuine issue of material fact under our summary judgment standard.1 Abbott v. State , 164 N.E.3d 736, 742–43 (Ind. Ct. App. 2021), vacated. The Court of Appeals also sua sponte found as a matter of equity that trial courts may allow forfeiture d......
  • Abbott v. State
    • United States
    • Supreme Court of Indiana
    • March 29, 2022
    ...action "to retain counsel, purchase a transcript if needed, and pay for other reasonable expenses associated with preparing a defense." Id. at 747-48. In reaching conclusion, the Court of Appeals relied on language in the Racketeering Forfeiture Statute that property seized under the statut......
  • Clark Cnty. REMC v. Reis
    • United States
    • Court of Appeals of Indiana
    • March 30, 2021
    ...the "demanding analysis" implicated when an instrument is silent as to a critical point. Abbott v. State , No. 19A-PL-1635, 164 N.E.3d 736, 751 (Ind. Ct. App. Feb. 21, 2021) (Vaidik, J. dissenting) (asserting that "equity cannot be used by the judiciary to bypass inconvenient" law). In my o......
1 books & journal articles
  • SUPPLEMENTING SUPPLEMENTAL BRIEFING.
    • United States
    • Journal of Appellate Practice and Process Vol. 22 No. 2, June 2022
    • June 22, 2022
    ...relaxed state one). (312.) A recent case from the Indiana Court of Appeals shows a de-facto application of this idea. Abbott v. State, 164 N.E.3d 736 (Ind. Ct. App. 2021). The opinion was subsequently transferred and vacated, Abbott v. State, 171 N.E.3d 616 (Ind. 2021), but the underlying p......

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