STATE EX REL. GIBSON v. 1997 DODGE 350
| Decision Date | 21 September 2001 |
| Docket Number | No. 95,708.,95,708. |
| Citation | 2001 OK CIV APP 130,35 P.3d 1009 |
| Parties | The STATE of Oklahoma, ex rel. Mark L. GIBSON, District Attorney, Plaintiff/Appellee, v. 1997 DODGE 350 ONE-TON DUALLY PICKUP, White in Color, Bearing Arizona License Number EW5031, Vin# 3B7MC33D9VM577896; An Enclosed Bumper-Pull Car Trailer, White in Color; A Standing Commercial Red-Colored Toolbox in a Purple-Colored Container; And a Chevrolet Monte Carlo Nascar Racing Car, White in Color With # 22 Printed on the Sides and Roof, Defendants, Donald E. Holcomb, Jr., Appellant. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
Mark L. Gibson, District Attorney, R. Brian Surber, Assistant District Attorney, Newkirk, Oklahoma, for Plaintiff/Appellee.
Thomas L. Wright, El Paso, TX, for Appellant.
Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 3. BUETTNER, Presiding Judge:
¶ 1 Donald E. Holcomb, Jr., (Holcomb) appeals from the trial court's order finding that Holcomb was not an innocent owner of the property in question and ordering the property forfeited to Plaintiff/Appellee The State of Oklahoma, ex rel. Mark L. Gibson, District Attorney (State). The forfeiture action was based on the discovery of marijuana in a trailer being pulled by a pickup owned by Holcomb, but being driven by someone else. Because we find no error in the order of forfeiture, we affirm. ¶ 2 On May 12, 2000, officers stopped a 1997 Dodge 350 pickup on I-35 in Kay County. The pickup was pulling a trailer containing a NASCAR race car and a large tool chest. The driver of the pickup was Joseph Horvath. Horvath consented to a search of the pickup and trailer which revealed 760 pounds of marijuana concealed in the trailer. The Notice of Seizure and Forfeiture was filed May 17, 2000. The Notice alleged that these vehicles had been:
used unlawfully to facilitate the transportation of a controlled dangerous substance for the purpose of distribution of a controlled dangerous substance as defined in 63 O.S. § 2-503, and in which vehicles said controlled dangerous substance was unlawfully kept, deposited, or concealed, and/or which vehicles were used to transport said controlled dangerous substance as listed in 63 O.S. § 2-204, to wit: Marijuana, and which toolbox was used as equipment to transport a controlled dangerous substance for the purpose of distribution, importation and/or exportation and which trailer was used as a container for a controlled dangerous substance and is therefore forfeitable as set forth in 63 O.S. § 2-503.
¶ 3 Holcomb filed his Answer and Claim to the property June 7, 2000. Holcomb asserted that he is the owner of Holbert Auto Racing, a NASCAR racing company in Mesa, Arizona. Holcomb claimed to be the owner of all the property seized. Holcomb asserted that the race car had been damaged in a wreck in a race in California and was being transported to North Carolina for repairs. Holcomb further asserted that he would normally have made the trip but was unable to because his daughter was hospitalized in Arizona at the time. Holcomb alleged that he had directed Horvath, his employee, to take the car to North Carolina on I-40 and that Horvath did not have permission to leave that route and be on I-35 at the time he was stopped. Holcomb also asserted that Horvath did not have permission to transport controlled dangerous substances. Holcomb attached the notarized statement of Horvath that Holcomb "had no involvement or responsibility for the alleged trafficking of drugs for which I am currently being charged in Kay County, ..."
¶ 4 Trial was held November 9, 2000. The parties stipulated that the allegations in the notice of forfeiture were true and that the items were forfeitable. Trial was therefore limited to the issue of Holcomb's innocent owner defense. The trial court noted case law in Oklahoma that innocent ownership is a defense and once the issue of forfeitability has been established, the burden shifts to the party claiming to be an innocent owner to prove such status. Holcomb did not object to this statement by the trial court.
¶ 5 Holcomb testified that he owns Holbert's Hawg Kingdom and Auto Racing in Mesa, Arizona that is involved in motorcycle and race car sales, motorcycle parts and repairs, as well as auto racing. Holcomb testified that he owns five race cars in addition to the one seized in the instant case. Holcomb explained that the car seized in the instant case is a Winston Cup car and that his team sponsor paid $34,000 for the car. Holcomb testified that in April 2000 the car had been in two races and that at the race in Fontana, California, the car had a tire blowout and hit the barrier wall. Holcomb decided to send the car back to Denver, North Carolina to have Tim Suggs at Body Dynamics repair the damaged bodywork on the car. Holcomb explained that the body repair shops in North Carolina are able to do bodywork repair in such a way that the car gains speed because of its contours. Holcomb testified that he took the car to his shop in Mesa, Arizona for a week. He further testified that he planned to deliver the car to North Carolina himself until his 15 year old daughter was hospitalized for seizures.
¶ 6 Holcomb explained that he then hired Horvath to deliver the car to North Carolina. Holcomb testified that Horvath had been his employee a year and a half before, but by May 2000 he was simply a "subcontract driver" for when Holcomb "needed somebody to fill in when I couldn't go on the road myself." Holcomb testified that he discussed the route with Horvath and that Horvath was supposed to go north in Arizona to Flagstaff and then take I-40 all the way to North Carolina. Holcomb stated that Horvath did not have his permission to have the car on I-35 in Kay County.
¶ 7 Holcomb also testified that he helped load the car into the trailer in Mesa and that there was no marijuana in the trailer when he loaded it. Holcomb further explained that he did not know where the marijuana came from or how it got into the trailer and he testified that he did not know that Horvath was going to use the trailer to transport marijuana. Holcomb testified that he did not give Horvath permission to transport marijuana in the trailer. Finally, Holcomb stated that Horvath had been indicted for possessing the marijuana while Holcomb had not been indicted.
¶ 8 On cross-examination, Holcomb explained that he hired Horvath to deliver the car on a Monday, Horvath left Arizona two days later on Wednesday, and was stopped in Kay County two days after that on Friday May 12, 2000. Holcomb explained that it takes 16 hours to drive from Mesa to Oklahoma City. Holcomb acknowledged that a year or two before the instant incident, Horvath had lived for six months in a different but similar race car trailer behind Holcomb's business. Holcomb also agreed that he had co-signed on Horvath's bail to get out of jail following the instant arrest.
¶ 9 The State then questioned Holcomb about a prior conviction, which he admitted. Holcomb objected, stating that a nine year old conviction was not relevant to the proceedings and that evidence of other crimes is not admissible to prove acts in conformity therewith. The trial court admitted the evidence for impeachment purposes. Holcomb then indicated that he had been convicted of distribution of marijuana, but added "I think it said heroin and cocaine on the deal, too." Holcomb then objected to any further questions on that issue. The trial court asked Holcomb when and where he was convicted and Holcomb responded that he was convicted in federal court in Arizona in 1987. The trial court then stated "I believe that's all we need to know about it." The State then made an offer of proof that the details of the prior conviction were relevant because of similarities to the instant case including the manner and method of operation, the substances involved, and the use of the racing business to facilitate the crime. The trial court then allowed the State to question Holcomb on the details of his prior conviction.
¶ 10 Holcomb explained that he worked on cars for people involved in a drug conspiracy and that he was "a small player in the deal." Holcomb testified that he pleaded guilty to transportation of 100 pounds of marijuana. Holcomb added that he was a cocaine addict at the time, but that he had not used cocaine since 1990. Holcomb acknowledged that at the time of his arrest he was employed by his father at Holcomb Auto Racing and that some of that business's assets were seized when he was arrested but that they were returned two days later. Holcomb denied that he had concealed marijuana in race car tires as part of the 1987 conspiracy. Holcomb admitted that a dually pickup was seized in his prior arrest, but he asserted that it was returned to him two days later. Holcomb denied having any knowledge of how the larger conspiracy operated and he denied ever using race cars to transport drugs.
¶ 11 Holcomb testified that he first met Horvath in 1996 or 1997. He explained that Horvath had made cross-country trips for him about 15 times to deliver cars to races, pickup cars or deliver parts. Holcomb indicated that when the race car had been damaged in an earlier wreck in Phoenix, he had hired Horvath to drive it to North Carolina for repairs then. Holcomb explained that he had only seen Horvath one time since Horvath's arrest in Kay County. On that occasion, Horvath came into Holcomb's business "to apologize for what he had done." Holcomb explained that he co-signed on Horvath's bail because Horvath had been in jail a couple of weeks and Holcomb did not believe he was a flight risk.
¶ 12 Don Robl testified that he works with Holcomb in his pit crew and is in charge of the tires on Holcomb's race cars. Robl testified that he is with Holcomb and his family almost every weekend at races and that Holcomb is not a drug dealer. Robert Fletcher testified that he is a business owner in Phoenix. Fletcher testified...
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