State v. Eicholz, No. WD 55816.

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: SMART, P.J., HANNA and LAURA DENVIR STITH, JJ
• Citation: 999 S.W.2d 738
• Parties: STATE of Missouri, Appellant, v. Paul E. EICHOLZ, et al., Respondents.
• Decision Date: 25 May 1999
• Docket Number: No. WD 55816.

999 S.W.2d 738

STATE of Missouri, Appellant,
v.
Paul E. EICHOLZ, et al., Respondents.

No. WD 55816.

Missouri Court of Appeals, Western District.

May 25, 1999.

Submitted February 16, 1999.

Decided May 25, 1999.

Tuere L. Sala, Kansas City, Asst. Pros, Atty., Jackson County, for appellant.

J. Michael Murphy, Liberty, for respondent.

Before SMART, P.J., HANNA and LAURA DENVIR STITH, JJ.

SMART, Judge.

The State of Missouri appeals an entry of summary judgment in favor of the estate of Paul Eicholz in a forfeiture action

999 S.W.2d 739

related to $10,672.00 found in close proximity to a controlled substance. The state argues that the trial court erred in granting the estate's motion for summary judgment because the estate failed to establish that it was entitled to judgment as a matter of law

The judgment of the trial court is affirmed.

Factual Background

Shortly after midnight on February 11, 1997, Officer Paul Thurman of the Independence Police Department spotted a truck parked in front of a closed gun shop. As Officer Thurman approached the vehicle, he detected the odor of burning marijuana. He asked the driver, Eicholz, to exit the vehicle so he could investigate further. Eicholz agreed to do so, but then attempted to physically restrain the officer from entering the vehicle. After a short struggle, Eicholz succeeded in closing the vehicle's door, locking the keys inside.

Eicholz was placed under arrest for interference with the lawful duty of a police officer. Officer Thurman ordered a tow for the vehicle. Upon arrival, the tow company unlocked the vehicle's door so that an inventory search could be conducted before the vehicle was towed. Officer Thurman found a black nylon gym bag on the passenger-side floorboard. The bag contained the following items:

1) One clear bag containing 8.2 grams of methamphetamine;

2) One clear bag containing 1.5 grams of methamphetamine;

3) One clear bag containing 23.2 grams of marijuana;

4) Miscellaneous drug paraphernalia, including scales, nine plastic baggies, one syringe and a crack pipe;

5) One 25 caliber Falcon semi-automatic handgun with an empty magazine; and

6) One black bag containing $10,500.00.

During a search incident to his arrest, $172.00 was recovered from Eicholz's left sock.

Eicholz was charged with the class C felony of possession of a controlled substance and the class A misdemeanor of possession of drug paraphernalia with intent to use. On February 14, 1997, the state filed a petition for forfeiture pursuant to the Criminal Activity Forfeiture Act ("CAFA"), § 513.600, et seq., RSMo 1994,¹ against the $10,672.00 and Eicholz's truck.² The petition alleged that the seized property was "used or intended for use in the course of, derived from, or realized through" Eicholz's criminal activity. Alternatively, the petition alleged that the seized property was subject to forfeiture pursuant to § 195.140 because it "was in close proximity to amphetamines."

A Jackson County Sheriff personally served Eicholz with a copy of the petition on March 4, 1997. Eicholz's answer to the petition was due on April 3, 1997. He did not file an answer by that date, nor did he otherwise challenge the seizure. On October 3, 1997, the state filed a motion for an interlocutory order of default, which was granted. Also on October 3, 1997, the court stayed the CAFA forfeiture proceeding, pending the outcome of Eicholz's criminal trial.

Eicholz died approximately a month later, as a result of injuries he received from an explosion at a methamphetamine lab. The court was informed of Eicholz's death on November 10, 1997, and the pending criminal case against Eicholz was subsequently dismissed. Pursuant to a Rule 52.13 motion, Eicholz's estate was substituted for Eicholz in the CAFA forfeiture action on January 8, 1998.

999 S.W.2d 740

On January 21, 1998, the estate filed a motion for summary judgment, arguing that pursuant to § 513.617, the state needed a criminal conviction before the money could be forfeited. The estate argued that because Eicholz was dead, the state could not obtain a conviction, and therefore the money could not be forfeited. In response, the state argued that the money was found in close proximity to drugs and was therefore presumed to be illegal drug proceeds under § 195.140. The state argued that Eicholz had not rebutted that presumption prior to his death. The state also argued that a guilty plea or a conviction was not a condition precedent to the forfeiture of the money and sought an entry of summary judgment in its favor. On March 30, 1998, after hearing arguments, the court entered an order granting the estate's motion for summary judgment.

The state appeals, arguing that the estate failed to establish it was entitled to a judgment as a matter of law. The state argues that a conviction or guilty plea is not a condition precedent to a judgment of forfeiture in a case such as this, where the currency was found in close proximity to a controlled substance and the estate failed to rebut the presumption of forfeitability. Also, the state argues that the court should have issued summary judgment in the state's favor because the currency in question was found in close proximity to controlled substances, an interlocutory order of default had been issued against Eicholz and the estate had never rebutted the presumption of forfeitability.

Standard of Review

Our standard for de novo review of the trial court's entry of summary judgment is set forth in ITT Commercial Fin. v. Mid-Am. Marine, 854 S.W.2d 371, 376 (Mo. banc 1993). We review the record in the light most favorable to the state, the party against whom the summary judgment was entered, and give the state the benefit of all reasonable inferences. Id. at 382. In order to be entitled to summary judgment, the estate must establish: (1) facts negating any one of the state's element facts; (2) that the state would not have been able to produce sufficient evidence allowing the trier of fact to find the existence of any one of the state's elements; or (3) that there is no genuine dispute regarding the existence of facts necessary to support the estate's properly-pleaded affirmative defense. Id. at 381.

Presumption of Forfeitability

There are two statutes to be considered. One is § 195.140, which states in part as follows:

1. All controlled substances, imitation controlled substances or drug paraphernalia for the administration, use or manufacture of controlled substances or imitation controlled substances and which have come into the custody of a peace officer or officer or agent of the department of health as provided by sections 195.010 to 195.320, the lawful possession of which is not established or the title to which cannot be ascertained after a hearing as prescribed in Rule 34 of Rules of Criminal Procedure for the courts of Missouri or some other appropriate

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