State v. One 1990 Chevrolet Pickup, VIN 1GCDK14K8LZ185153

• Decision Date: 27 October 1994
• Docket Number: No. 940066,940066
• Citation: 523 N.W.2d 389
• Parties: STATE of North Dakota, Plaintiff and Appellant, v. ONE 1990 CHEVROLET PICKUP, VIN 1GCDK14K8LZ185153, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 389

523 N.W.2d 389

STATE of North Dakota, Plaintiff and Appellant, v. ONE 1990 CHEVROLET PICKUP, VIN 1GCDK14K8LZ185153, Defendant

and Appellee.

Civ. No. 940066.

Supreme Court of North Dakota.

Oct. 27, 1994.

Sidney J. Hertz Fiergola (argued), Sp. Asst. Atty. Gen., Maple Grove, for plaintiff and appellant.

Ella Van Berkom Law Firm, Minot, for defendant and appellee; argued by Ella Van Berkom.

MESCHKE, Justice.

The State of North Dakota appealed from a judgment returning one 1990 black Chevrolet pickup to James Horsfall, holding it was not forfeitable because he had not been convicted of a felony. We reverse and remand for the trial court to weigh the evidence correctly.

Horsfall drove his pickup to a friend's home in Minot, located across the street from a house being remodeled. Horsfall and four companions went inside the unoccupied house across the street and removed some stereo equipment. The stereo items were placed in Horsfall's pickup with his assistance, and he took the items to his apartment. The next morning, after learning that the police were investigating, Horsfall delivered the stolen items to the police station and gave the police a full statement.

The State seized Horsfall's pickup and sued to forfeit it, claiming that under NDCC 29-31.1-01(1) ¹ the pickup was used either to facilitate the commission of a crime or to transport property in a felony. Horsfall was charged with felony burglary, but he later pled guilty to misdemeanor theft.

After trial of the forfeiture case without a jury, the trial court interpreted the forfeiture statute under the general rule that "[t]he specific controls over the general" and, construing subsections (b) and (e) of NDCC 29-31.1-01(1), ruled that "[t]he State cannot interchangeably use the terminology 'vehicle' with that of 'property,' " so that a vehicle could not be forfeited for facilitating a misdemeanor, but only for use in a felony. The court reasoned that "[h]ad this case progressed as a felony and been resolved as a felony, there is no question the vehicle in this case would have been forfeitable property." The court concluded that Horsfall's pickup must be returned to him.

The State argues on appeal that the trial court erred in denying forfeiture because there was sufficient evidence to forfeit the pickup on either ground, use to facilitate misdemeanor theft or to transport property in felony burglary. Specifically, the State argues that the trial court misconstrued the forfeiture law, and that the pickup could be forfeited without a criminal conviction.

I

The State argues that Horsfall's pickup may be forfeited either under subsection (b) as property "used to facilitate the commission of a criminal offense," or under subsection (e) as a vehicle "used in the commission of a felony" or "in the transportation of property that is the subject matter of a felony." NDCC 29-31.1-01(1). We conclude that the trial court correctly rejected the general category and applied the specific category for forfeiture of a vehicle.

The State would read NDCC 29-31.1-01(1)(b) broadly to allow forfeiture of any property used to aid commission of any crime, whether the property was real or personal, and whether the crime was a misdemeanor or a felony. In effect, the State says that subsection (e), allowing forfeiture of a vehicle only for use in a felony, is surplusage. That seems an odd result, because then a forfeiture would seldom be sought for the felony grade of any offense, but would regularly be sought for a lesser related misdemeanor. ²

"The interpretation of a statute is a question of law that is fully reviewable on appeal." Matter of Contempt of Grajedas, 515 N.W.2d 444, 451 (N.D.1994). We begin with the statutory language, and give those words "their plain, ordinary, and commonly understood meaning." Stewart v. Ryan, 520 N.W.2d 39, 45 (N.D.1994). Yet, when a statute is ambiguous, as here, NDCC 1-02-39 tells us to look beyond the express language to the purpose of the statute, to the circumstances of its enactment, and to its legislative history.

Subsection (e) on forfeiting a vehicle used in a felony dates from 1941, when NDCC ch. 29-31 was first enacted. 1941 N.D.Laws, ch. 144, Sec. 1. Subsection (b) on forfeiting property used to facilitate any criminal offense was added fifty years later in 1991, when former ch. 29-31 was repealed and new ch. 29-31.1 replaced it. 1991 N.D.Laws, ch. 346. The legislative history is unhelpful on how (b) and (e) are to be construed in relation to each other.

Unless the statutory context otherwise requires, "property" generally means both real and personal property. NDCC 1-01-49(7). Therefore, ordinarily, the property designated in subsection (b) would include both personal and real property, despite Horsfall's attempt to imply that (b) only covers real property because its second sentence references a "residence or other real estate." But this case does not call for decision on the full scope of property forfeitable under subsection (b). Rather, the question here is whether the general category of personal property in subsection (b) overlaps the specific category of vehicles stated in subsection (e).

The entire statute is intended to be effective. NDCC 1-02-38(2). When several sections or subsections relate to the same subject, we should give meaningful effect to each without making one or the other useless. Hospital Services, Inc. v. Brackey, 283 N.W.2d 174, 177 (N.D.1979). Moreover, because NDCC 1-02-38(3) instructs us that a just and reasonable result is intended, we try to avoid an absurd or unjust result.

Subsection (b), property used to facilitate a crime, and subsection (e), a vehicle used in a felony, must be construed together to give meaning to both. A general provision and a special provision in the same statute "must be construed, if possible, so that effect may be given to both provisions." NDCC 1-02-07. If we assign the broad meaning urged by the State to "[p]roperty ... used ... to facilitate the commission of a criminal offense," so as to include a vehicle among other personal property used to aid a crime of any kind, a misdemeanor or a felony, then subsection (e) becomes redundant and ineffective. See State v. Hogie, 424 N.W.2d 630, 633-35 (N.D.1988) (theft of auto chargeable only as class C felony under specific auto-theft statute, not as a class B felony under general theft statute for property exceeding ten thousand dollars in value). See also State v. Ronngren, 356 N.W.2d 903, 905 (N.D.1984) ("Forfeitures are not favored."). We conclude that the general ground for forfeiting property used to facilitate a crime does not apply to a vehicle; a vehicle can be forfeited only for the specified reason of use in a felony.

We hold that the trial court correctly interpreted the statute in holding that the specific subsection controls forfeiture of a vehicle.

II

The State submits that, under NDCC 29-31.1-04, conviction of a crime is not necessary for forfeiture of property used in that crime, and that the trial court erred in holding that, because there was no felony conviction, forfeiture of the pickup was precluded. We agree.

The law directs that "[f]orfeiture is a civil proceeding not dependent upon a prosecution for, or conviction of, a criminal offense and forfeiture proceedings are separate and distinct from any related criminal action." NDCC 29-31.1-04(1). This is a logical consequence of the differences in the burdens of proof for conviction of a crime and for forfeiture of property connected with that crime. The burden of proof for a crime is beyond a reasonable doubt. NDCC 12.1-01-03(1). The burden of proof for forfeiture of property connected to a crime is a preponderance of the evidence. NDCC 19-03.1-36.2. Therefore, neither a criminal charge nor a criminal conviction of a felony is a prerequisite to civil forfeiture of the vehicle used in that felony.

The trial court did not heed the direction of NDCC 29-31.1-04(1) in reasoning that the pickup would be forfeitable only if Horsfall's criminal "case [had been] progressed as a felony and [had] been resolved as a felony." It was clear error for the trial court to deny forfeiture because Horsfall had not been convicted of a felony.

III

The fact that Horsfall was convicted of a misdemeanor, not a felony, is not controlling. However, the reduced grade of the underlying offense can be evidence bearing on the factual findings to be made for the forfeiture. We realize that this may have been the trial court's intention in its first decision, but if so, that reason was not so stated for its decision. The trial court remains free to consider all the evidence on remand. Moreover, the court's factual finding on probable cause for the seizure does not dictate the dispositional finding, but it too becomes part of all the evidence to be assessed for the concluding and dispositional stage of the forfeiture. We explain here the stages of decision to be made on remand.

"Forfeiture proceedings ... must be conducted in accordance with the procedures established for the forfeiture of property in sections 19-03.1-36.1 through 19-03.1-36.7." NDCC 29-31.1-04(2). ³ Sections 19-03.1-36.1 through -36.7 are part of the Uniform Controlled Substances Act applicable to forfeitures and, by reference, they control forfeitures for other criminal conduct as well. Section 19-03.1-36.2 says: "Forfeiture proceedings are civil actions against the property to be forfeited and the standard of proof is a preponderance of the evidence."

In a contested forfeiture, "the state shall establish probable cause for instituting the forfeiture action following which any owner or person with a legal interest in the property to be forfeited who has filed an answer to the complaint has the burden of proving that the property to be forfeited is not subject to forfeiture under this chapter." NDCC 19-03.1-36.6 (part). See State v. Ronngren, 356 N.W.2d 903, 906 (N.D.1984) ("after the...