State v. One 2013, Toyota Corolla/S/Le Four-Door

• Decision Date: 23 September 2015
• Docket Number: Appeal No. 2014AP2226
• Parties: STATE OF WISCONSIN, PLAINTIFF-RESPONDENT, v. ONE 2013, TOYOTA COROLLA/S/LE FOUR-DOOR, LICENSE #437MXR, VIN #2T1BU4EEXDC038839, ITS TOOLS AND APPURTENANCES, DEFENDANT, STEVEN T. BAUMGARD AND GLADYS A. VOGEL, DEFENDANTS-APPELLANTS.
• Court: Wisconsin Court of Appeals

STATE OF WISCONSIN, PLAINTIFF-RESPONDENT, v. ONE 2013, TOYOTA COROLLA/S/LE FOUR-DOOR, LICENSE #437MXR,VIN #2T1BU4EEXDC038839, ITS TOOLS AND APPURTENANCES, DEFENDANT,STEVEN T. BAUMGARD AND GLADYS A. VOGEL, DEFENDANTS-APPELLANTS.

Appeal No. 2014AP2226

STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT II

September 23, 2015

NOTICE

This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See WIS. STAT. § 808.10 and RULE 809.62.

Cir. Ct. No. 2013CV657

APPEAL from an order of the circuit court for Walworth County: KRISTINE E. DRETTWAN, Judge. Affirmed in part; reversed in part and cause remanded with directions.

Before Neubauer, C.J., Reilly, P.J., and Gundrum, J. ¶1 GUNDRUM, J. Steven T. Baumgard and Gladys A. Vogel appeal from the circuit court's order of forfeiture of the above-captioned 2013 Toyota Corolla. Defendants argue forfeiture of the Toyota pursuant to WIS. STAT. § 961.55 (2013-14)¹ is improper because (1) Vogel is an innocent owner of it under the statute and (2) forfeiture violates the Excessive Fines Clause of the Eighth Amendment to the United States Constitution. We conclude the circuit court correctly determined the innocent owner exception to forfeiture does not apply to Vogel. We further conclude forfeiture of the Toyota and Baumgard's financial interest in it is constitutional; however, forfeiture of Vogel's full financial interest in the vehicle is unconstitutional under the Excessive Fines Clause. Accordingly, we affirm in part, reverse in part and remand for further proceedings consistent with this opinion.

Background

¶2 Baumgard was arrested in June 2013 on three counts of selling marijuana, utilizing a vehicle to assist with the sales. The allegations were that he sold 3.43 grams for $60 on April 24, 2013, 3.46 grams for $60 on May 1, 2013, and 3.48 grams for $55 on May 8, 2013, for a total of $175. On June 14, 2013, the Walworth county sheriff's office seized the Toyota, which Baumgard used in conjunction with the latter two sales.² Criminal charges were filed against Baumgard in September 2013; all charges were dropped in June 2014 pursuant to a deferred prosecution agreement.

¶3 On July 2, 2014, the State commenced this action for forfeiture of the Toyota. Defendants responded that the Toyota should not be forfeited because Vogel is an innocent owner of it and forfeiture would violate the constitutional prohibition against excessive fines. The circuit court held an evidentiary hearing, and, at the conclusion of the hearing, determined Baumgard is the actual owner of the Toyota, while Vogel is only a nominal owner, and therefore the innocent owner defense did not apply. The court then concluded that forfeiture of the Toyota would not constitute an excessive fine under the Eighth Amendment. The court ordered the Toyota forfeited, but stayed the order pending this appeal by Baumgard and Vogel. Additional facts are set forth as necessary.

Discussion

¶4 This appeal raises two questions—whether the statutory innocent owner exception to forfeiture applies to Vogel so as to preclude forfeiture of the Toyota and whether forfeiture of the Toyota, and Baumgard's and Vogel's individual financial interests in it, violates the Excessive Fines Clause of the Eighth Amendment.

Ownership under WIS. STAT. § 961.55 and the "innocent owner" exception

¶5 Pursuant to WIS. STAT. § 961.55(1)(d), a vehicle is subject to forfeiture if it has been used to transport illegal drugs for the purpose of selling the drugs. Section 961.55(1)(d)2. provides for an "innocent owner" exception, stating that "[n]o vehicle is subject to forfeiture under this section by reason of any act or omission established by the owner thereof to have been committed or omittedwithout the owner's knowledge or consent." To be entitled to the protection of the "innocent owner" exception, a defendant must prove he or she is the actual owner of the vehicle, not just a nominal owner. See State v. Kirch, 222 Wis. 2d 598, 603-07, 587 N.W.2d 919 (Ct. App. 1998); see also WIS. STAT. § 961.56(1) ("The burden of proof of any exemption or exception [in this chapter] is upon the person claiming it."). Because the relevant facts in this case are undisputed, we review de novo the application of those facts to the statute and the circuit court's determination that Vogel is not "the owner" of the Toyota for purposes of § 961.55(1)(d)2. See Showers Appraisals, LLC v. Musson Bros., 2013 WI 79, ¶21, 350 Wis. 2d 509, 835 N.W.2d 226.

¶6 In Kirch, we identified "possession, title, control and financial stake" as relevant factors a court should consider in determining whether a defendant is "the owner" of a vehicle for purposes of the innocent owner exception.³ See Kirch, 222 Wis. 2d at 605-07. Considering these factors and the undisputed evidence presented at the forfeiture hearing, we agree with the circuit court that Vogel is not "the owner" of the Toyota, and therefore the innocent owner exception does not apply in this case.

¶7 The following are the relevant, undisputed facts presented at the forfeiture hearing through documents and the testimony of Vogel and a sheriff's deputy who engaged with Baumgard and Vogel regarding Baumgard's use of the Toyota for selling marijuana.

¶8 The deputy testified that he spoke with Baumgard on the day the Toyota was seized, and Baumgard told the deputy he owned the Toyota; he had exclusive use of it, and Vogel did not drive it; he paid for the insurance, gas and maintenance for the vehicle; and Vogel purchased it but he was paying her back. The deputy further testified that when the Toyota was seized, Baumgard took personal items out of it; when he spoke with Vogel over the phone days after the seizure, she did not ask for the return of any personal items from the vehicle; and a record search indicated the Toyota was titled in both Baumgard's and Vogel's names. On cross-examination, the deputy confirmed that Baumgard never stated he was the sole owner of the Toyota.

¶9 Vogel testified she is an owner of the Toyota; paid $20,000 toward the purchase of it in April 2013 so Baumgard could go to work and school but Baumgard was supposed to pay her back; Baumgard had made two payments totaling $550 toward paying her back; she and Baumgard were both on the title when the Toyota was purchased less than two months prior to the seizure,⁴ but itwas Baumgard's address on the title, not hers; and she has a different vehicle of her own and did not have to purchase another as a result of the seizure. She further testified and produced documents showing her payment of the $20,000 for the Toyota and a $2500 credit received on the purchase price due to Baumgard trading in a prior vehicle he owned. She also testified she had no knowledge Baumgard was engaging in any criminal activity with the Toyota and she never consented to his use of it for such activity.

¶10 We consider the Kirch factors. Based on this record, it is clear Baumgard had nearly complete possession and control of the Toyota. He alone used it; Vogel did not. He paid for the insurance, gas and maintenance for the vehicle. When the Toyota was seized, Baumgard took personal items out of it, and the testimony suggests Vogel had no such items in the Toyota. Further, Baumgard traded in his prior vehicle for the Toyota, and Vogel had a different vehicle of her own and did not have to purchase another as a result of the seizure of the Toyota.

¶11 As to title, it is undisputed that when the Toyota was purchased and when it was seized two months later following Baumgard's use of it in multiple drug sales, it was titled in both Baumgard's and Vogel's names, but that the address on the title was Baumgard's not Vogel's. With regard to financial stake, $2500 of the purchase of the Toyota was funded by Baumgard's trade-in of his prior vehicle, while the remaining $20,000 was funded by Vogel with the agreement that Baumgard would pay her back. At the time of the forfeiture hearing, Baumgard had paid $550 to Vogel toward that debt.

¶12 We also note that ultimately Baumgard is the one who will suffer most from the forfeiture of the Toyota in that not only will he lose out on the benefit of the money equivalent ($2500 trade-in) he put into the purchase and the $550 he has paid to Vogel, but he will no longer have the Toyota to utilize for his daily transportation needs, whereas Vogel has always had another vehicle of her own. See United States v. One 1981 Datsun 280ZX, 563 F. Supp. 470, 475 (E.D. Pa. 1983) (stating that looking to "who would actually suffer from the loss of the vehicle ... provides an excellent focus for determining ownership in the forfeiture context"); United States v. One 1971 Porsche Coupe, 364 F. Supp. 745, 748 (E.D. Pa. 1973) (even though father challenging vehicle forfeiture had purchased vehicle and retained title to it, but had given it to his son, "it is the claimant's son who will suffer the loss occasioned by forfeiture, and he was by no means innocent with respect to the prohibited activity").

¶13 While Vogel still has the largest financial interest in the Toyota, we have no problem on this record agreeing with the circuit court that Baumgard was the actual owner of the vehicle, and Vogel was merely a nominal owner of it. Thus Vogel has failed to establish she is "the owner" of the vehicle for purposes of the statutory "innocent owner" exception. We must now determine whether forfeiture of the Toyota, while statutorily authorized, constitutes an unconstitutionally excessive fine when applied to the facts of this case.

Constitutionality of Forfeiture

¶14 "[A] punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant's offense." United States v.Bajakajian, 524 U.S. 321, 334 (1998). Defendants assert that forfeiture of the Toyota violates...