Willis v. State

• Decision Date: 21 April 2004
• Docket Number: No. 30A05-0307-CR-348.,30A05-0307-CR-348.
• Citation: 806 N.E.2d 817
• Parties: Joshua A. WILLIS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

806 N.E.2d 817

Joshua A. WILLIS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 30A05-0307-CR-348.

Court of Appeals of Indiana.

April 21, 2004.

Stephen Gerald Gray, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Joby Jerrells, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BROOK, Senior Judge.

Case Summary

Appellant-defendant Joshua A. Willis appeals his conviction for operating a vehicle while intoxicated, a Class D felony.¹ We affirm.

Issues

Willis raises two issues on appeal, which we restate as follows:

I. Whether the trial court properly denied Willis' motion to dismiss, and

II. Whether there was sufficient evidence to sustain Willis' conviction.

Facts and Procedural History

On May 20, 2003, Willis and the State submitted the following stipulation of facts to the trial court:

On January 12, 2001, [Willis] was operating a vehicle in Hancock County. Greenfield police responded to the 300 Block of West North Street and observed Willis' vehicle parked partially on the sidewalk. All events occurred [sic] in the State of Indiana.

Officers observed [Willis] to have slurred speech, glassy eyes, poor manual dexterity, and poor balance. Willis failed [five] field sobriety tests; one legged stand, walk and turn, gaze nystagmus, finger to nose and backward count. There was an odor of burnt marijuana on his person.

Prior to transporting for a chemical test, a pat down search was performed. A plastic bag was slightly protruding from the top of [Willis'] waistband. The officer asked what the bag was and [Willis] responded, "nothing." At this time the officer pulled the bag from his pants and found $1,300.00 cash. No drugs or paraphenalia [sic] were found on Willis or in his vehicle.

Willis was transported to Hancock Memorial Hospital and tested for substances. Willis tested positive for marijuana at 32 ng/ml, but negative for alcohol. A triage drug screen showed a positive test for Benzodiazepine but a subsequent drug confirming study showed a negative test for Benzodiazepine, but a positive test for cannabinoid.

[Willis] has a prior conviction for operating while intoxicated in Hancock County on May 3, 1998 under cause no. 30D02-9806-CM-546.

[Willis] was observed by off duty officer Toby Holliday trying to back [his] vehicle off the sidewalk and back onto the street.

Appellant's App. at 5 (emphasis deleted).

On March 27, 2001, before the parties stipulated to the facts above, the State filed a complaint for forfeiture, alleging that the $1,300.00 found on Willis' person and seized by police at the time of his arrest constituted proceeds from the sale of controlled substances. On April 10, 2003, the parties proceeded to trial on the State's forfeiture complaint. Evidence was presented, and the trial court took the matter under advisement.

On May 14, 2003, Willis filed a motion to dismiss the criminal charge in the present cause, arguing that the earlier forfeiture proceeding barred the instant criminal proceeding due to double jeopardy principles. The trial court denied Willis' motion to dismiss on May 15, 2003.

On June 5, 2003, the trial court found Willis guilty of operating a vehicle while intoxicated, a Class D felony. This appeal ensued.

Discussion and Decision

I. Motion to Dismiss/Double Jeopardy

Willis argues that the trial court erroneously denied his motion to dismiss. Specifically, Willis asserts that when the forfeiture complaint went to trial, a risk of punishment occurred and therefore jeopardy attached. Thus, Willis concludes, the State's subsequent prosecution of the criminal charges was an impermissible attempt to punish him a second time.² We disagree.

The issue before us, whether double jeopardy principles preclude the use of the same facts to support both a forfeiture proceeding for money confiscated by the police and a subsequent criminal prosecution, is a pure question of law. We therefore conduct a de novo review. See Wilcox v. State, 748 N.E.2d 906, 909 (Ind.Ct.App. 2001),

trans. denied.

"The Double Jeopardy Clause provides, `[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb.'" United States v. Ursery, 518 U.S. 267, 273, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996) (quoting U.S. CONST. amend. V). This clause is applicable to the states through the Fourteenth Amendment and protects a person from suffering (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. Bryant v. State, 660 N.E.2d 290, 295 (Ind.1995), cert. denied. In other words, the Double Jeopardy Clause prohibits the government from "punishing twice, or attempting a second time to punish criminally for the same offense." Ursery, 518 U.S. at 273, 116 S.Ct. 2135 (quotation marks omitted).

Since the earliest years of this nation, however, "Congress has authorized the Government to seek parallel in rem civil forfeiture actions and criminal prosecutions based upon the same underlying events." Id. at 274,116 S.Ct. 2135. Moreover, in a long line of cases, the United States Supreme Court has considered the application of the Double Jeopardy Clause to civil forfeitures, and has consistently concluded that the Clause does not apply to such actions because they do not impose punishment. Id. This is true, according to the Supreme Court, because "[i]n rem civil forfeiture is a remedial civil sanction, distinct from potentially punitive in personam civil penalties such as fines, and does not constitute a punishment under the Double Jeopardy Clause." Id. at 278, 116 S.Ct. 2135. In other words, a forfeiture proceeding is in rem because it is the property that is proceeded against, and, by resort to a legal fiction, held guilty and condemned as though it were conscious instead of inanimate and insentient. Id. at 275, 116 S.Ct. 2135. To the contrary, in a criminal prosecution, it is the wrongdoer who is proceeded against, convicted, and punished. Id. Thus, the forfeiture is no part of the punishment for the criminal offense, and the provision of the Fifth Amendment to the United States Constitution in respect to the Double Jeopardy Clause does not apply. Id.

The Ursery court reiterated the appropriate two-step test in determining whether an in rem civil forfeiture violates the Double Jeopardy Clause. First, we must ask whether the Legislature intended the proceeding to be civil or criminal. Ursery, 518 U.S. at 288, 116 S.Ct. 2135; see also State v. Hurst, 688 N.E.2d 402, 404 (Ind.1997)

. If we determine that a civil proceeding was intended, then we must next consider whether the party challenging the statute has provided the "clearest proof" that the statutory scheme is so punitive, either in form or effect, as to render it criminal despite the Legislature's intention to the contrary. See Ursery, 518 U.S. at 290,

116 S.Ct. 2135; see also Hurst, 688 N.E.2d at 404.

There is little doubt that our Legislature intended forfeiture proceedings pursuant to Indiana Code Article 34-24 to be civil proceedings. Our Legislature's intent in this regard is clearly demonstrated in that the forfeiture statute is not part of our state's criminal code, but is instead located under a civil law title denominated "Civil Proceedings Related To Criminal Activities." See Ind.Code 34-24. Additionally, while our forfeiture statute is "not totally divorced from the criminal law" in that it requires the State to demonstrate that the property sought in forfeiture was used in connection with criminal activities, this fact is insufficient to render the statute punitive. See Ursery, 518 U.S. at 292,

116 S.Ct. 2135; see also Katner v. State, 655 N.E.2d 345, 348 (Ind.1995). Moreover, our supreme court has previously explained that:

[F]orfeiture simultaneously advances other non-punitive, remedial legislative goals. First, forfeiture creates an economic disincentive to engage in future illegal acts. It also serves another significant, albeit secondary, purpose. Forfeiture advances our Legislature's intent to minimize taxation by permitting law enforcement agencies, via the sale of property seized, to defray some of the expense incurred in the battle against drug dealing. It is these broad remedial characteristics which support... [a] determination that forfeiture actions are civil in nature.

Katner, 655 N.E.2d at 347-48. Procedural mechanisms contained in the forfeiture statute further indicate our Legislature's intention that such proceedings be civil. For example, a conviction on the underlying criminal activity is not a prerequisite for forfeiture. See Katner, 655 N.E.2d at 348

. Additionally, the State need only show that the facts supporting forfeiture exist by a preponderance of the evidence—a civil burden of proof. Ind.Code § 34-24-1-4(a); see also Katner, 655 N.E.2d at 348. The imposition of this civil standard of proof is strong evidence that the forfeiture statute was not intended to be a criminal sanction. See Wilcox, 748 N.E.2d at 912.

Having determined that our Legislature intended forfeiture proceedings pursuant to Indiana Code Article 34-24 to be civil in nature, we must next decide whether Willis has provided "the clearest proof" that these proceedings are so punitive in form and effect as to render them criminal despite our Legislature's intent to the contrary. In making this determination, the factors listed in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963) provide the following useful guideposts: (1) whether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as a punishment; (3) whether it comes into play only on a finding of scienter; (4) whether its operation will promote the traditional aims of punishment—retribution and deterrence; (5) whether the behavior to which it applies is already a crime; (6)...