MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as Feb 06 2020, 8:55 am
precedent or cited before any court except for the CLERK
purpose of establishing the defense of res judicata, Indiana Supreme Court
Court of Appeals
collateral estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Stephen Gerald Gray Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Justin F. Roebel
Supervising Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
$17,084.00 in United States February 6, 2020
Currency and Edward Weaver, Court of Appeals Case No.
Appellants-Defendants, 19A-MI-1710
Appeal from the Marion Superior
v. Court
The Hon. Gary Miller, Judge
State of Indiana, Trial Court Cause No.
Appellee-Plaintiff. 49D03-1809-MI-38346
Bradford, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-MI-1710 | February 6, 2020 Page 1 of 10
Case Summary
[1] In September of 2018, Edward Weaver was driving a truck in Indianapolis and
was stopped after being involved in a mobile shoot-out with another vehicle.
Approximately $17,000.00 was found on Weaver’s person and in the truck,
along with three handguns and various controlled substances. A search of the
area where the shoot-out began yielded a one-half kilogram package of white
powder that appeared to be cocaine, but was later determined not to be. The
State filed a forfeiture action to seize the approximately $17,000.00, and
Weaver moved for summary judgment. The trial court denied Weaver’s
motion for summary judgment and, after a bench trial, granted the State’s
forfeiture request. Weaver contends that the trial court erred in denying his
summary-judgment motion and that the State produced insufficient evidence to
sustain a forfeiture of the money. Because we disagree with both contentions,
we affirm.
Facts and Procedural History
[2] Early on September 19, 2018, Indianapolis Metropolitan Police Officer Michael
Finch was parked near 38th Street and Sherman Drive in Indianapolis when he
heard two or three gunshots. As Officer Finch was driving out of the parking
lot to investigate, he heard two vehicles squealing their tires and observed two
vehicles, at least one a truck, eastbound on 38th Street toward Sherman Drive,
exchanging gunfire. Officer Finch engaged his lights and siren while following
the vehicles. When one of the vehicles, a truck, abruptly turned south on
Sherman Drive, Officer Finch pursued, and the truck stopped soon thereafter.
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[3] The doors of the truck opened, and Weaver emerged. The agitated Weaver did
not comply with Officer Finch’s commands, had suffered a superficial head
wound, and was eventually handcuffed. Officer Finch observed a white,
powdery substance on the backseat of the truck, and Weaver had approximately
$14,000.00 in cash on his person. Officer Finch saw two or three handguns in
the truck and found no records indicating that any of the three occupants had a
license to carry those weapons.
[4] The truck was searched, and officers found approximately sixty buprenorphine
pills, twenty-seven Suboxone strips, and a number of Xanax pills, none of
which were in original packaging. Officers also recovered approximately
$3000.00 from the truck. Although the number of pills and Suboxone strips
found could be consistent with either drug dealing or personal use, it was not
normal to find a drug user with three types of narcotics.
[5] Shortly after the stop, Officer Linda Roeschlein went to the area on 38th Street
where Officer Finch had first heard shots to look for shell casings. Officer
Roeschlein found a taped-up but ripped-open package of a chunky powder the
“size of a brick” that appeared to be cocaine. Tr. Vol. II p. 53. The package
was in the middle of the road and “would have probably been smashed” if it
had been there the entire day. Tr. Vol. II p. 55–56. As it happened, later testing
revealed that the package did not, in fact, contain cocaine. The package
weighed approximately one-half kilogram and would have had a street value of
approximately $17,000.00 had it been cocaine.
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[6] On September 24, 2018, the State filed a complaint seeking forfeiture of the
$17,084.00 in currency which had been seized. The complaint alleged the
“currency had been furnished or was intended to be furnished in exchange for
violation of criminal statute, or is traceable as proceeds of violation of criminal
statute, in violation of Indiana law, as provided in I.C. 34-24-1-1.” Appellant’s
App. Vol. II p. 11. On February 25, 2019, Weaver moved for summary
judgment, alleging that the State had not proven any nexus between the money
and qualifying criminal activity. In support, Weaver designated the forfeiture
complaint and the charging information, probable-cause affidavit, laboratory
report, and State’s motion to dismiss cocaine-related charges from criminal
cause number 49G21-1809-F2-32387.
[7] On March 22, 2019, the State responded, arguing that forfeiture of the money
was warranted even in the absence of any actual cocaine because the sale of a
substance represented to be a controlled substance is also a crime supporting
forfeiture. On May 8, 2019, the trial court denied Weaver’s summary-
judgement motion. On June 26, 2019, a bench trial was held, and, on July 17,
2019, the trial court entered judgment in favor of the State.
Discussion and Decision
I. Summary-Judgment Motion
[8] When reviewing the denial of a summary-judgment motion, we apply the same
standard as that of the trial court. Smith v. Delta Tau Delta, Inc., 9 N.E.3d 154,
160 (Ind. 2014). Summary judgment is precluded by any genuine issue of
material fact, “that is, any issue requiring the trier of fact to resolve the parties’
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differing accounts of the truth.” Hughley v. State, 15 N.E.3d 1000, 1003 (Ind.
2014). The moving party has the burden of making a prima facie showing from
the designated evidentiary matter that there are no genuine issues of material
fact and that it is entitled to judgment as a matter of law. Smith, 9 N.E.3d at
160. If the moving party satisfies this burden, then the non-moving party must
show from the designated evidentiary matter the existence of a genuine issue of
fact precluding summary judgment. Id. The court considers only the
designated evidentiary matters, and all evidence and inferences are reviewed in
the light most favorable to the non-moving party. Id.; Ind. Trial Rule 56(C).
[9] Weaver was not entitled to summary judgment because his designated evidence
did not establish the absence of a genuine issue of material fact. The “moving
party bears the burden of specifically designating materials that make a prima
facie showing that there are no genuine issues of material fact and that the
moving party is entitled to a judgment as a matter of law.” Allen v. Hinchman,
20 N.E.3d 863, 869 (Ind. Ct. App. 2014), trans. denied. Prima facie may be
defined as “‘[s]ufficient to establish a fact or raise a presumption unless
disproved or rebutted; based on what seems to be true on first examination,
even though it ma[y] later be proved to be untrue.’” City of Gary v. Auto-Owners
Ins. Co., 116 N.E.3d 1116, 1123 (Ind. Ct. App. 2018) (citation omitted).
[10] Indiana law permits the State to seek forfeiture of all money “furnished or
intended to be furnished by any person in exchange for an act that is in
violation of a criminal statute [or] traceable as proceeds of the violation of a
criminal statute” for crimes or attempts which are a violation of Indiana Code
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chapter 35-48-4. Ind. Code § 34-24-1-1(a)(2). Weaver claims he made a prima
facie showing that he is entitled to summary judgment because (1) the apparent
brick of cocaine was not actually cocaine and (2) Weaver’s cocaine-related
charges had been dismissed. As the State points out, however, the sale of a
look-a-like drug is also a crime defined in Indiana code chapter 35-48-4, thereby
supporting the forfeiture of money shown to be connected to it. See Ind. Code
§§ 35-48-4-4.5 (repealed effective July 1, 2019), 35-48-4-4.6 (enacted effective
July 1, 2019) (“A person who knowingly or intentionally […] delivers [or]
finances the delivery of [….] a substance represented to be a controlled
substance commits a Level 6 felony.”).
[11] That said, Weaver’s designated evidence—which included the probable cause
affidavit—easily generates a question of a material fact about whether the
money was related to dealing a substance represented to be cocaine.
Specifically, one-half kilogram of apparent cocaine was found at the location in
the street where a gunfight started between two vehicles, one of which was
begin driven by Weaver. When Weaver was stopped, police found multiple
handguns; many types of narcotics; and a white, powdery substance in his
vehicle, while Weaver was found in possession of an amount of currency which
is consistent with the street value of one-half kilogram of cocaine. While the
apparent cocaine was ultimately shown to not be genuine, a reasonable
inference is that Weaver either sold (or attempted to sell) or bought (or
attempted to buy) a white powder meant to be taken as packaged cocaine. Any
of these scenarios amounts to a crime supporting forfeiture. Put another way,
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even though the package was found to not contain any cocaine, that does not
eliminate the possibility of the money being related to an offense such that
forfeiture is supportable. Weaver did not meet his initial burden to show he
was entitled to summary denial of the forfeiture complaint. 1
II. Sufficiency of the Evidence
[12] The standard of review for challenges to the sufficiency of the evidence
supporting civil judgments is the same as that in criminal cases. Lipscomb v.
State, 857 N.E.2d 424, 427 (Ind. Ct. App. 2006) (applying sufficiency standard
to a forfeiture). The court will neither reweigh the evidence nor reassess the
credibility of witnesses. Gonzalez v. State, 74 N.E.3d 1228, 1230 (Ind. Ct. App.
2017). “When there is substantial evidence of probative value to support the
trial court’s ruling, it will not be disturbed.” Id. We “will reverse only when we
are left with a definite and firm conviction that a mistake has been made.” Id.
[13] “Civil forfeiture is a device, a legal fiction, authorizing legal action against
inanimate objects for participation in alleged criminal activity, regardless of
whether the property owner is proven guilty of a crime—or even charged with a
crime.” Serrano v. State, 946 N.E.2d 1140, 1140 (Ind. 2011). To obtain the right
to dispose of property, use the property, or recover law enforcement costs, the
1
Because Weaver failed to make a prima facie showing that he is entitled to summary judgment on the basis
that there was no actual cocaine, we need not address the question of whether the State successfully rebutted
such a showing. For the same reason, we also need not address Weaver’s argument that the trial court
improperly relied upon the probable-cause affidavit from his criminal case, as Weaver contends only that the
State improperly used it to rebut his alleged prima facie showing.
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State must demonstrate by a preponderance of the evidence that the property
was subject to seizure pursuant to Indiana’s forfeiture statute. Ind. Code § 34-
24-1-4(a)1; Serrano, 946 N.E.2d at 1142–43.
[14] The Indiana Supreme Court has noted the following:
In Kantner v. State, 655 N.E.2d 345 (Ind. 1995), this Court held
that to sustain a forfeiture the State must demonstrate that the
property sought in forfeiture was used to commit one of the
enumerated offenses under the statute. This nexus, we said, best
articulates the statute’s requirement of proof by a preponderance
that the property is subject to forfeiture. Id. at 349. Requiring
such proof, Justice Selby wrote, is a “means to guarantee that the
government is seizing actual instrumentalities of illegal drug
trade…. Depriving persons of their property such as vehicles
unrelated to the drug trade will do little to advance our
Legislature’s intent.” Id. at 349. Drawing a comparison to the
Seventh Circuit’s application of federal statutes, we held that our
statute “requires more than an incidental or fortuitous connection
between the property and the underlying offense.” Id. at 348–49
(comparing our statute to the federal act discussed in United States
v. 916 Douglas Avenue, 903 F.2d 490 (7th Cir. 1990)).
Serrano, 946 N.E.2d at 1143 (ellipsis in Serrano).
[15] Weaver argues that the State failed to produce any evidence connecting the
$17,084.00 to any illegal activity that would support forfeiture. We disagree.
Officer Finch testified that he observed a white, powdery substance on the
backseat of the truck, Weaver had approximately $14,000.00 on his person, and
approximately $3000.00 more was recovered from the truck. Officer Finch saw
two or three handguns in the truck and found no records indicating that any of
its three occupants had a license to carry those weapons. Officers found
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approximately sixty buprenorphine pills, twenty-seven Suboxone strips, and a
number of Xanax pills, none of which were in original packaging. Finally, the
State produced evidence linking Weaver to the truck, which was registered to
Takeisha Young, Weaver’s girlfriend and the mother of his child. This
evidence, as a whole, leads to an inference that Weaver was involved in drug
dealing in general.
[16] As for the brick of apparent cocaine in particular, Officer Roeschlein testified
that she was sent to the area where the mobile shoot-out began and found a
taped-up but ripped-open package of a chunky powder the size of a brick that
appeared to be cocaine in the middle of the road. The package weighed
approximately one-half kilogram and would have had a street value of
approximately $17,000.00 had it been cocaine, a figure very close to the
$17,084.00 recovered from Weaver’s person and the truck. There is more than
enough to infer that Weaver either sold or attempted to sell a substance he
represented to be cocaine, or attempted to buy a substance represented to be
cocaine, and that the $17,084.00 was transferred (or intended to be transferred)
in the drug deal gone bad.2 Weaver argues that there is no evidence linking him
to any of the drugs or guns or that any of the money was obtained illegally.
This is nothing more than an invitation to reweigh the evidence, which we will
not do. See Gonzalez, 74 N.E.3d at 1230. Based on this record, we have little
2
Another reasonable inference is that the buyers becoming aware of the true nature of the package is what
led to the gunfight.
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trouble concluding that the State produced ample evidence to establish a nexus
between the money and the underlying offense of dealing a substance
represented to be controlled substance.
[17] We affirm the judgment of the trial court.
Robb, J., and Altice, J., concur.
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