State v. $44,140.00 United States Currency
2012 ND 176
| N.D. | 2012Background
- Currency seized during a search of Birkholz's residence; $44,140 found in a desk safe near marijuana plants.
- August 2010 search yielded eleven marijuana plants, paraphernalia, and cash; May 2011 Birkholz pled guilty to drug offenses.
- November 2010 civil forfeiture action against the currency; Birkholz claimed lawful possession.
- District court ordered forfeiture based on presumptions in N.D.C.C. § 19-03.1-23.3, particularly subsections (1)(b) and (1)(d).
- Birkholz moved for a new trial alleging newly discovered refinancing proceeds; district court denied the motion; on appeal, court affirmed forfeiture and denial of new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Preservation of incorporation issue under 29-31.1 and 19-03.1-23.3 | State contends issue not preserved; presumptions apply | Birkholz argues presumptions do not apply to ch. 29-31.1 actions | Issue not preserved; not reviewed on appeal |
| Sufficiency of transaction proof to trigger 19-03.1-23.3(1)(d) | Presumption (1)(d) supported by evidence of ongoing drug transactions | No direct evidence of a qualifying transaction | Sufficient evidence to support inference of a transaction; not clearly erroneous |
| Application of 19-03.1-23.3 presumptions to forfeiture proceedings | Presumptions apply to this proceeding as argued in district court | Issue not preserved below; incorporation into ch. 29-31.1 not raised | Court declines to address preservation issue; basis for affirming forfeiture remains under (1)(b) and (1)(d) |
| Denial of motion for a new trial on newly discovered evidence | Evidence of refinancing proceeds could affect outcome | Newly discovered evidence not proven to meet five-part test | No abuse of discretion; denial affirmed |
Key Cases Cited
- State v. Bergstrom, 2006 ND 45, 710 N.W.2d 407 (N.D. 2006) (establishes two-stage forfeiture and standard of review )
- One 1990 Chevrolet Pickup, 523 N.W.2d 395 (N.D. 1990) (explains burden-shifting in forfeiture and standard of review )
- State v. Osier, 1999 ND 28, 590 N.W.2d 205 (N.D. 1999) (limits when issues may be raised on appeal following a new-trial motion )
- Paulson v. Paulson, 2011 ND 159, 801 N.W.2d 746 (N.D. 2011) (describes precondition to raising issues on appeal after trial )
- Spratt v. MDU Resources Group, Inc., 2011 ND 94, 797 N.W.2d 328 (N.D. 2011) (illustrates general principle that issues must be raised below to be reviewed on appeal)