Hill v. CommonwealthHill v. Commonwealth
OPINION
Rory Hill,
pro se,
appeals from an order of the Hardin Circuit Court directing that currency forfeited to the Commonwealth not be returned to him. Mr. Hill argues that the currency wаs not connected to any criminal activity for which he was convicted and should be returned to him. The Commonwealth argues that they made a
prima facie
casе for the forfeiture and that the trial court correctly ruled the money
Appellant was convicted of first-degree assault, two counts of secоnd-degree wanton endangerment, first-degree trafficking in a controlled substance while in possession of a firearm (second offense), possession of a handgun by a convicted felon, and being a second-degree persistent felony offender. He was sentenced to a total of thirty-years’ imрrisonment. This conviction was affirmed by the Kentucky Supreme Court.
At the time Appellant was arrested, police officers found cocaine and $2,175 оn his person. Pursuant to Kentucky Revised Statute (KRS) 218A.410(l)(j), the money was forfeited to the Commonwealth.
[i]t shall be a rebuttable presumption that all moneys, coin, and currency found in close proximity to contrоlled substances, to drug manufacturing or distributing paraphernalia, or to records of the importation, manufacture, or distribution of controlled substances, are presumed to be forfeitable under this paragraph. The burden of proof shall be upon claimants of personal property to rеbut this presumption by clear and convincing evidence. The burden of proof shall be upon the law enforcement agency to prove by clеar and convincing evidence that real property is forfeitable under this paragraph.
On examination of the foregoing statute, it is appаrent that any property subject to forfeiture under (j) must be traceable to the exchange or intended violation. This requirement exists without regard to thе presumption which appears later in the statute....
Recognizing the difficulty of proof with respect to showing a connection between currеncy and drug transactions, the General Assembly created a presumption whereby currency found in close proximity to controlled substances was рresumed to be forfeitable subject to the right of the owner to rebut the presumption. While the presumption would, at first blush, appear to dispense with thе requirement of traceability, we believe the two must be construed harmoniously so as to give effect to the intention of the General Assembly.
The Commonwealth may meet its initial burden by producing slight evidence of traceability. Production of such evidence plus proof of close proximity, the weight оf which is enhanced by virtue of the presumption, is sufficient to sustain the forfeiture in the absence of clear and convincing evidence to the cоntrary. In practical application, the Commonwealth must first produce some evidence that the currency or some portion of it had been used or was intended to be used in a drug transaction. Additional proof by the Commonwealth that the currency sought to be forfeited was found in close рroximity is sufficient to make a prima facie case. Thereafter, the burden is on the claimant to convince the trier of fact that the currency was not being used in thе drug trade.
Osborne v. Commonwealth,
Appellant does not deny that the money and drugs were in close proximity to each other. He does argue that the Commonwealth did not provide the evidence necessary to trace the money to a drug transaction. Appellant claims that the money in his possession was not rеlated to any drug transaction. He argues now, and testified to such during trial, that he won the money gambling on a casino boat. Appellant
The Commonwealth argues that there was sufficient evidence to trace the mоney to the drugs. We agree. During trial, Appellant’s recorded confession was introduced into evidence. When asked if he smoked crack, Appellant replied “No, I don’t smoke no damn crack. Damn. I make money at this shit ...” Also, Appellant was found with one large bag of cocaine in one pants pocket and several small baggies in the other pocket. The trial court described the smaller bags as being “packaged.” Appellant also admitted to “giving” cocaine to a person involved in the underlying crime.
Given this evidence, we find the Commonwealth had “slight evidence of traceаbility.” Osborne at 284. The burden of proof then shifted to Appellant, forcing him to rebut the presumption, by clear and convincing evidence, that the money was not involved in drug related activity.
We review the trial court’s decision using the abuse of discretion standard.
Johnson v. Commonwealth,
Appellant also argues that the forfeiture of the money is an excessive fine that violates the 8th Amendment of the United States Constitution and section 17 of the Kentucky Constitution.
In determining whether a fine is unconstitutionаlly excessive, the trial court must determine that “the property is sufficiently tainted by the criminal act to be subject to forfeiture.” It must also “determine that the particular forfeiture is not grossly disproportionate to the particular offense.” “The touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality.” “Among the factors relevant to this determination [of proportionality] are the gravity of the offense, the potential penalties, the actual sentence, sentences imposed for similar crimes in this and other jurisdictions, and the effect of the forfeiture on innocent third parties.” (Citations omitted).
Smith v. Commonwealth,
The trial court found that the forfeiture was not excessive and we agree. Appellant was sentenced to thirty-years’ imprisonment and the charges he was convicted of were all felonies. When compared to other cases involving the forfeiture of property, this forfeiture cannot be deemed excessive. In Osborne, a motor vehicle was ordered forfeited because it contained one marijuana plant and a set of scales. In Fint, a motor vehicle worth over $1,800 was ordered forfeited. In Smith, a vehicle worth $6,500 was ordered forfeited even though the drugs involved were only worth hаlf that amount.
As for cases in other jurisdictions: in
United States v. One 1990 Ford Ranger Truck,
Additionally, there was no evidence presented to the trial court that innocent third parties would be harmed by the forfeiture. We would also note that Appellant could have been fined between $1,000 and $10,000 due to his being convicted of a felony.
We therefore affirm the order of the trial court denying the return of the money to Appellant.
ALL CONCUR.
Notes
. Even though these cases involve the forfeiture of vehicles, they are still illustrative of the issue.