Opinion
NO. 2010-CA-002285-MR
06-07-2013
ROBERT MJ OSBORNE AND JEWEL McCLAIN APPELLANTS v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Kevin J. Moser Florence, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Christian K. R. Miller Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MASON CIRCUIT COURT
HONORABLE STOCKTON B. WOOD, JUDGE
ACTION NO. 08-CR-00111
OPINION
AFFIRMING
BEFORE: CLAYTON, MOORE, AND NICKELL, JUDGES. MOORE, JUDGE: Robert "MJ" Osborne and Jewel McClain appeal the Mason Circuit Court's order declaring the forfeiture of certain items of their personal property. After a careful review of the record, we affirm the circuit court's order because the forfeiture of the vehicle was proper.
We use the middle name "MJ" without punctuation because that is how his name was spelled in the notice of appeal.
McClain's first and last names are spelled differently throughout the record. At times, her first name is spelled "Jewell" and/or her last name is spelled "Mclain." However, we will use the spelling "Jewel McClain" because that was the spelling used in the notice of appeal.
I. FACTUAL AND PROCEDURAL BACKGROUND
Osborne was initially indicted with the charge of first-degree trafficking in a controlled substance. Osborne was ultimately indicted via superseding indictment on the charges of: First-degree trafficking in a controlled substance; first-degree possession of a controlled substance; and possession of drug paraphernalia. Following a jury trial, he was convicted of facilitation to trafficking in a controlled substance, first-degree. He was sentenced to forty-five days of imprisonment (which he had already served by that time), total court costs of $155.00, and restitution of $100.00.
The Commonwealth moved for an order of forfeiture concerning $532.00 cash and the following personal property: (1) a 2006 Dodge Ram 1500 Pickup Truck; and (2) a cellular telephone. The cash and the personal property were all allegedly obtained during the investigation and arrest of Osborne in this case. The Commonwealth contended that $100.00 of the $532.00 cash "was money used in the controlled drug buy which was the basis of the investigation."
Evidence was submitted showing that: Both Osborne and McClain were listed as the owners of the vehicle on the Ohio Certificate of Title; McClain was listed as the customer on the papers transferring the title from the dealership into her name; both Osborne and McClain were listed as the owners on the application for Kentucky certificate of title/registration; there was a withdrawal from a savings account held in both McClain's and Osborne's names in the exact amount, i.e., $35,745.40, as was paid for the two vehicles, and on the same date that the check was written to pay for the two vehicles, i.e., on April 10, 2008; McClain was the person in whose name the vehicle was insured; and both Osborne and McClain were listed as transferees of the vehicle on the dealership's odometer disclosure statement. Additionally, McClain's "innocent owner affidavit" was submitted to the circuit court, in which she attested that she was the innocent owner of the 2006 Dodge pickup truck, and that she purchased the vehicle on April 4, 2008.
According to the record, two vehicles were purchased from the dealership for the total amount of $35,745.00, and one of those vehicles was the one ordered to be forfeited in this case.
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The circuit court conducted a forfeiture hearing and entered an order of forfeiture concerning the 2006 Dodge pickup truck, the $532.00 cash, a pill cutter, two hose clamps (or pieces thereof), and a cellular telephone. The court stated, in pertinent part, as follows:
1) The Defendant Robert MJ Osborne was convicted by a jury of Facilitation to Traffic in a Controlled Substance, First Degree, oxycodone.
2) The Court finds that said transaction occurred after co-defendant Corey Watson or co-defendant Christine Kemmeter spoke with Osborne via his cell phone. Said cell phone was used to set up a transaction by which Mr. Osborne was to deliver oxycodone for Watson and/or Kemmeter to further deliver to a cooperating witness in this case. Osborne arrived in the 2006 pickup truck, at which time Watson entered the vehicle, rode with Osborne out of sight of an observing officer, and returned to Watson or Kemmeter's home. Watson got out of Osborne's pickup truck and re-entered the house, where
the delivery to the cooperating witness further took place. The Court finds that the oxycodone was delivered inside the Dodge pickup truck, in the presence of and with the knowledge of Osborne, regardless of who else may have been in the vehicle at the time.
3) The Court finds that Mr. Osborne was operating the Dodge pickup truck during the said transaction.
4) The Court finds that shortly after the transaction, the Dodge pickup truck with Defendant driving was stopped nearby by an officer. Found in Defendant's wallet was the $100.00 (five $20.00 bills) which the cooperating witness had given to Corey Watson, who then gave the same money to Osborne in the pickup truck, in exchange for the oxycodone being knowingly transported and illegally transferred to Watson and ultimately to the cooperating witness. Again, the Court finds that the possession of the oxycodone was made in the 2006 Dodge pickup truck at issue in this case; therefore, said oxycodone was possessed illegally and unlawfully by Watson within the vehicle, regardless of whether the oxycodone was properly prescribed and possessed by Osborne prior to said change of possession.
5) In addition to the $100.00 in "buy money" found in Defendant's wallet, there was an additional $432.00 in the same location. There has been no testimony regarding the source of said other money. Thus, being in close proximity, the Court presumes that all of said money is drug related and forfeitable hereunder.
6) A pill cutter with oxycodone residue was found in the pickup truck. No explanation has been given by the Defendant for its use.
7) Two hose clamps, or pieces thereof, were found in Defendant's possession without explanation. Although they were not tested for drug residue, there was testimony at the trial that similar items are used to "cut" or scrape pills for ingesting them. Although there are certainly legitimate uses for hose clamps as well, under
the circumstances of their discovery in this case, the Court will order said hose clamps to be forfeited as well.
8) The Court finds that Jewel McClain, mother of Robert MJ Osborne, provided the actual funds to purchase the 2006 Dodge pickup truck in April, 2008. According to Ms. McClain's "innocent owner affidavit" she purchased the vehicle on April 4, 2008; photocopies of a check and bank statement from Ripley Federal Savings Bank were admitted, showing that Ms. McClain provided the funds for this truck and another truck (one to be used by each of her two sons).
9) An "Odometer Disclosure Statement" submitted has the names of both Jewel McClain and Robert Osborne, but was only signed by Robert Osborne apparently on April 9, 2008.
10) The "Application for Kentucky Certificate of Title/Registration" indicates the vehicle was owned by both Jewel McClain and Robert Osborne, as is evidenced by their signatures on said application.
11) A current printout submitted as Commonwealth's exhibit 3 apparently still shows the owners of the 2006 Dodge pickup truck to be Jewel McClain and Robert Osborne, with the [same] address given for each. . . .
12) The Ohio Certificate of Title 0800354325 issued May 21, 2008 shows both Jewel McClain and Robert Osborne as the owner, with no lien noted.
13) For nearly the entire period between the purchase of the truck and its use in the drug delivery, Ms. McClain was in Florida, leaving primary use and control of the truck with Robert MJ Osborne.
14) The testimony from Ms. McClain indicated that she had no knowledge of her son using this truck to sell or transport illegal drugs. Ms. McClain testified that she was aware of prior drug use by her son, but thought all his drug problems had been resolved. This belief is further shown by Ms. McClain's spontaneous utterance
at the scene of her son's arrest, when, after being told that her son had been arrested for selling oxycodone, exclaimed "I thought you told me you weren't doing this anymore."
The circuit court also found: That Osborne knowingly used the vehicle "to unlawfully deliver oxycodone to Corey Watson in order for the ultimate sale to the cooperating witness"; that there was "no legitimate explanation for the pill cutter or hose clamps in their location"; that "Watson or Kemmeter's phone number appeared in Osborne's [cellular telephone] as a recent call," so "Osborne used his [cellular telephone] to arrange illegally the sale of oxycodone"; and that the $432.00 was "in close proximity to the $100.00 buy money." The court held Osborne and McClain each owned a one-half interest in the vehicle. Therefore, the court ordered Osborne's one-half interest in the vehicle, as well as the $532.00, the pill cutter, the hose clamps, and the cellular telephone, to be forfeited. Regarding the vehicle, the court stated that the pickup truck's value at the time it was seized was $17,000.00, and that Osborne's one-half interest in that, which was forfeited, was $8,500.00 in value. The court held that McClain had fourteen days to negotiate with the Commonwealth whether she wanted to pay the Commonwealth for Osborne's one-half interest in the vehicle. If no agreement was reached in that time, the vehicle would be sold with one-half of the net proceeds returned to McClain.
Osborne and McClain now appeal, contending that: (1) the circuit court erred in ordering the vehicle's forfeiture after McClain proved herself to be the innocent owner; and (2) the circuit court erred in granting an order of forfeiture where the forfeiture fine was excessive and unconstitutional.
II. STANDARD OF REVIEW
"Findings of fact made by a trial court are reviewed under the clearly erroneous standard, . . . and rulings of law are reviewed de novo." Commonwealth v. Coffey, 247 S.W.3d 908, 910 (Ky. 2008).
III. ANALYSIS
A. McCLAIN AS "INNOCENT OWNER"
Osborne and McClain argue that the circuit court erred in ordering the vehicle's forfeiture after McClain proved herself to be the innocent owner of the vehicle. In the circuit court, as the party moving for the forfeiture, the Commonwealth had "the initial burden of proving the forfeiture's propriety. The owner, then, . . . ha[d] the burden of establishing any affirmative defense. The standard of proof . . . [was] by a preponderance of the evidence." Hinkle v. Commonwealth, 104 S.W.3d 778, 781 (Ky. App. 2002).
Kentucky Revised Statutes (KRS) 218A.410 states in pertinent part as follows:
(1) The following are subject to forfeiture:
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(d) . . . [A]ll vehicles owned and used by the seller or distributor for the manufacture, distribution, sale, or transfer of substances in violation of KRS 218A.350 shall be seized and forfeited to the state.
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(f) All raw materials, products, and equipment of any kind which are used, or intended for use, in manufacturing, compounding, processing, delivering, importing, or exporting any controlled substance in violation of this chapter;
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(h) All conveyances, including . . . vehicles . . . which are used, or intended for use, to transport, or in any manner to facilitate the transportation, for the purpose of sale or receipt of property described in paragraph . . . (f) of this subsection, but:
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2. No conveyance is subject to forfeiture under this section by reason of any act or omission established by the owner thereof to have been committed or omitted without his or her knowledge or consent.* * * *
(j) Everything of value furnished, or intended to be furnished, in exchange for a controlled substance in violation of this chapter, all proceeds, including real and personal property, traceable to the exchange, and all moneys . . . used, or intended to be used, to facilitate any violation of this chapter; except that no property shall be forfeited under this paragraph, to the extent of the interest of an owner, by reason of any act or omission established by him or her to have been committed or omitted without his or her knowledge or consent. It shall be a rebuttable presumption that all moneys, coin, and currency found in close proximity to controlled 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 rebut this presumption by clear and convincing evidence.
In the present case, although Osborne was ultimately convicted of the lesser charge of facilitation to trafficking in a controlled substance, a conviction on the original charge of trafficking was unnecessary to support the forfeiture. See Robbins v. Commonwealth, 336 S.W.3d 60, 65 (Ky. 2011). "To satisfy its initial burden, the Commonwealth need only produce slight evidence of traceability." Robbins, 336 S.W.3d at 65 (internal quotation marks and citation omitted). "The trial court has discretion in determining whether the burdens contained in KRS 218A.410 are met as well as discretion in ordering the ultimate forfeiture, under the terms of the statute." Brewer v. Commonwealth, 206 SW.3d 313, 325 (Ky. 2006). That statute "subjects the motor vehicle to forfeiture on proof that it was used to facilitate the transportation for the purpose of sale or receipt of controlled substances unless the owner . . . is able to establish that such use, if any, was without her knowledge or consent." Brewer, 206 S.W.3d at 326 (internal quotation marks and citation omitted).
In the present case, the circuit court found that McClain and Osborne were each one-half owners of the vehicle, and that McClain was an "innocent owner" because she was unaware that Osborne was using the vehicle to facilitate the transportation of controlled substances for the purpose of selling them. The parties do not contest that McClain was an innocent owner; rather, they contest whether she was the sole owner of the vehicle, or whether she and Osborne shared ownership of the vehicle.
Based upon the evidence presented, the circuit court found that both McClain and Osborne owned the vehicle. The circuit court's finding was not clearly erroneous. During the forfeiture hearing, McClain testified that she purchased the vehicle the day before she left for Florida. McClain did not know how long she would be gone to Florida; therefore, she also listed Osborne's name so that he could complete any title work or tag work that was necessary for the vehicle while she was gone. McClain attested that Osborne was supposed to begin making monthly payments to her of $350.00 toward the purchase price of the vehicle: $300.00 of that amount was going to be applied toward the vehicle's purchase price, and the remaining $50.00 was for insurance on the vehicle. McClain testified that she insured the vehicle, and it would remain in her name until Osborne had paid it off in full. Osborne used the truck for work purposes because he was starting a business of shoeing horses and he needed the truck to transport his equipment.
McClain testified that she left for Florida the day after the vehicle was purchased. She returned for a period of time in May to have surgery, then she went back to Florida and returned on June 5, 2008, i.e., four days before Osborne committed his offense in this case. McClain attested that when she returned in May to have surgery, she drove the vehicle at issue. Osborne had driven it at least twice since McClain purchased the vehicle.
As previously explained, documented evidence was submitted showing that: Both Osborne and McClain were listed as the owners of the vehicle on the Ohio Certificate of Title; McClain was listed as the customer on the papers transferring the title from the dealership into her name; both Osborne and McClain were listed as the owners on the application for Kentucky certificate of title/registration; there was a withdrawal from a savings account held in both McClain and Osborne's names in the exact amount, i.e., $35,745.40, as was paid for the two vehicles, and on the same date that the check was written to pay for the two vehicles, i.e., on April 10, 2008; McClain was the person in whose name the vehicle was insured; and both Osborne and McClain were listed as transferees of the vehicle on the dealership's odometer disclosure statement.
Because there was sufficient evidence provided to show that Osborne owned a one-half interest in the vehicle, and because "credibility determinations are within the exclusive province of the fact-finder," Smith v. Commonwealth, 339 S.W.3d 485, 488 (Ky. App. 2010), the circuit court did not abuse its discretion in finding that Osborne owned a one-half interest in the vehicle. Therefore, pursuant to KRS 218A.410, the circuit court did not err in finding that Osborne's one-half ownership interest in the vehicle was subject to forfeiture.
B. CONSTITUTIONALITY OF FORFEITURE FINE
Osborne and McClain next assert that the circuit court erred in granting an order of forfeiture where the forfeiture fine was excessive and unconstitutional.
In determining whether a fine is unconstitutionally 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.Smith v. Commonwealth, 205 S.W.3d 217, 223 (Ky. App. 2006) (internal quotation marks and citations omitted).
The circuit court found that the forfeiture was not excessive, and we agree. Osborne was convicted of first-degree facilitation to trafficking in a controlled substance, which carried a maximum possible penalty of twelve months of imprisonment and a $500 fine. See KRS 506.080(2)(b); KRS 218A.1412(1)(e), (3)(b); KRS 532.090(1); KRS 534.040(2)(a). Osborne was sentenced to forty-five days of imprisonment, $155.00 in total court costs, and $100.00 restitution. He was ordered to forfeit $532.00 in cash and his one-half interest in the vehicle (the court estimated that Osborne's one-half interest in the vehicle was $8,500.00); a pill cutter and hose clamps of unspecified value;, and a cellular telephone of unspecified value. In the unrelated case of Osborne v. Commonwealth, 839 S.W.2d 281 (Ky. 1992), the Kentucky Supreme Court found it proper and not excessive for an inoperable 1978 Chevrolet Blazer motor vehicle to be forfeited when it contained a marijuana plant and scales of the type used to weigh drugs, despite the fact that the charges against the appellant herself were dismissed. Additionally, in a subsequent opinion discussing the issue of whether a forfeiture was excessive, the Kentucky Supreme Court mentioned that the vehicle's forfeiture in Osborne had been proper and not excessive. See Commonwealth v. Fint, 940 S.W.2d 896, 898 (Ky. 1997). Moreover, there is virtually no effect of the forfeiture on any third party because McClain will get her money back from her one-half interest when the vehicle is sold, and McClain never attested that this particular vehicle was her primary mode of transportation. Consequently, we find the circuit court properly determined that the forfeiture of the vehicle was not excessive.
Accordingly, we affirm the Mason Circuit Court's order.
ALL CONCUR. BRIEF FOR APPELLANT: Kevin J. Moser
Florence, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Christian K. R. Miller
Assistant Attorney General
Frankfort, Kentucky