Opinion
NO. 2012-CA-001928-MR
02-14-2014
SOUTHIE FANNIN, III APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Linda Roberts Horsman Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Frankfort, Kentucky Wm. Robert Long, Jr. Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JOHNSON CIRCUIT COURT
HONORABLE JOHN DAVID PRESTON, JUDGE
ACTION NO. 12-CR-00037
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; MAZE AND STUMBO, JUDGES. STUMBO, JUDGE: Southie Fannin, III appeals from the October 3, 2012 order of the Johnson Circuit Court which ordered the forfeiture of $1,100.00 in cash found on Fannin at the time of his 2011 arrest. Because we hold that the trial court's findings are supported by the evidence, we affirm.
In 2011, Deputy Kevin Pelphrey received a complaint that Fannin had used counterfeit money to purchase pills. In an attempt to catch Fannin using counterfeit money, Deputy Pelphrey collaborated with a confidential informant to orchestrate a bogus pill transaction. The plan was for Fannin to come to the informant's home and give money to the informant, at which time the police would arrest Fannin. However, once at the informant's home, Fannin refused to turn over the money to the informant. Therefore, the informant and Fannin got into Fannin's car and began driving, allegedly to the location of a dealer the informant knew. While en route to the alleged dealer's house, Fannin was pulled over and searched by police. The search revealed $1,100.00 in legitimate money and $150.00 in counterfeit money. Fannin was subsequently charged with and convicted of two counts of first degree possession of a forged instrument. Thereafter, the Commonwealth sought the forfeiture of the $1,100.00 in legitimate money that was found on Fannin at the time of his arrest. A hearing was conducted and the trial court ordered that the money be forfeited. This appeal followed.
The sole issue on appeal is whether the trial court erred when it ordered forfeiture of the $1,100.00 legitimate money. We hold that it did not. Property subject to forfeiture includes "[e]verything of value furnished, or intended to be furnished, in exchange for a controlled substance[.]" KRS 218A.410(1)(j) (emphasis added). In support of its order that the money be forfeited, the trial court stated the following:
The evidence establishes that the Defendant received the funds as a result of a refund of his bond money.
The issue then becomes whether the $1100.00 in cash was 'intended to be furnished, in exchange for a controlled substance.' The evidence for the Commonwealth was submitted by Deputy Sheriff Pelphrey, who testified that [informant] set up a proposed drug transaction with the Defendant Southie Fannin, III. There was in fact no drug transaction, because it was a sting operation from beginning to end. Further, it appears that the transaction was set up by [informant], who did not testify in this matter. Thus, the Commonwealth's evidence that the money was intended to be used for the purchase of drugs is thin. On the other hand the Defendant did not testify to rebut the evidence of Officer Pelphrey, nor did the Defendant call [informant] or any other witness to disprove the Commonwealth's evidence.
By the slimmest of margins, the Court finds that the $1100.00[] in cash was in fact intended to be furnished in exchange for a controlled substance.
A trial court's findings of fact "shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Kentucky Rules of Civil Procedure (CR) 52.01. Findings are clearly erroneous if they are "manifestly against the weight of the evidence. " Acton v. Acton, 283 S.W.3d 744, 749 (Ky. App. 2008) (citation omitted).
Fannin argues that the money could not have been intended for the purchase of pills because he had received it as the result of bond money. However, the originating source of the money is irrelevant in this case. The Commonwealth did not argue that Fannin received the money from a pill sale, but that it was intended for a pill purchase. Thus, it is the intended use of the money that dictated whether the money should be forfeited. KRS 218A.410(1)(j). Fannin further argues that the money could not have been intended for a pill purchase, because the alleged purchase was actually a ruse that never took place. Again, this detail is irrelevant. The intent contemplated by KRS 218A.410 is that of the forfeited property's "owner." In this case, there is no evidence that Fannin did not believe a transaction was going to take place. Fannin argues that the Commonwealth failed to show his intent and cites to Harbin v. Commonwealth, 121 S.W.3d 191 (Ky. 2003), as support for his argument. The party challenging forfeiture in Harbin presented testimony to the trial court that money discovered in a vehicle was intended as a down payment on a house. Id. Because the Commonwealth failed to refute that testimony, the Court held that forfeiture was improper. Id. However, unlike the parties in Harbin, Fannin offered no evidence in support of his claim that the money was not intended for the purchase of pills. Indeed, not even Fannin himself testified. It is well established that the Commonwealth's initial burden is to produce only "some evidence, however slight," before the evidentiary burden shifts to the party opposing forfeiture. Brewer v. Commonwealth, 206 S.W.3d 343, 348 (Ky. 2006). Because the only evidence presented was that Fannin took the money with him on what he believed to be a drug transaction, the trial court's finding that the money was intended for such is not manifestly against the weight of the evidence. Although the evidence may have been minimal, it was the only evidence presented by either party. Several other cases to which Fannin cites relate to a statutory presumption of forfeiture based on the proximity of forfeited property to elements of a crime and are therefore inapplicable. See Robbins v. Commonwealth, 336 S.W.3d 60 (Ky. 2011); Gray v. Commonwealth, 233 S.W.3d 715 (Ky. 2007); Smith v. Commonwealth, 339 S.W.3d 485 (Ky. App. 2010).
Accordingly, we affirm the October 3, 2012 order of the Johnson Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Linda Roberts Horsman
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky
Wm. Robert Long, Jr.
Assistant Attorney General
Frankfort, Kentucky