ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
STEPHEN GERALD GRAY STEVE CARTER
Indianapolis, Indiana Attorney General of Indiana
Deputy Attorney General
COURT OF APPEALS OF INDIANA
JOSHUA A. WILLIS, )
vs. ) No. 30A05-0307-CR-348
STATE OF INDIANA, )
APPEAL FROM THE HANCOCK SUPERIOR COURT
The Honorable Dan E. Marshall, Judge
Cause No. 30D02-0101-DF-054
April 21, 2004
OPINION - FOR PUBLICATION
BROOK, Senior Judge
Appellant-defendant Joshua A. Willis appeals his conviction for operating a vehicle while intoxicated,
a Class D felony.
Willis raises two issues on appeal, which we restate as follows:
I. Whether the trial court properly denied Willis motion to dismiss, and
II. Whether there was sufficient evidence to sustain Willis conviction.
Facts and Procedural History
On May 20, 2003, Willis and the State submitted the following stipulation of
facts to the trial court:
On January 12, 2001, [Willis] was operating a vehicle in Hancock County.
Greenfield police responded to the 300 Block of West North Street and observed
Willis vehicle parked partially on the sidewalk. All events occured [sic] in
the State of Indiana.
Officers observed [Willis] to have slurred speech, glassy eyes, poor manual dexterity, and
poor balance. Willis failed [five] field sobriety tests; one legged stand, walk
and turn, gaze nystagmus, finger to nose and backward count. There was
an odor of burnt marijuana on his person.
Prior to transporting for a chemical test, a pat down search was performed.
A plastic bag was slightly protruding from the top of [Willis] waistband.
The officer asked what the bag was and [Willis] responded, nothing.
At this time the officer pulled the bag from his pants and found
$1,300.00 cash. No drugs or paraphenalia [sic] were found on Willis or
in his vehicle.
Willis was transported to Hancock Memorial Hospital and tested for substances. Willis
tested positive for marijuana at 32 ng/ml, but negative for alcohol. A
triage drug screen showed a positive test for Benzodiazepine but a subsequent drug
confirming study showed a negative test for Benzodiazepine, but a positive test for
[Willis] has a prior conviction for operating while intoxicated in Hancock County on
May 3, 1998 under cause no. 30D02-9806-CM-546.
[Willis] was observed by off duty officer Toby Holliday trying to back [his]
vehicle off the sidewalk and back onto the street.
Appellants App. at 5 (emphasis deleted).
Discussion and Decision
On March 27, 2001,
before the parties stipulated to the facts above, the
State filed a complaint for forfeiture, alleging that the $1,300.00 found on Willis
person and seized by police at the time of his arrest constituted proceeds
from the sale of controlled substances. On April 10, 2003, the parties
proceeded to trial on the States forfeiture complaint. Evidence was presented, and
the trial court took the matter under advisement.
On May 14, 2003, Willis filed a motion to dismiss the criminal charge
in the present cause, arguing that the earlier forfeiture proceeding barred the instant
criminal proceeding due to double jeopardy principles. The trial court denied Willis
motion to dismiss on May 15, 2003.
On June 5, 2003, the trial court found Willis guilty of operating a
vehicle while intoxicated, a Class D felony. This appeal ensued.
I. Motion to Dismiss/Double Jeopardy
Willis argues that the trial court erroneously denied his motion to dismiss.
Specifically, Willis asserts that when the forfeiture complaint went to trial, a risk
of punishment occurred and therefore jeopardy attached. Thus, Willis concludes, the States
subsequent prosecution of the criminal charges was an impermissible attempt to punish him
a second time.
The issue before us, whether double jeopardy principles preclude the use of the
same facts to support both a forfeiture proceeding for money confiscated by the
police and a subsequent criminal prosecution, is a pure question of law.
We therefore conduct a
de novo review. See Wilcox v. State, 748
N.E.2d 906, 909 (Ind. Ct. App. 2001), trans. denied.
The Double Jeopardy Clause provides, [N]or shall any person be subject for the
same offense to be twice put in jeopardy of life or limb.
United States v. Ursery, 518 U.S. 267, 273 (1996) (quoting U.S. Const. amend.
V). This clause is applicable to the states through the Fourteenth Amendment
and protects a person from suffering (1) a second prosecution for the same
offense after acquittal, (2) a second prosecution for the same offense after conviction,
and (3) multiple punishments for the same offense. Bryant v. State, 660
N.E.2d 290, 295 (Ind. 1995), cert. denied. In other words, the Double
Jeopardy Clause prohibits the government from punishing twice, or attempting a second time
to punish criminally for the same offense. Ursery, 518 U.S. at 273
(quotation marks omitted).
Since the earliest years of this nation, however, Congress has authorized the Government
to seek parallel
in rem civil forfeiture actions and criminal prosecutions based upon
the same underlying events. Id. at 274. Moreover, in a long
line of cases, the United States Supreme Court has considered the application of
the Double Jeopardy Clause to civil forfeitures, and has consistently concluded that the
Clause does not apply to such actions because they do not impose punishment.
Id. This is true, according to the Supreme Court, because [i]n
rem civil forfeiture is a remedial civil sanction, distinct from potentially punitive in
personam civil penalties such as fines, and does not constitute a punishment under
the Double Jeopardy Clause. Id. at 278. In other words, a
forfeiture proceeding is in rem because it is the property that is proceeded
against, and, by resort to a legal fiction, held guilty and condemned as
though it were conscious instead of inanimate and insentient. Id. at 275.
To the contrary, in a criminal prosecution, it is the wrongdoer who
is proceeded against, convicted, and punished. Id. Thus, the forfeiture is
no part of the punishment for the criminal offense, and the provision of
the Fifth Amendment to the United States Constitution in respect to the Double
Jeopardy Clause does not apply. Id.
The Ursery court reiterated the appropriate two-step test in determining whether an in
rem civil forfeiture violates the Double Jeopardy Clause. First, we must ask
whether the Legislature intended the proceeding to be civil or criminal. Ursery,
518 U.S. at 288; see also State v. Hurst, 688 N.E.2d 402, 404
(Ind. 1997). If we determine that a civil proceeding was intended, then
we must next consider whether the party challenging the statute has provided the
clearest proof that the statutory scheme is so punitive, either in form or
effect, as to render it criminal despite the Legislatures intention to the contrary.
See Ursery, 518 U.S. at 290; see also Hurst, 688 N.E.2d at
There is little doubt that our Legislature intended forfeiture proceedings pursuant to Indiana
Code Article 34-24 to be civil proceedings. Our Legislatures intent in this
regard is clearly demonstrated in that the forfeiture statute is not part of
our states criminal code, but is instead located under a civil law title
denominated Civil Proceedings Related To Criminal Activities. See Ind. Code 34-24.
Additionally, while our forfeiture statute is not totally divorced from the criminal law
in that it requires the State to demonstrate that the property sought in
forfeiture was used in connection with criminal activities, this fact is insufficient to
render the statute punitive. See Ursery, 518 U.S. at 292; see also
Katner v. State, 655 N.E.2d 345, 348 (Ind. 1995). Moreover, our supreme
court has previously explained that:
[F]orfeiture simultaneously advances other non-punitive, remedial legislative goals. First, forfeiture creates an
economic disincentive to engage in future illegal acts. It also serves another
significant, albeit secondary, purpose. Forfeiture advances our Legislatures intent to minimize taxation
by permitting law enforcement agencies, via the sale of property seized, to defray
some of the expense incurred in the battle against drug dealing. It
is these broad remedial characteristics which support . . . [a] determination that
forfeiture actions are civil in nature.
Katner, 655 N.E.2d at 347-48. Procedural mechanisms contained in the forfeiture statute
further indicate our Legislatures intention that such proceedings be civil. For example,
a conviction on the underlying criminal activity is not a prerequisite for forfeiture.
See Katner, 655 N.E.2d at 348. Additionally, the State need only
show that the facts supporting forfeiture exist by a preponderance of the evidence
-- a civil burden of proof. Ind. Code § 34-24-1-4(a); see also
Katner, 655 N.E.2d at 348. The imposition of this civil standard of
proof is strong evidence that the forfeiture statute was not intended to be
a criminal sanction. See Wilcox, 748 N.E.2d at 912.
Having determined that our Legislature intended forfeiture proceedings pursuant to Indiana Code Article
34-24 to be civil in nature, we must next decide whether Willis has
provided the clearest proof that these proceedings are so punitive in form and
effect as to render them criminal despite our Legislatures intent to the contrary.
In making this determination, the factors listed in
Kennedy v. Mendoza-Martinez, 372
U.S. 144 (1963) provide the following useful guideposts: (1) whether the sanction involves
an affirmative disability or restraint; (2) whether it has historically been regarded as
a punishment; (3) whether it comes into play only on a finding of
scienter; (4) whether its operation will promote the traditional aims of punishment --
retribution and deterrence; (5) whether the behavior to which it applies is already
a crime; (6) whether an alternative purpose to which it may be rationally
connected is assignable for it; and (7) whether it appears excessive in relation
to the alternative purpose assigned.
Id. at 168-69; see also Hudson v.
State, 522 U.S. 93, 99-100 (1997). It is important to note that
these factors must be considered in relation to the statute on its face,
and only the clearest proof will suffice to override legislative intent and transform
what has been denominated a civil remedy into a criminal penalty. Hudson,
522 U.S. at 100.
Turning to this second part of our analysis, we find that there is
little evidence, much less the clearest proof, that Indianas forfeiture statute is so
punitive in form and effect as to render it criminal for double jeopardy
Indiana Code Section 34-24-1-1(a)(2), which authorizes the forfeiture of money used as consideration
for the commission of drug and other offenses, provides, in relevant part, as
(a) The following may be seized:
. . . .
(2) All money, negotiable instruments, securities . . . or any property commonly
used as consideration for a violation of IC 35-48-4 . . . :
(A) furnished or intended to be furnished by any person in
exchange for an act that is in violation of a criminal statute;
(B) used to facilitate any violation of a criminal statute; or
(C) traceable as proceeds of the violation of a criminal statute.
Clearly, as can be seen from the language set forth above, our forfeiture
statute does not impose an affirmative disability or restraint. Furthermore, it is
absolutely clear that in rem civil forfeiture has not historically been regarded as
punishment, as we have understood that term under the Double Jeopardy Clause.
Ursery, 518 U.S. at 292. Additionally, the fact that the forfeiture statute
is not totally divorced from criminal law, in that the State must show
some nexus between the property sought in forfeiture and the underlying offense that
is more than incidental or fortuitous, does not render the sanctions contained therein
criminally punitive. See id. It is well settled that the Legislature
may impose both a criminal and civil sanction in respect to the same
act or omission. Id.; see also Wilcox, 748 N.E.2d at 913 (stating
that the fact that certain conduct subject to civil remedies may also violate
criminal law does not render the civil sanctions applicable to that conduct criminally
punitive). We further note that there is no requirement that the State
demonstrate scienter in order to establish that the property is subject to forfeiture,
and that the existence of a scienter requirement is customarily an important element
in distinguishing criminal from civil statutes. Wilcox, 748 N.E.2d at 913.
Finally, while the forfeiture statute may fairly be said to serve the purpose
of deterrence, by making certain criminal endeavors unprofitable, the U.S. Supreme Court has
long held that deterrence may serve civil as well as criminal goals.
Ursery, 518 U.S. 292; see also Wilcox, 748 at 913 (stating that the
mere existence of a deterrent purpose is insufficient to render a sanction criminal,
as deterrence may serve civil as well as criminal goals).
Based on the foregoing, we find that there is little evidence, much less
the clearest proof, suggesting that Indianas
in rem civil forfeiture statute is so
punitive in form and effect as to render it criminal. Accordingly, double
jeopardy did not attach during the forfeiture proceeding and the trial court properly
denied Willis motion to dismiss.
Willis also asserts that there was insufficient evidence to support his conviction.
Willis admits that he tested positive for marijuana on the night he was
arrested. However, Willis claims that the State failed to prove that he
was intoxicated because, unlike for alcohol, there is no statutorily defined level of
ingestion for marijuana indicating intoxication or impairment, and the State failed to produce
any evidence to prove that a blood level of 32 ng/ml is enough
to produce an intoxicating effect. Willis arguments are not well taken.
When reviewing a claim challenging the sufficiency of the evidence, we do not
reweigh the evidence or judge the credibility of witnesses.
Kendall v. State,
790 N.E.2d 112, 128 (Ind. Ct. App. 2003), trans. denied. Rather, we
look to the evidence and the reasonable inferences therefrom that support the conviction.
Id. We will affirm the conviction if there exists evidence of
probative value from which a reasonable jury could find the defendant guilty beyond
a reasonable doubt. Id. at 122-23.
The term intoxicated means under the influence of (1) alcohol, (2) a controlled
substance (as defined in Indiana Code 35-48-1), (3) a drug other than alcohol
or a controlled substance, or (4) a combination of alcohol, controlled substances, or
drugs so that there is an impaired condition of thought and action and
the loss of normal control of a persons faculties to an extent that
endangers a person. Ind. Code § 9-13-2-86. Marijuana is a Schedule
I controlled substance. Ind. Code § 35-48-2-4(d)(14).
On the night of his arrest, police officers observed that Willis had slurred
speech, glassy eyes, poor manual dexterity, and poor balance. Willis also failed
five field sobriety tests and smelled of burnt marijuana. Additionally, Willis admits
on appeal that he tested positive for marijuana at 32ng/ml on the night
he was arrested. This evidence clearly supports the trial courts conclusion that,
on the night Willis was arrested, he was under the influence of a
controlled substance such that he exhibited an impaired condition of thought and action
and the loss of normal control of his faculties to an extent that
endangered a person. In other words, the evidence shows that Willis was
ROBB, J., concurs.
SULLIVAN, J., concurs with opinion.
COURT OF APPEALS OF INDIANA
JOSHUA A. WILLIS, )
vs. ) No. 30A05-0307-CR-348
STATE OF INDIANA, )
SULLIVAN, Judge, concurring
I fully concur as to Part II.
With regard to Part I, I agree that the proceeding for civil forfeiture
of the $1300 found on Williss person at the time of his arrest
for operating a vehicle while intoxicated does not bar the prosecution for the
driving while intoxicated conviction being appealed. I note that although jeopardy had
attached in the forfeiture proceeding, there was no judgment entered. Thus, there
was no determination by the court in the forfeiture proceeding that was akin
either to acquittal or conviction. Therefore, the question before this court and
as treated by the majority opinion, is whether the forfeiture statute denominated as
a civil forfeiture, is in actuality a punishment.
If Willis were being prosecuted criminally for selling controlled substances as alleged by
the State in the forfeiture proceeding, I might well conclude that forfeiture of
the money obtained through the sale or sales was clearly punishment for the
sale or sales themselves. In such instance I might therefore conclude that
a prosecution for selling controlled substances which resulted in the $1300 would be
However, the offense for which Willis was here convicted was for operating
a vehicle while intoxicated. There was no nexus between this offense and
the possession of the money. I do not therefore find any permissible
inference that the forfeiture was punishment for operating the vehicle while intoxicated.
For this reason I concur as to Part I.
See Ind. Code §§ 9-30-5-1 and -3.
We note that the case law counsel relied upon on appeal was
decided pursuant to the Double Jeopardy Clause of the United States Constitution.
Counsel does not advance a separate state constitutional argument. For this reason,
we decide this case based solely upon the federal Double Jeopardy Clause.
See State v. Klein, 702 N.E.2d 771, 773 (Ind. Ct. App. 1998), trans.
In his brief, Willis argues that several cases support an alternative rule
that forfeiture can only be deemed civil for double jeopardy purposes if the
value of the property seized is proportional to the resources expended by the
State in its investigation. In support of this argument, Willis directs our
attention to the following cases:
Hurst, 688 N.E.2d at 404 (stating that
if, after assessing the character and purpose of the sanction in the particular
case, the court determines that the sanction serves the purpose of punishment, then
the court may conclude that the sanction is the equal of criminal punishment
under the protection of the Double Jeopardy Clause); Bryant, 660 N.E.2d at 295-96
(stating that the test for determining whether a forfeiture may be deemed punishment
for double jeopardy purposes turns on a determination of whether the punishment served
the remedial purposes of compensation of the government for its losses); Klein, 702
N.E.2d at 774-75 (holding that the forfeiture of the defendants car was punishment
for double jeopardy purposes because the forfeiture failed to serve any other remedial
goal, such as compensating the government for its losses); Head v. State, 683
N.E.2d 1336, 1338 (Ind. Ct. App. 1997) (stating that the test for determining
whether a civil sanction is a punishment for double jeopardy purposes requires an
inquiry as to whether the sanction serves the remedial purposes of compensating the
government for its losses). This line of cases relies on United States
v. Halper, 490 U.S. 435 (1989), at least in part, and suggests that
forfeiture must be rationally related to expenditures of the State. However, this
divergence from the traditional test was rebuked by the United States Supreme Court
in Hudson v. United States, 522 U.S. 93 (1997). In Hudson, the
Supreme Court acknowledged its deviation in Halper from the traditional test which employed
the Kennedy guideposts and stated that the deviation was ill considered because it:
(1) focused on whether the sanction, regardless of whether it was civil
or criminal, was so grossly disproportionate to the harm caused as to constitute
punishment thereby elevating a single Kennedy factor to dispositive status, and (2) assessed
the character of the actual sanctions imposed rather than evaluating the civil statute
on its face as the traditional test demands. Id. at 494. The
Supreme Court thereafter concluded that the case-by-case analysis employed in Halper was unworkable.
Recently, Indiana Supreme Court Justice Sullivan and Chief Justice Shepard also rejected
the Halper rationally related analysis in their dissent from a denial of a
petition to transfer, see State v. Klein, 719 N.E.2d 386 (Ind. 1999), as
did another panel of this Court in OConner v. State, 789 N.E.2d 504,
509-10 (Ind. Ct. App. 2003), trans. denied. We, too, reject this alternative
method of analysis and proceed with the traditional test set forth in Kennedy
and reaffirmed in Hudson.