This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).







Patrick Theiler,





Chevy Avalanche, MN License #GWG 178, VIN #3GNGK23G82G162395,



Filed July 31, 2007


Ross, Judge


Freeborn County District Court

File No. 24-C9-04-001352



Kassius O. Benson, Law Offices of Kassius O. Benson, P.A., 2915 Wayzata Boulevard South, Suite 101, Minneapolis, MN 55405 (for appellant)


Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


Craig S. Nelson, Freeborn County Attorney, Erin M. O’Brien, Assistant County Attorney, 411 South Broadway, Albert Lea, MN 56007 (for respondent)


Considered and decided by Peterson, Presiding Judge; Ross, Judge; and Harten, Judge.*


U N P U B L I S H E D   O P I N I O N

ROSS, Judge

This appeal arises from a judgment of forfeiture of a vehicle seized pursuant to the drug-forfeiture statute.  Patrick Theiler owned the seized vehicle but was not present when state police stopped it and discovered drugs inside a hidden panel.  Theiler argues that he rebutted the statutory presumption that his car is subject to administrative forfeiture by establishing the innocent-owner defense.  Because Theiler conceded that his car contained $100 or more in illegal drugs when police stopped it, he failed to rebut the evidentiary presumption of forfeiture.  And because he also failed to produce objectively credible evidence to carry his burden of proof to support the innocent-owner defense, we affirm.


A Minnesota trooper stopped Patrick Theiler’s 2002 Chevrolet Avalanche in September 2004, suspecting the windows were illegally tinted.  Theiler was not in the Avalanche.  His “good friend,” Anthony Skrivanek, was driving the vehicle.  Theiler occasionally allowed Skrivanek to borrow the Avalanche for up to two weeks even though Skrivanek owned other vehicles.  At the time of the stop, Skrivanek had possessed the car for at least two weeks, though he claimed that he borrowed it only to go camping for the weekend and “for moving things.”  Skrivanek later testified that he was on his way to a concert when the police stopped him, but he could not recall who was performing.

The trooper determined that the window tint exceeded the maximum shading permitted.  He also noticed that Skrivanek and his passenger had bloodshot eyes and that a strong odor of marijuana emanated from within the vehicle.  The trooper saw marijuana on the console and fragments of green leaves on Skrivanek’s and the passenger’s clothes, which they began brushing off after the trooper mentioned it.  The trooper also perceived that the Avalanche had a lived-in appearance.  Skrivanek admitted that he had a “quarter” of marijuana in a backpack.  A drug-detection dog alerted near the driver’s-side door to indicate the presence of illegal drugs.

The troopers conducted a search.  They removed the backpack, which contained approximately 32 grams of high-quality marijuana.  They also discovered hallucinogenic mushrooms inside the center console.  One trooper, experienced in vehicular drug concealment, noticed that the passenger’s-side air vent appeared to have been altered.  He discovered that the air bag had been replaced with an electronically operated drawer.  Two buttons near the driver’s-side fuse panel opened and closed the drawer.  Inside the drawer, troopers found hashish, five vials containing hashish oil, and 43 additional grams of marijuana that alone was estimated to be worth $2,000.  Troopers also found several documents bearing Skrivanek’s name but a proof-of-insurance card bearing Theiler’s name.

The police arrested Skrivanek and his passenger, seized the car, and served Skrivanek with notice of seizure and intent to seek administrative forfeiture of the car.  Police also served Theiler with a seizure notice, and he demanded a judicial determination of forfeiture.

At the forfeiture trial in May 2006, Theiler testified that he had occasionally worked part-time at a friend’s restaurant but that his primary income was poker winnings, estimating that he garnered more than $10,000 playing poker in 2004.  He lived with his parents.  He testified that he purchased the Avalanche from the original owners in April 2004 for $27,000 cash.  Theiler claimed that he bought the car with gambling proceeds, but he could not document his earnings and they were not traceable.  Skrivanek was with him when he bought the car.  When the police stopped and seized it five months later, its odometer indicated 65,471 miles, almost 22,800 more than when Theiler bought the car.  Theiler did not obtain a Minnesota driver’s license until six months after police seized his car, and although he once lived in Montana, he did not know whether his Montana driver’s license was valid from the time he bought the car until its seizure.

The Avalanche’s original owners testified that they purchased it in standard factory condition and made no modifications.  Skrivanek testified that he paid an unidentified “random guy” to remove the air bag and install the electronic drawer in the week before the stop, but he could not recall how much he paid.  He claimed that he had not told Theiler about the secret drawer and that he was undecided whether he would.  Skrivanek also alleged that he had the drawer installed to transport drugs only during that weekend.  Despite claiming sole responsibility for having the drawer installed in the car and for the drugs discovered in it, Skrivanek testified that he was unaware that the vials contained hashish oil.

Theiler denied modifying the car beyond adding CD and DVD players, or authorizing Skrivanek to do so.  Theiler and Skrivanek both denied having the windows illegally tinted, but Theiler acknowledged that the car had legal, factory tinting when he purchased it.

Following trial, the district court found that Theiler provided no credible evidence to support his asserted innocent-owner defense, and it entered judgment of forfeiture.  This appeal follows.


Theiler challenges the forfeiture of his vehicle.  He claims that he rebutted the statutory presumption of administrative forfeiture by asserting the innocent-owner defense.  He also contends that the state failed to show by clear and convincing evidence that he committed any unlawful act to justify forfeiture.  But he appears to confuse the concept of rebutting the presumption of forfeiture with the innocent-owner affirmative defense, and he also fails to account for the district court’s finding that the testimony supporting his innocent-owner defense was simply not credible.  We affirm the forfeiture.

All property “that has been used, or is intended for use, or has in any way facilitated in whole or in part,” the delivering, transporting, or exchanging of controlled substances is subject to forfeiture.  Minn. Stat. § 609.5311, subd. 2(a) (Supp. 2005).  A motor vehicle “containing controlled substances with a retail value of $100 or more,” when the sale or possession of the controlled substances would constitute a felony, is presumed to be subject to forfeiture.  Id. § 609.5314, subd. 1(a)(2) (Supp. 2005).  The claimant of the property bears the burden to rebut the presumption.  Id., subd. 1(b) (Supp. 2005).  The presumption of administrative forfeiture aids the state only in meeting “its initial burden to produce evidence in a judicial proceeding commenced by a claimant under Minn. Stat. § 609.5314, subd. 3.”  Rife v. One 1987 Chevrolet Cavalier, 485 N.W.2d 318, 322 (Minn. App. 1992), review denied (Minn. June 30, 1992).  The state “otherwise bears the burden of proving the act or omission giving rise to the forfeiture by clear and convincing evidence.”  Minn. Stat. § 609.531, subd. 6a (2004).

Although the forfeiture statute does not specify the weight to be given to the presumption of forfeiture, the supreme court recently construed the statute to require the claimant to bear the burden of production rather than persuasion.  Jacobson v. $55,900 in U.S. Currency, 728 N.W.2d 510, 519-20 (Minn. 2007).  A claimant therefore rebuts the statutory presumption of forfeiture by producing sufficient evidence to justify a finding that he owns the subject property and that “the property is not connected to drug trafficking.”  Id. at 522.

But rebutting the presumption of forfeiture should not be confused with the separate concept of the innocent-owner defense.  Property is subject to forfeiture “only if its owner was privy to the [unlawful] use or intended use . . . or the unlawful use or intended use of the property otherwise occurred with the owner’s knowledge or consent.”  Minn. Stat. § 609.5311, subd. 3(d) (Supp. 2005). As the title of this affirmative defense implies, the owner may avoid forfeiture by proving that he was unaware of the property’s illegal use.  Jacobson, 728 N.W.2d at 520.  And unlike the showing necessary to rebut the presumption of forfeiture, the innocent-owner defense “is an affirmative defense which must be proven by the claimant.”  Blanche v. 1995 Pontiac Grand Prix, 599 N.W.2d 161, 167 (Minn. 1999).  The claimant must establish the innocent-owner defense by a preponderance of the evidence.  Jacobson, 728 N.W.2d at 520-21 & n.6.

Theiler contends that his and Skrivanek’s testimony was sufficient to rebut the presumption that the car was subject to forfeiture.  But he concedes that the car contained at least $100 in controlled substances and offered no evidence that the car was not connected to drug trafficking.  Rather than to address the elements necessary to rebut the presumption, Theiler’s testimony represented almost exclusively his efforts to prove his asserted affirmative defense as an innocent owner.  And even if Theiler had produced sufficient evidence to rebut the presumption, this alone would not defeat the forfeiture, because the state could nevertheless prevail if it proves that forfeiture was appropriate.  See Jacobson, 728 N.W.2d at 522 (explaining that once claimant produces sufficient evidence to rebut presumption, state may obtain forfeiture with clear and convincing evidence that property is connected to drug trafficking).  The state did not need to overcome any rebuttal because, as the district court correctly determined, Theiler failed to rebut the presumption of forfeiture.

Theiler also failed to prove his affirmative defense that he was an innocent owner of the car.  The district court found Theiler’s and Skrivanek’s testimony concerning Theiler’s lack of awareness of drug trafficking to be incredible.  Theiler’s purported ignorance that his friend Skrivanek had installed the drug drawer is facially suspect.  The district court also doubted Theiler’s claim that he lent the car to Skrivanek without Theiler’s suspicion, and it doubted Skrivanek’s claimed lack of memory concerning memorable factual events.  The court had significant reason to doubt the notion that Skrivanek was solely responsible for the drugs and the trafficking-related modifications to the car.  Given the deference that we afford a district court’s credibility determinations, the finding that Theiler failed to prove that he was an innocent owner is not clear error.  See Rife, 485 N.W.2d at 321 (noting that appellate court gives due regard to district court’s opportunity to judge witness credibility).

Theiler also argues that the state did not prove by clear and convincing evidence that he knew about the drug trafficking.  The argument overlooks that Theiler failed to rebut the presumption of forfeiture or to prove that he is an innocent owner.  And the argument is simply unpersuasive on this record.  A person’s knowledge is seldom susceptible to proof by direct evidence.  The circumstantial evidence supports the finding that Theiler knew of the unlawful use of his car: he bought the car for $27,000 cash with untraceable funds; he willingly lent his first and only car to his car-owning friend for weeks at a time; this friend, Skrivanek, deals drugs; Skrivanek was with Theiler when Theiler bought the car; Theiler and Skrivanek offered incredible testimony; someone logged nearly 23,000 miles on the car during the five months that Theiler owned it; while in Theiler’s ownership, the car was modified for concealment and secrecy.  We hold that the district court did not err by finding that the Avalanche is subject to forfeiture.


*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.