This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-60

 

Richard J. Jacobson,

Appellant,

 

vs.

 

$55,900 in U.S. Currency,

Respondent.

 

Filed January 24, 2006

Affirmed

Hudson, Judge

 

Dakota County District Court

File No. C4-04-6891

 

Randall D.B. Tigue, Randall Tigue Law Office, P.A., Suite 100, Minnehaha Professional Building, 3960 Minnehaha Avenue South, Minneapolis, Minnesota 55406 (for appellant)

 

James C. Backstrom, Dakota County Attorney, Margaret M. Horsch, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, Minnesota 55033 (for respondent)

 

            Considered and decided by Shumaker, Presiding Judge; Lansing, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

Appellant Richard Jacobson challenges a judicial forfeiture ruling that all but $1,000 of $55,900 in currency found in an apartment owned by appellant was subject to forfeiture.  Appellant argues that: (1) the district court erred by finding that he had not rebutted the statutory presumption arising from the discovery of the money in close proximity to drugs; (2) the district court erred by admitting canine sniff evidence to prove the connection between the drugs and the currency; and (3) the evidence was insufficient to support forfeiture by clear and convincing evidence.  Because the district court found that appellant had failed to rebut the statutory presumption, except as to the $1,000 bill, and because there is reasonable evidence in the record to support the district court’s findings, we affirm.

FACTS

 

Between 1992 and 1999, appellant resided in the small three-room apartment above Jake’s Bar, a property in Dakota County which appellant owned.  After appellant moved out of the apartment, he rented the apartment to other people on two separate occasions.  First, in late 2002, appellant rented the apartment to Bradley McBride for approximately three months.  Then, in the summer of 2003, appellant rented the apartment to Jeffrey Carlisle.  In August 2003, the Dakota County Drug Task Force executed a valid search warrant on the property, based on information that Carlisle was selling drugs at that premises.  As a part of their search, officers seized numerous items.  In a closet off the apartment foyer, officers found eight pounds of marijuana.  In the kitchen, officers found $14,880 in United States currency hidden in the microwave, and in the bedroom, officers found a three-foot-by-three-foot movable safe, which the occupant used as a nightstand beside the bed.  Officers brought in a drug-detecting canine to search the apartment.  The canine alerted to the safe and to the $55,900 when officers removed the currency from the safe.  In total, the bedroom safe contained: (1) $55,900 in United States currency, which included one $1,000 bill encased in a transparent plastic cover; and (2) appellant’s expired Arizona driver’s license.  Jeffrey Carlisle pleaded guilty to selling marijuana from the premises.  The state did not charge appellant with any crime related to the sale of drugs.

The state served both Carlisle and appellant with a notice of seizure and intent to forfeit the defendant currency.  Appellant filed a timely complaint and demand for judicial determination pursuant to Minn. Stat. § 609.5314, alleging that the $55,900 was his and that it dated back to the time he lived in the apartment.

In August 2004, the district court tried the matter without a jury.  At trial, the state respondent called two witnesses: Officer Grant, who had executed the search warrant, and Officer Frisby, the handler of the drug-detecting canine.  The state also entered into evidence appellant’s tax returns from 1998, 1999, and 2000.

At trial, appellant called four witnesses.  Three witnesses testified that they had seen appellant going into the safe on numerous occasions when appellant had occupied the apartment, and each had observed that appellant was the owner of a rare $1,000 bill.  Two witnesses, who had later rented the apartment from appellant, testified that he had never disclosed to them the combination of the safe.  Further, Carlisle testified that only the $14,880 found in the microwave was his drug money, and that he was unaware the bedroom safe had any money in it.

Appellant testified that the $55,900 was his money, which he earned while operating Jake’s bar.  He testified that he left the money in the safe even after he moved out of the apartment in 1999 because he felt it was safe to keep it in a building which had a security system.  Appellant also testified that he had never given the combination to the safe to anyone else, had not opened the safe since late in 1999 or early 2000, and had since forgotten the combination.

After hearing all of the testimony, the district court found that appellant had not rebutted the state’s statutory presumption arising from the proximity of the currency to controlled substances, except as to the $1,000 bill.  The district court issued a forfeiture order, returning the $1,000 bill to appellant and forfeiting the remainder of the $55,900.

Appellant moved for amended findings, arguing that: (1) the canine sniff evidence was irrelevant and prejudicial; (2) his tax returns supported his ability to accumulate $55,900; (3) he had met his evidentiary burden based on Carlisle’s testimony that the money was not his; and (4) the state failed to prove a basis for forfeiture by clear and convincing evidence.  The court denied appellant’s motion for amended findings.  This appeal follows.

D E C I S I O N

            The framework for forfeitures of property associated with or connected to controlled substances is set out in Minn. Stat. §§ 609.531–.5318 (2004).  The purposes of forfeitures are to: (1) enforce law; (2) deter crime; (3) reduce economic incentive to engage in the drug trade; (4) increase pecuniary loss as a result of criminal activity; and (5) divert the unlawful property to law enforcement purposes.  Minn. Stat. § 609.531, subd. 1a (2004); Blanche v. 1995 Pontiac Grand Prix, 599 N.W.2d 161, 164–65 (Minn. 1999).  Sections 609.531 to 609.5318 must be liberally construed to carry out these purposes.  Minn. Stat. § 609.531, subd. 1a.

            A forfeiture proceeding is a civil in rem action, and the agency handling the forfeiture has the benefit of a statutory presumption if the seized item is found in proximity to controlled substances or the proceeds of a crime.  Minn. Stat. §§ 609.531, subd. 6a(a), .5314, subd. 1(a) (2004).  Officers discovered the $55,900 in a safe located in the bedroom of an apartment from which drugs were admittedly being dealt.  The police found eight pounds of marijuana on an entryway shelf in the small apartment dwelling.  A trained canine smelled the presence of controlled substances on the safe and later on the currency removed from the safe.  It reasonably appeared that the currency was related to or was, in fact, the proceeds from drug trafficking.  Therefore, title vested in the state when the currency was found.  Minn. Stat. § 609.531, subd. 5 (2004).  The state then had the benefit of the statutory presumption under Minn. Stat. § 609.5314, subd. 1(a).

The person claiming ownership of the item bears the initial burden of rebutting this presumption.  Minn. Stat. § 609.5314, subd. 1(b).  Only if the claimant successfully rebuts the presumption does the burden revert back to the state to prove the forfeiture by clear and convincing evidence.  Minn. Stat. § 609.531, subd. 6a(a).

I

As a threshold matter, the state argues that because appellant did not make a motion for a new trial, the scope of the review in this matter should be limited to “whether the evidence sustains the findings of fact and whether such findings sustain the conclusions of law and the judgment.”  Gruenhagen v. Larson,310 Minn. 454, 458, 246 N.W.2d 565, 569 (1976).

A motion for a new trial is not a prerequisite for appellate review of substantive questions of law when a genuine issue of law was properly raised in the district court.  Alpha Real Estate Co. of Rochester v. Delta Dental, 664 N.W.2d 303, 310 (Minn. 2003).  But, matters such as trial procedure, evidentiary rulings, and jury instructions do require a motion for new trial before they are subject to appellate review.  Sauter v. Wasemiller, 389 N.W.2d 200, 201 (Minn. 1986).

Appellant argues that the district court erred regarding: (1) the sufficiency of the evidence to overcome the presumption; (2) the admission and weight given to the canine sniff evidence; and (3) assuming the burden shifted, respondent’s satisfaction of the clear-and-convincing standard.  The district court’s determination of whether the dog sniff evidence was admissible is an evidentiary ruling and, therefore, not reviewable under Sauter without a motion for new trial.

But appellant’s arguments that the factfinder gave undue weight to the canine sniff evidence and that the evidence did not meet the clear-and-convincing standard are effectively subparts of appellant’s sufficiency-of-the-evidence argument.  These are questions of law that were raised and briefed by appellant to the district court in appellant’s motion for amended findings, and they are subject to appellate review even without a motion for a new trial.

II

 

            Appellant argues that there was sufficient evidence at trial to rebut the statutory presumption, thus shifting the burden to the state to prove forfeitability.  In challenging the sufficiency of the evidence, appellant argues that: (1) the district court gave undue weight to the canine sniff evidence; and (2) the district court erroneously considered the credibility of appellant’s witnesses.

A district court’s “[f]indings of fact, whether based on oral or documentary evidence, 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.”  Minn. R. Civ. P. 52.01.  In applying rule 52.01, “we view the record in the light most favorable to the judgment of the district court.”  Rogers v. Moore, 603 N.W.2d 650, 656 (Minn. 1999).  If there is reasonable evidence to support the district court’s findings, we will not disturb them.  Id.  Further, this court will not reverse the district court’s judgment merely because we view the evidence differently.  Id.; see also Vangsness v. Vangsness, 607 N.W.2d 468, 474 (Minn. App. 2000) (“That the record may support findings other than those made by the [district] court does not show that the court’s findings are defective”).  Rather, the district court’s factual findings must be clearly erroneous or “manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole” to warrant reversal.  Rogers, 603 N.W.2d at 656 (quotation omitted). 

            In order to rebut the presumption of forfeitability, appellant had the burden of proving by a preponderance of the evidence that the currency was his.  In support of that proposition, Carlisle—who had pleaded guilty to dealing drugs out of the apartment—testified that the money in the microwave was his drug money, but that the currency in the safe was not his.  Appellant testified that the safe was his, and the currency found in the safe was also his.  Appellant’s testimony regarding the $1,000 bill was supported by testimony from three other witnesses.

In determining that appellant had not proved ownership of currency—other than the $1,000 bill—the district court considered both canine sniff evidence and the credibility of the witnesses.  In support of its holding, the district court found that: (1) appellant’s testimony that he simply left the safe behind and never went back for it in three years was not believable; (2) currency giving off a drug odor that a canine would detect was much more likely to have been exposed to drugs recently, rather than three years prior; (3) income reported on appellant’s tax returns did not leave the impression of someone who had accumulated enough money to have $55,900 cash laying around in a safe for three years; (4) appellant proved that he regularly used the safe when he occupied the apartment and that he owned a rare $1,000 bill, but he failed to prove that the currency found in the safe three years later was his; (5) appellant’s testimony that he alone knew the combination to the safe and had forgotten it was not credible; and (6) Carlisle’s testimony that he never attempted to get into the safe, which was being used as a nightstand beside the bed, was not credible.

Appellant argues that the district court gave undue weight to the canine sniff evidence in determining that the currency was connected to the sale of controlled substances.  Citing numerous criminal drug cases, appellant argues that canine sniff evidence is limited to proving probable cause, and asserts that it cannot be used as substantive evidence of a connection between controlled substances and currency.  We find no merit to appellant’s argument.  There is no support—either in appellant’s cited cases or elsewhere—for appellant’s proposition that canine sniff evidence is limited to proving probable cause, and we decline to adopt such a proposition here.

            In addition, appellant argues for the first time on appeal that the district court should not have considered the credibility of the witnesses during appellant’s rebuttal of the statutory presumption.  Appellant relies exclusively on State v. Slaughter, 691 N.W.2d 70 (Minn. 2005)—a criminal case decided after the district court’s decision in this case—to support his argument that the district court must “compartmentalize” its decision-making process.  Specifically, appellant contends that the district court should have reserved credibility and weight-of-the-evidence determinations until the end of the trial and only considered whether or not appellant had facially overcome the statutory presumption.  This court will generally not consider matters not argued and considered in the district court, and we decline to do so here.[1]  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).

            Finally, appellant argues that the record supports findings other than those made by the district court.  On review, we look at the evidence in the light most favorable to the district court’s judgment, and we affirm if there is reasonable evidence to support the district court’s findings.  Rogers, 603 N.W.2d at 656.  The amount of currency in the safe, the portability of the safe, the length of time appellant claims he had neglected the currency, appellant’s lack of concern for the currency until after it had been seized, appellant’s tax filings, the dog sniff indicating that the currency was connected to controlled substances, and the district court’s credibility assessments of the witnesses all support the district court’s judgment.  Based on this record, we conclude that the district court did not err in its determination that appellant had not rebutted the statutory presumption of forfeitability.

            It is only when the claimant successfully rebuts the presumption that the burden reverts back to the state to prove the forfeiture by clear and convincing evidence.  Minn. Stat. § 609.531, subd. 6a(a) (2004).  Because we conclude that the district court did not err in finding appellant had not overcome the statutory presumption, and because failure to overcome the presumption effectively ends the district court’s analysis, we conclude that the district court did not err by not addressing whether the evidence met the more stringent clear-and-convincing standard.

            Affirmed.