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CYNTHIA L. McCULLER ERVIN v. STATE OF MISSISSIPPI

MAY 11, 1983

CYNTHIA L. McCULLER ERVIN
v.
STATE OF MISSISSIPPI, EX REL.



BEFORE BROOM, PRATHER AND ROBERTSON

PRATHER, JUSTICE, FOR THE COURT:

The Mississippi Bureau of Marcotics initiated a civil suit for the forfeiture of an automobile which was used by the owner's husband in violation of state narcotics law. In the trial held before the Circuit Court of DeSoto County, the trial judge ordered the forfeiture of the owner's automobile. On appeal, the owner contends that there was insufficient evidence to establish that she knowingly consented to or gave permission for the illegal use of her car.

Cynthia L. McCuller and Billy R. Ervin married in July of 1980. At the time of their marriage, Mrs. Ervin owned a 1975 Honda Civic automobile which she had purchased previously in 1975. She is now currently enrolled in nurses' training at Methodist Hospital in Memphis, Tennessee.

 Billy Ervin was employed as a carpenter, and at the time of his marriage to Cynthia, he was the owner of a Dodge pickup truck. On some occasions, each party used the vehicle owned by the other. Nevertheless, it was not frequent that Billy would use Cynthia's car, and to the best of Cynthia's knowledge, she never remembered Billy using her car for trips outside of Memphis.

 The proof showed that, prior to their marriage, Billy Ervin had two drug related convictions. One conviction, of which Mrs. Ervin had knowledge, was in 1972 for possession of marijuana. However, Mrs. Ervin denied having any knowledge of the 1975 conviction for another narcotics charge.

 On Sunday, December 28, 1980, Cynthia Ervin was at home ill, taking prescribed medication, and asleep when her husband took her Honda automobile into DeSoto County, Mississippi. On that date, Billy Ervin was arrested in DeSoto County for possession of a controlled substance with intent to deliver. The vehicle was seized by the Mississippi Bureau of Narcotics.

 Both agents acknowledged the Tennessee tag on the Honda car, but neither asked Billy Ervin if he owned the vehicle when it was seized by them. A subsequent search of the records with the Tennessee Motor Vehicle Controller indicated the appellant's registration.

 The Mississippi Bureau of Narcotics filed a petition

 for seizure of the car, and Cynthia Ervin filed her verified answer asserting her right to ownership of the vehicle and further, denying any knowledge or consent to its illegal use.

 At the trial of the case sub judice, two agents for the Bureau of Narcotics established through their testimony that the vehicle in question was used by Billy Ervin in connection with his illegal narcotics activity. *fn1 No other proof was offered by the state except for the basic facts related above.

 II.

 Any automobile which is used to facilitate the illegal transportation, sale, receipt, possession or concealment of certain controlled substances may be forfeited to the Bureau of Narcotics. Miss. Code Ann. 41-29-153 (Supp. 1982). In such cases, forfeiture will be denied only when the automobile was illegally used without the owner's knowledge or consent. Id. Moreover, if the owner files a verified answer denying that his automobile is subject to forfeiture, the pertinent statute then places the burden of proof upon the state to prove the propriety of the forfeiture. Miss. Code Ann. 41-29-179 (Supp. 1982). Otherwise, the petition for forfeiture constitutes prima facie evidence that the property is subject to forfeiture. Id.

 In this case, the owner filed a verified answer, and thereby placed the burden of proof on the state. Unfortunately, the applicable statute does not define the burden of proof. Cf. Cortes v. Rosetti, 38 Misc. 2d 250, 235 N.Y.S. 2d 403 (1962) (New York forfeiture statute requires a showing by" preponderance of the evidence "). A definition of the burden of proof under this statute is necessary because the appellant's sole contention on the appeal is that the evidence presented by the state was insufficient to establish the owner's knowledge of or consent to her husband's illegal activities. The lower court determined that guilty knowledge or consent was established from the following factors: (1) the owner's knowledge of her husband's prior convictions for narcotics offenses; (2) the availability of the owner's car keys; and (3) the previous use of the owner's car by the spouse.

 We think it is our first responsibility to define an appropriate burden of proof *fn2 which takes into consideration both the interest of the state as well as that of the owner. The rationale behind this forfeiture statute is based on the observation that forfeiture of automobiles will hamper narcotics trafficking by striking at its source of mobility. Obviously, imposing a ...


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