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000) v. State ex rel. Mississippi Bureau of Narcotics

Court of Appeals of Mississippi

September 30, 2014

SIX THOUSAND DOLLARS ($6,000), APPELLANT,
v.
STATE OF MISSISSIPPI EX REL. MISSISSIPPI BUREAU OF NARCOTICS, APPELLEE

DATE OF JUDGMENT: 02/13/2013.

Page 8

COURT FROM WHICH APPEALED: JEFFERSON DAVIS COUNTY CIRCUIT COURT. TRIAL JUDGE: HON. ANTHONY ALAN MOZINGO. TRIAL COURT DISPOSITION: CURRENCY FORFEITED.

FOR APPELLANT: THOMAS P. WELCH JR.

FOR APPELLEE: JACKIE RAY BOST II.

BEFORE LEE, C.J., ISHEE AND JAMES, JJ. LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

OPINION

Page 9

NATURE OF THE CASE: CIVIL - OTHER

JAMES, J.

[¶1] Anthony Brown filed a petition in the Circuit Court of Jefferson Davis County contesting the forfeiture of six thousand dollars ($6,000)[1] seized by the Mississippi Bureau of Narcotics (MBN). Following a bench trial, the trial court entered an order of forfeiture finding that the currency was used, or was intended for use, in violation of Mississippi's Uniform Controlled Substances Law, and that Brown failed to prove innocent ownership of the currency. Brown appeals. Finding no error, we affirm.

FACTS

[¶2] On January 22, 2012, John Norman Cole was arrested after he failed to stop at a driver's license checkpoint that was being conducted by law enforcement officers at the intersection of Highway 84 and Clem Road in Jefferson Davis County, Mississippi. After a short police pursuit, Cole crashed his Toyota Camry into the rear of a trailer approximately five miles from the checkpoint. Cole fled the accident scene on foot, but was apprehended by Mississippi Highway Safety Patrol Trooper Stephen Smith some two hundred yards from the crash site. Upon apprehending

Page 10

Cole, Trooper Smith discovered a roll of money, secured by a rubber band, and a clear plastic bag containing a white powdery substance on the ground in the immediate area of Cole's arrest. It was later determined that the roll of money contained $6,000, and that the white powdery substance was cocaine. Trooper Smith then canvassed the area between the vehicle and the place where Cole was apprehended and found a plastic bag containing a green leafy substance, later determined to be marijuana. Due to the presence of the suspected narcotics and associated currency, MBN Agent Heather Sullivan was called to the scene. Pursuant to the provisions of the Uniform Controlled Substances Law, Agent Sullivan seized the currency and MBN sought forfeiture of the currency.

[¶3] On July 10, 2012, Brown filed a petition to contest the forfeiture of the currency, claiming an ownership interest in the currency and asserting that the currency was illegally seized by MBN. MBN filed a response and counterclaim for forfeiture. On January 2, 2013, MBN responded to Brown's discovery requests. In its responses, MBN identified Agent Sullivan and Keith McMahan, a forensic scientist with the Mississippi Crime Laboratory, as witnesses; stated that MBN did not anticipate designating an expert witness " at this time" ; and produced a certified crime-lab report from the Mississippi Crime Laboratory signed by McMahan. The report reflected the results of a drug analysis conducted by McMahan, which confirmed that the substances seized from Cole were in fact illegal narcotics.

[¶4] According to Brown, on January 14, 2013, the date of trial, MBN requested, and was granted, a continuance due to the unavailability of an expert witness.[2] The trial was reset for February 4, 2013.[3] On January 22, 2013, thirteen days before trial, MBN filed a notice designating Agent Sullivan and McMahan as expert witnesses. Trial was held on February 4, 2013. Brown objected to the expert testimony of Agent Sullivan and McMahan, asserting that the expert witnesses were not timely designated. The trial court overruled Brown's objection.

[¶5] Brown testified that he owned the currency seized from Cole. Brown testified that the source of the currency was a settlement agreement reached with his employer for a back injury Brown sustained in 2009 while working in Vicksburg, Mississippi. In June 2012, Brown's employer's insurance carrier issued two settlement checks, totaling approximately $50,000 to Brown. The checks were issued by Bank of America. According to Brown, upon receiving the checks, he personally traveled from his home in Brookhaven, Mississippi, to the Bank of America branch in Pensacola, Florida, in order to cash the checks.[4] Brown testified that, upon returning to Brookhaven, he kept the settlement money in a safe inside his home. Shortly thereafter, Brown traveled to Slidell,

Page 11

Louisiana, to purchase a vehicle that he found on the internet.

[¶6] Brown testified that he found another vehicle, a Monte Carlo SS, on the internet for sale in Hattiesburg, Mississippi. After one telephone conversation with the owner of the Monte Carlo, Brown decided to purchase the vehicle without ever seeing the vehicle. On June 22, 2012, Brown gave Cole $6,000 so that Cole could travel to Hattiesburg to deliver the money to Brown's cousin so that the cousin could purchase the vehicle for him. However, Brown testified that after giving Cole the money, his cousin contacted him and told him that he inspected the vehicle, and advised Brown against the purchase. Brown claimed he then called Cole and told him to bring the money back to him. According to Brown, Cole was en route to Brookhaven to return the money when he was arrested.

[¶7] Trooper Smith testified to his role in Cole's arrest and the recovery of the illegal narcotics and the currency. Agent Sullivan testified that, based on her training and experience, the currency, which was " rolled up in a ball in a rubber and . . . and located in close proximity to drug evidence," was " drug money." Agent Sullivan further testified that she interviewed Cole on two occasions following his arrest and, on both occasions, Cole denied having any knowledge about the money. Finally, McMahan testified to the findings of the drug analysis he performed on the evidence recovered from Cole. McMahan testified that submission one contained 1.7 grams of marijuana and that submission two contained 21.4 grams of cocaine.

[¶8] At the conclusion of trial, the trial court entered an order of forfeiture, finding that MBN had proved, by a preponderance of the evidence, that the currency in question was used, or intended for use, in violation of the Uniform Controlled Substances Law and that Brown's assertion that he was an innocent owner of the currency lacked credibility. Brown filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial, which the trial court denied by an order entered May 11, 2013. Brown appeals, raising the following issues: (1) whether the trial court abused its discretion ...


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