King v. State

Cite as 2014 Ark. App. 554

ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-13-1077

Opinion Delivered October 22, 2014
CLYDE RAY KING and EILEEN
MCMURRAY APPEAL FROM THE PULASKI
APPELLANTS COUNTY CIRCUIT COURT,
SECOND DIVISION
V. [NO. CV2012-3795]

STATE OF ARKANSAS HONORABLE CHRISTOPHER
APPELLEE CHARLES PIAZZA, JUDGE

AFFIRMED

BILL H. WALMSLEY, Judge

Appellants Clyde King and Eileen McMurray appeal from the Pulaski County Circuit

Court’s order granting the State’s petition for forfeiture with respect to two vehicles.

Appellants argue that there was insufficient evidence to support forfeiture of either vehicle and

that the trial court failed to exercise its discretion in ordering forfeiture. We affirm.

Arkansas Code Annotated section 5-64-505(a) (Supp. 2011) provides that items subject

to forfeiture include a conveyance, such as a vehicle, that is used or intended for use to

transport or in any manner to facilitate the transportation for the purpose of sale or receipt of

property described in subdivisions (a)(1) or (2) of this section. Subdivision (a)(1) is any

controlled substance that has been manufactured, distributed, dispensed, or acquired in

violation of this chapter.

At the forfeiture proceedings, Investigator Mike Brooks with the North Little Rock
Cite as 2014 Ark. App. 554

Police Department testified that he investigated a complaint that King was selling prescription

medication. Brooks testified that he arranged to meet King for a drug purchase on May 8,

2012, and that King arrived in a BMW that “turned out to be a 2003 BMW that was

subsequently seized.” King sold Brooks 10 oxycodone pills for $300. Brooks testified that at

another drug purchase on May 16, 2012, King arrived in an ‘80s model Cadillac and sold him

10 oxycodone pills for $280. Brooks arranged for a third meeting to buy more oxycodone.

King arrived in the Cadillac and was arrested. Officers found forty-six oxycodone pills and

fourteen methadone pills in King’s possession. In an interview with police, King admitted

selling prescription drugs for a profit. According to King, he used a small number of the pills

and sold the rest. King also told police that he owned the Cadillac and the BMW and that he

allowed his girlfriend, Eileen McMurray, to drive the BMW.

King testified that he is a disabled veteran suffering from PTSD, degenerative-disc

disease, and other ailments. King asserted that he had a valid prescription for oxycodone and

methadone from two doctors. King testified that he was in a vulnerable state when Brooks

contacted him to arrange a drug purchase in that his mother had suffered a stroke and needed

money for medication and admission to a nursing home. After his cars were seized, King

could no longer visit his mother nor could he receive treatment for his service-connected

disabilities. King testified that he bought the BMW with his VA back pay and that he

considered it to be McMurray’s car. He stated that he had driven the BMW at times but that

McMurray knew nothing about the drug transactions.

McMurray testified that she had been friends with King for six or seven years and that

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hearing about King’s arrest “was enough to flip [her] wig.” McMurray stated that King had

bought the BMW for her and that she drove it to her workplace and to church, used it to

make house calls in connection with her job as a counselor, and needed the car to perform

community service. McMurray testified that buying another vehicle would put a financial

strain on her.

Forfeiture is an in rem civil proceeding, independent of any pending criminal charge,

to be decided by a preponderance of the evidence. Ridenhour v. State, 98 Ark. App. 116, 250

S.W.3d 566 (2007). Because the forfeiture statute is penal in nature, and forfeitures are not

favorites of the law, the statute is construed narrowly on appeal. Id. The trial court’s decision

granting forfeiture will not be set aside unless it is clearly erroneous. Id. A trial court’s decision

is clearly erroneous when, although there is evidence to support it, the appellate court, after

reviewing the entire evidence, is left with a definite and firm conviction that a mistake has

been made. Id.

Appellants make several arguments challenging the sufficiency of the evidence. First,

they argue that the drugs in question were legally dispensed to and acquired by King through

a valid prescription from his doctors. Giving effect to the intent of the legislature, we hold

that, although King legally obtained the controlled substances, what he did with them

thereafter was in violation of Ark. Code Ann. § 5-64-308 (Supp. 2011), which provides that,

except when dispensed by a practitioner to an ultimate user, no controlled substance in

Schedule II may be dispensed without a written prescription.

Second, appellants contend that the State offered no evidence that oxycodone and

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methadone are controlled substances.1 The Arkansas Department of Health has a list of

controlled substances on a state website indicating that oxycodone and methadone are

Schedule II controlled substances. List of Controlled Substances For the State of Arkansas,

Ark. Reg. (Oct. 2014) (available at http://www.healthy.arkansas.gov/about ADH/Rules

Regs/controlled_substances_list.pdf. In a recent case, Brown v. State, 2014 Ark. App. 474, this

court cited an Arkansas Supreme Court case, Washington v. State, 319 Ark. 583, 892 S.W.2d

505 (1995), which held that courts may take judicial notice of state-agency regulations

classifying controlled substances into particular schedules. Therefore, the State did not have

to offer proof that oxycodone and methadone are controlled substances.

Third, appellants contend that Brooks failed to adequately identify the BMW. Fewer

than two months had elapsed between the time Brooks saw King driving the BMW and when

the car was seized. Brooks did an ACIC check of the vehicle that was seized, and it was

registered to King or McMurray. Because there was no evidence that King owned a fleet of

BMWs, it would be quite a coincidence for King to have been selling controlled substances

from a different BMW than the one seized.

Appellants’ fourth and fifth arguments will be addressed together because they pertain

to the State’s exhibits, consisting of three lab reports. Appellants argue that the State offered

no testimony regarding the chain of custody for the drugs; Brooks did not bring the drugs to

court; and two of the lab reports do not identify King as the suspect. These arguments are not

challenges to the sufficiency of the evidence. Rather, they involve evidentiary matters that

1
King pleaded guilty to possession of a controlled substance with intent to deliver.

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required a contemporaneous objection to preserve an argument for appeal. See, e.g., Hunter

v. State, 330 Ark. 198, 952 S.W.2d 145 (1997). Appellants raised no objection when Brooks

testified that the lab-report numbers matched in terms of what he submitted for analysis and

what he received back from the lab.2 Therefore, this court will not address these arguments.

Next, appellants argue that forfeiture of both cars was “grossly unfair” to them and that

the judge had discretion, after considering the equities, to permit them to keep the cars.

Appellants cite Bennis v. Michigan, 516 U.S. 442 (1996), for the proposition that a trial judge

has discretion in determining whether to order forfeiture. The case contains a quote by the

Michigan Supreme Court that forfeiture was an equitable action in which a trial judge has

discretion to consider alternatives to abating the entire interest in a vehicle. Id. at 452. The

Bennis court held that a wife was not entitled to assert the innocent-owner defense to contest

the abatement of a car by showing that she did not know her husband would use the car to

violate Michigan’s indecency law. Bennis is inapplicable here.

In their reply brief, appellants cite Ark. Code Ann. § 5-64-505(a)(4)(B) (Supp. 2011)

as an exception to forfeiture; however, because this argument was raised for the first time in

appellants’ reply brief, we do not consider it. Hinton v. State, 2010 Ark. App. 341. Even if this

court addressed the argument, it is unavailing.

In Carter v. State, 2009 Ark. App. 342, 309 S.W.3d 210, this court upheld the

forfeiture of a vehicle titled to a mother or her son because either owner could transfer title

2
The purpose of establishing a chain of custody is to prevent the introduction of
evidence that has been tampered with or is not authentic. Jones v. State, 82 Ark. App. 229, 105
S.W.3d 835 (2003).

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and divest the other’s interest without his or her consent. In Carter, the parties stipulated to

the son’s use of the vehicle in committing burglary and theft, and the son’s actions divested

his mother’s interest in the vehicle “as surely as if he had sold it.” Id. at 3. The same reasoning

applies here. See also Macon v. State, 2011 Ark. App. 371, 309 S.W.3d at 212 (upholding

forfeiture of vehicle titled to mother or son because son’s consent to forfeiture was sufficient

to divest mother’s interest in vehicle). Even though McMurray’s name was on the title of the

BMW and she was unaware that King had used the vehicle to sell controlled substances,

King’s actions were sufficient to divest McMurray’s interest in the BMW under the forfeiture

statute.

Affirmed.

PITTMAN and HIXSON, JJ., agree.

Steven R. Davis, for appellant.

Dustin McDaniel, Att’y Gen., by: Karen Virginia Wallace, Ass’t Att’y Gen., for appellee.

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