State v. Miller , 429 P.3d 556 ( 2018 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, ex rel. MARK BRNOVICH, Attorney General,
Plaintiffs/Appellees,
v.
WILLIAM EARL MILLER, SR., Defendant/Appellant.
No. 1 CA-CV 17-0304
FILED 8-16-2018
Appeal from the Superior Court in Maricopa County
No. CV2015-006886
The Honorable Christopher T. Whitten, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Eric S. Rothblum, Kenneth R. Hughes
Counsel for Plaintiffs/Appellees
William Earl Miller, Sr., Phoenix
Defendant/Appellant
OPINION
Presiding Judge Lawrence F. Winthrop delivered the opinion of the Court,
in which Judge Jennifer B. Campbell and Judge Paul J. McMurdie joined.
STATE v. MILLER
Opinion of the Court
W I N T H R O P, Presiding Judge:
¶1 William Earl Miller, Sr., appeals the in personam judgment
entered against him for $482,400 and the forfeiture of $40,218.33 in seized
property to the State of Arizona. In this opinion, we hold that, unlike a
search warrant, which must be executed within five days pursuant to
Arizona Revised Statutes (“A.R.S.”) section 13-3918(A), a seizure warrant is
not subject to the same statutory five-day requirement. Accordingly, and
because Miller’s other challenges to the judgment are unavailing, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 On April 17, 2015, the State obtained a seizure warrant
authorizing in rem and in personam seizure of property from Miller. The
seizure warrant was based on a judicial finding of probable cause that
Miller engaged in racketeering activity. Under the authority of the seizure
warrant, the State seized $28,000 from a safe deposit box leased to Miller,
as well as $12,218.33 from Miller’s bank and prison inmate trust accounts.
¶3 The State initiated forfeiture proceedings, and the case
proceeded to a bench trial. The trial court found by a preponderance of the
evidence that Miller “possessed, solicited to possess, attempted to possess,
conspired to possess, conspired and participated in the transfer and sale of,
and conspired and participated in the transaction of proceeds of the sale of
prohibited drugs” in violation of A.R.S. §§ 13-2312, -3408, and -2317 for
financial gain. Thus, the court forfeited the seized money to the State, and
also entered an in personam racketeering judgment against Miller in the
amount of $482,400.
¶4 Miller timely appealed. We have jurisdiction pursuant to
A.R.S. § 12-2101(A)(1).
ANALYSIS
¶5 Although his argument is unclear, Miller appears to argue in
his opening brief that the judgment does not contain a probable cause
determination pursuant to A.R.S. § 13-4305(E). In violation of Arizona Rule
of Civil Appellate Procedure (“ARCAP”) 13(d), Miller failed to refer to the
record where he raised this argument for the trial court’s consideration.1
1 Miller does not argue that he raised the issue at trial, and he has
failed to provide the trial transcript. To the extent the argument was raised
at trial, “[a] party is responsible for making certain the record on appeal
2
STATE v. MILLER
Opinion of the Court
Our independent review of the record confirms the issue was not raised
below. “Matters not presented to the trial court cannot for the first time be
raised on appeal.” Brown Wholesale Elec. Co. v. Safeco Ins. Co. of Am., 135
Ariz. 154, 158 (App. 1982). Thus, the argument that the trial court needed
to make a probable cause determination in the judgment is waived. See
Regal Homes, Inc. v. CNA Ins., 217 Ariz. 159, 171, ¶ 52 (App. 2007) (holding
the appellate court will not consider a question not raised in the lower court
(citing J.H. Mulrein Plumbing Supply Co. v. Walsh, 26 Ariz. 152, 161 (1924);
Allstate Indem. Co. v. Ridgely, 214 Ariz. 440, 442, ¶ 7 (App. 2007))). Moreover,
even assuming Miller made the probable cause argument and thus
preserved the issue for appeal, he fails to recognize that a judicial
determination of probable cause was made before issuance of the seizure
warrant.2
¶6 Miller next contends seizures of funds from his inmate trust
account on July 22, 2016, and January 30, 2017—both of which occurred
more than five days after issuance of the seizure warrant—violated A.R.S.
§ 13-3918, which, he argues, rendered the seizure warrant expired and
contains all transcripts or other documents necessary for us to consider the
issues raised on appeal.” Baker v. Baker, 183 Ariz. 70, 73 (App. 1995) (citing
ARCAP 11). When an appellant fails to include all transcripts or other
documents, we assume the missing portions of the record support the trial
court’s findings and ruling. Id.; accord Kohler v. Kohler, 211 Ariz. 106, 108
n.1, ¶ 8 (App. 2005).
2 Further, Miller appears to be conflating in rem and in personam
seizure. The judgment against him is in personam. In an in rem forfeiture
action, only property that is derived from or has facilitated a crime is
forfeitable. See A.R.S. § 13-2314(G). In an in personam action, however, any
property belonging to the racketeer, i.e. Miller, is subject to forfeiture to the
extent of his monetary liability for the racketeering conduct, even if the
property has no nexus to the underlying crime. See A.R.S. § 13-
2314(D)(6)(d). In this case, the seizure warrant was based on probable cause
to believe that up to $160,800 was subject to in personam forfeiture. After
the bench trial, the court determined that Miller “is personally (in personam)
liable to the State for Racketeering in the amount of $160,800.” The court
then trebled the damages pursuant to A.R.S. § 13-2314(D)(4), and awarded
the final judgment amount of $482,400 in favor of the State and against
Miller in personam.
3
STATE v. MILLER
Opinion of the Court
void.3 “We apply a de novo standard of review to issues of statutory
interpretation and application.” Obregon v. Indus. Comm’n, 217 Ariz. 612,
614, ¶ 9 (App. 2008) (citing Naslund v. Indus. Comm’n, 210 Ariz. 262, 264,
¶ 8 (App. 2005); O’Connor v. Hyatt, 207 Ariz. 409, 411, ¶ 4 (App. 2004)).
¶7 Section 13-3918(A) states that “[a] search warrant shall be
executed within five calendar days from its issuance . . . . Upon expiration
of the five[-]day period, the warrant is void unless the time is extended by
a magistrate.” (Emphasis added.) Section 13-3918 specifically refers to
search warrants. In this case, the warrant at issue is a seizure warrant,
making the five-day time limit under A.R.S. § 13-3918 inapplicable. Miller
did not cite, and we have not found, any statute or other authority that
requires a seizure warrant to be executed within five days of its issuance.
Cf. A.R.S. §§ 13-2314(C), -4310(A), -4305(A), -4312(C). The State’s seizures
of Miller’s property more than five days after issuance of the seizure
warrant did not violate A.R.S. § 13-3918.
¶8 Finally, Miller argues that failure to serve him with police
reports used at trial violated the due process clause of the Fourteenth
Amendment. The trial court’s exclusion or admission of evidence will not
be disturbed on appeal absent an abuse of discretion and resulting
prejudice. See Selby v. Savard, 134 Ariz. 222, 227 (1982); Lay v. Mesa, 168 Ariz.
552, 554 (App. 1991).
¶9 The State filed a motion in limine seeking to admit (1) the
police reports describing Miller’s arrest and associated police investigation
and (2) the crime lab report confirming that four grams of crack cocaine
were found at Miller’s residence during his arrest. The trial court issued an
advisory ruling granting the motion, pending any objections raised by
Miller at trial. At trial, discussion was held regarding the State’s motion,
and the police reports were ultimately admitted. As noted above, Miller
failed to provide the trial transcript on appeal. “When a party fails to
include necessary items, we assume they would support the court’s
3 The State argues that because Miller did not argue the seizure
warrant was “void” in the lower court, he has waived the issue. Miller
argued in his motion for summary judgment that the warrant was invalid
pursuant to A.R.S. § 13-3918. We address only Miller’s argument related to
whether the seizure warrant failed to comply with § 13-3918. To the extent
Miller is arguing on appeal the seizure warrant is void for any other reason,
Miller has waived that argument because it was not raised before his
appeal. See Regal Homes, Inc., 217 Ariz. at 171, ¶ 52.
4
STATE v. MILLER
Opinion of the Court
findings and conclusions.” Baker, 183 Ariz. at 73 (citing In re Mustonen’s
Estate, 130 Ariz. 283 (App. 1981)). Given that assumption, we cannot say
the court abused its discretion.
CONCLUSION
¶10 For the foregoing reasons, we affirm. We award costs to the
State upon compliance with ARCAP 21.
AMY M. WOOD • Clerk of the Court
FILED: AA
5