State v. $18,000 , 311 Neb. 621 ( 2022 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/15/2022 08:06 AM CDT
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. $18,000
Cite as 311 Neb. 621State of Nebraska, appellee, v. Eighteen Thousand
Dollars in U. S. Currency ($18,000.00),
appellee, and Christopher Bouldin,
Interested Party, appellant.
___ N.W.2d ___
Filed May 20, 2022. No. S-21-660.
1. Statutes: Appeal and Error. Statutory interpretation presents a question
of law that an appellate court resolves independently of the trial court.
2. Appeal and Error. An argument that does little more than to restate an
assignment of error does not support the assignment, and an appellate
court will not address it.
Appeal from the District Court for Seward County: James C.
Stecker, Judge. Affirmed.
Bradley A. Sipp for appellant.
Lory A. Pasold, Seward Chief Deputy County Attorney, for
appellee State of Nebraska.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Papik, J.
A law enforcement officer seized $18,000 in cash from
Christopher Bouldin during a traffic stop. Following a trial in
subsequent forfeiture proceedings, the district court found that
the State had shown by clear and convincing evidence that the
cash was used or intended to be used to facilitate a violation
of the Uniform Controlled Substances Act and ordered the
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. $18,000
Cite as 311 Neb. 621cash forfeited to the State. Bouldin now appeals and asserts
that the district court applied an incorrect standard of proof
and that there was insufficient evidence to order the forfeiture.
We affirm.
BACKGROUND
This case began when the State filed a petition pursuant
to Neb. Rev. Stat. § 28-431 (Reissue 2016), alleging that on
or about August 1, 2020, an officer with the Seward County
Sheriff’s Department seized $18,000 from Bouldin. According
to the petition, the cash was used or intended to be used to
facilitate a violation of the Uniform Controlled Substances Act
and asked the district court to order that it be forfeited to the
State. Shortly thereafter, Bouldin entered his appearance and
filed an answer in which he asserted that the cash should be
returned to him.
The matter was set for trial, but Bouldin did not appear.
The only witness to testify was the officer who seized the cash
from Bouldin. The officer testified that on the day at issue, he
was operating a marked patrol car on Interstate 80 in Seward
County, Nebraska. There, he initiated a traffic stop and, later,
a search of a vehicle driven by Bouldin. The officer found and
seized $18,000 in cash.
The officer testified to various pieces of information that he
obtained during the stop that led him to believe that Bouldin
intended to purchase a large amount of marijuana with the
seized money. Among other things, the officer testified that
Bouldin told the officer he was traveling from his home in
Virginia to Colorado; that a certified drug dog positively
indicated the presence of illegal narcotics in the vehicle;
that Bouldin’s phone had pictures of marijuana taken in both
Virginia and Colorado; that a Colorado area code phone
number had sent text messages to Bouldin’s phone contain-
ing photographs and video of what the officer identified as
marijuana and “THC wax”; that Bouldin had sent text mes-
sages to the same number requesting “8 widow” and “8 goat”;
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. $18,000
Cite as 311 Neb. 621and that in the officer’s opinion, the person using the other
phone number was offering to sell marijuana and “THC wax,”
and that Bouldin was agreeing to make a purchase. The State
also introduced evidence that Bouldin had previously been
convicted in Utah of attempted possession of a controlled sub-
stance with intent to distribute.
After the trial, the district court entered an order in which it
stated that it had found by clear and convincing evidence that
the seized cash was used or intended to be used to facilitate a
violation of the Uniform Controlled Substances Act. The dis-
trict court ordered the cash forfeited to the State and entered an
order of distribution.
Bouldin filed a timely appeal.
ASSIGNMENTS OF ERROR
On appeal, Bouldin assigns that the district court erred
by (1) applying a clear and convincing evidence standard of
proof and (2) finding that there was sufficient evidence to
order forfeiture.
STANDARD OF REVIEW
[1] Statutory interpretation presents a question of law that
an appellate court resolves independently of the trial court. See
State v. Riessland, 310 Neb. 262, 965 N.W.2d 13 (2021).
ANALYSIS
Standard of Proof.
Bouldin claims that the district court erred by applying a
clear and convincing evidence standard of proof in consider-
ing whether the money was used or intended to be used to
commit a violation of the Uniform Controlled Substances
Act. He submits that the correct standard is beyond a reason-
able doubt.
The parties agree that this case is governed by § 28-431.
That statute sets forth how such cases are to proceed if, as here,
a party files a claim to property that the State has sought to
forfeit. It provides in relevant part:
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. $18,000
Cite as 311 Neb. 621If the claimant proves by a preponderance of the evidence
that he or she (a) has not used or intended to use the
property to facilitate an offense in violation of the act,
(b) has an interest in such property as owner or lienor or
otherwise, acquired by him or her in good faith, and (c)
at no time had any actual knowledge that such property
was being or would be used in, or to facilitate, the viola-
tion of the act, the court shall order that such property . . .
be returned to the claimant. If there are no claims, if all
claims are denied, or if the value of the property exceeds
all claims granted and it is shown by clear and convinc-
ing evidence that such property was used in violation of
the act, the court shall order disposition of such property
at such time as the property is no longer required as evi-
dence in any criminal proceeding.
§ 28-431(6).
Bouldin makes no argument he carried the burden of proof
that the foregoing language places on the claimant. His argu-
ment is instead focused on the burden of proof the statute
places on the State.
Bouldin’s argument relies on prior cases governed by
§ 28-431 in which we observed that the State was subject
to a beyond a reasonable doubt standard. See, e.g., State v.
Franco, 257 Neb. 15, 594 N.W.2d 633 (1999); State v. 1987
Jeep Wagoneer, 241 Neb. 397, 488 N.W.2d 546 (1992). At the
time of those cases, however, § 28-431(4) expressly provided
that in order for property to be forfeited, the State was required
to prove beyond a reasonable doubt that property was used
in violation of the Uniform Controlled Substances Act. See
§ 28-431(4) (Reissue 2008). In 2016, the Legislature amended
the statute to remove the “beyond a reasonable doubt” lan-
guage and to replace it with “clear and convincing evidence.”
See 2016 Neb. Laws, L.B. 1106, § 6. Because the district court
applied the standard of proof required by the governing statute
and Bouldin makes no claim that the statute is unconstitutional,
we find no error on the part of the district court.
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Nebraska Supreme Court Advance Sheets
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STATE v. $18,000
Cite as 311 Neb. 621We acknowledge that in State v. Franco, supra, one of
the cases upon which Bouldin relies, we held that forfeiture
actions pursuant to § 28-431 are criminal proceedings. Because
this case does not require us to determine whether forfeiture
proceedings under the statute remain criminal in nature after
the 2016 amendments to § 28-431, we leave that question for
another day.
Sufficiency of Evidence.
Bouldin’s second assignment of error is that there was insuf-
ficient evidence for the district court to find that the $18,000
was subject to forfeiture. Bouldin’s brief, however, provides
next to nothing in the way of argument in support of this asser-
tion. He states only that the district court “did not find that
the evidence in the case at hand met the [beyond a reasonable
doubt standard], very possibly because it simply did not.” Brief
for appellant at 9.
[2] As we have previously emphasized, an appellant is
required to identify in his or her brief the factual and legal
bases that support the assignments of error. See Marcuzzo v.
Bank of the West, 290 Neb. 809, 862 N.W.2d 281 (2015). It is
a fundamental rule of appellate practice that an alleged error
must be both specifically assigned and specifically argued in
the brief of the party asserting the error. See State v. Filholm,
287 Neb. 763, 848 N.W.2d 571 (2014). The failure to comply
with this rule comes with consequences. An argument that does
little more than to restate an assignment of error does not sup-
port the assignment, and an appellate court will not address
it. Id.We find that Bouldin has failed to provide an adequate
argument in support of his second assignment of error. The
totality of his argument is an assertion that the evidence was
insufficient under a beyond a reasonable doubt standard.
As we have already explained, Bouldin has not shown that
the State was required to meet a beyond a reasonable doubt
standard. More importantly, Bouldin has not provided any
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. $18,000
Cite as 311 Neb. 621discussion of why the evidence was insufficient under any
standard of proof. Because Bouldin failed to provide a spe-
cific argument in support of his second assignment of error,
we will not address it. See Filholm, supra.
CONCLUSION
Because we find no error on the part of the district court,
we affirm.
Affirmed.