State v. One 2013, Toyota Corolla

GUNDRUM, J. ¶ 1 Steven T. Baumgard and Gladys A. Vogel appeal from the circuit court's order of forfeiture of the above-captioned 2013 Toyota Corolla. Defendants argue forfeiture of the Toyota pursuant to 586 Wis. Stat. § 961.55 (2013-14)1 is improper because (1) Vogel is an innocent owner of it under the statute and (2) forfeiture violates the Excessive Fines Clause of the Eighth Amendment to the United States Constitution. We conclude the circuit court correctly determined the innocent owner exception to forfeiture does not apply to Vogel. We further conclude forfeiture of the Toyota and Baumgard's financial interest in it is constitutional; however, forfeiture of Vogel's full financial interest in the vehicle is unconstitutional under the Excessive Fines Clause. Accordingly, we affirm in part, reverse in part and remand for further proceedings consistent with this opinion. Background ¶ 2 Baumgard was arrested in June 2013 on three counts of selling marijuana, utilizing a vehicle to assist with the sales. The allegations were that he sold 3.43 grams for $60 on April 24, 2013, 3.46 grams for $60 on May 1, 2013, and 3.48 grams for $55 on May 8, 2013, for a total of $175. On June 14, 2013, the Walworth county sheriffs office seized the Toyota, which Baumgard used in conjunction with the latter two sales.2 Criminal charges were filed against Baumgard in September 2013; all charges were dropped in June 2014 pursuant to a deferred prosecution agreement. ¶ 3 On July 2, 2014, the State commenced this action for forfeiture of the Toyota. Defendants responded that the Toyota should not be forfeited be 587 cause Vogel is an innocent owner of it and forfeiture would violate the constitutional prohibition against excessive fines. The circuit court held an evidentiary hearing, and, at the conclusion of the hearing, determined Baumgard is the actual owner of the Toyota, while Vogel is only a nominal owner, and therefore the innocent owner defense did not apply. The court then concluded that forfeiture of the Toyota would not constitute an excessive fine under the Eighth Amendment. The court ordered the Toyota forfeited, but stayed the order pending this appeal by Baumgard and Vogel. Additional facts are set forth as necessary. Discussion ¶ 4 This appeal raises two questions — whether the statutory innocent owner exception to forfeiture applies to Vogel so as to preclude forfeiture of the Toyota and whether forfeiture of the Toyota, and Baumgard's and Vogel's individual financial interests in it, violates the Excessive Fines Clause of the Eighth Amendment. Ownership under Wis. Stat. § 961.55 and the "innocent owner" exception ¶ 5 Pursuant to Wis. Stat. § 961.55(l)(d), a vehicle is subject to forfeiture if it has been used to transport illegal drugs for the purpose of selling the drugs. Section 961.55(l)(d)2. provides for an "innocent owner" exception, stating that "[n]o vehicle is subject to forfeiture under this section by reason of any act or omission established by the owner thereof to have been committed or omitted without the owner's knowledge or consent." To be entitled to the protection of the "innocent owner" exception, a defendant must prove he 588 or she is the actual owner of the vehicle, not just a nominal owner. See State v. Kirch, 222 Wis. 2d 598, 603-07, 587 N.W.2d 919 (Ct. App. 1998); see also Wis. Stat. § 961.56(1) ("The burden of proof of any exemption or exception [in this chapter] is upon the person claiming it."). Because the relevant facts in this case are undisputed, we review de novo the application of those facts to the statute and the circuit court's determination that Vogel is not "the owner" of the Toyota for purposes of § 961.55(l)(d)2. See Showers Appraisals, LLC v. Musson Bros., 2013 WI 79, ¶ 21, 350 Wis. 2d 509, 835 N.W.2d 226. ¶ 6 In Kirch, we identified "possession, title, control and financial stake" as relevant factors a court should consider in determining whether a defendant is "the owner" of a vehicle for purposes of the innocent owner exception.3 See Kirch, 222 Wis. 2d at 605-07. Considering these factors and the undisputed evidence presented at the forfeiture hearing, we agree with the circuit court that Vogel is not "the owner" of the Toyota, and therefore the innocent owner exception does not apply in this case. ¶ 7 The following are the relevant, undisputed facts presented at the forfeiture hearing through docu 589 ments and the testimony of Vogel and a sheriffs deputy who engaged with Baumgard and Vogel regarding Baumgard's use of the Toyota for selling marijuana. ¶ 8 The deputy testified that he spoke with Baumgard on the day the Toyota was seized, and Baumgard told the deputy he owned the Toyota; he had exclusive use of it, and Vogel did not drive it; he paid for the insurance, gas and maintenance for the vehicle; and Vogel purchased it but he was paying her back. The deputy further testified that when the Toyota was seized, Baumgard took personal items out of it; when he spoke with Vogel over the phone days after the seizure, she did not ask for the return of any personal items from the vehicle; and a record search indicated the Toyota was titled in both Baumgard's and Vogel's names. On cross-examination, the deputy confirmed that Baumgard never stated he was the sole owner of the Toyota. ¶ 9 Vogel testified she is an owner of the Toyota; paid $20,000 toward the purchase of it in April 2013 so Baumgard could go to work and school but Baumgard was supposed to pay her back; Baumgard had made two payments totaling $550 toward paying her back; she and Baumgard were both on the title when the Toyota was purchased less than two months prior to the seizure,4 but it was Baumgard's address on the title, not hers; and she has a different vehicle of her own and did not have to purchase another as a result 590 of the seizure. She further testified and produced documents showing her payment of the $20,000 for the Toyota and a $2500 credit received on the purchase price due to Baumgard trading in a prior vehicle he owned. She also testified she had no knowledge Baumgard was engaging in any criminal activity with the Toyota and she never consented to his use of it for such activity. ¶ 10 We consider the Kirch factors. Based on this record, it is clear Baumgard had nearly complete possession and control of the Toyota. He alone used it; Vogel did not. He paid for the insurance, gas and maintenance for the vehicle. When the Toyota was seized, Baumgard took personal items out of it, and the testimony suggests Vogel had no such items in the Toyota. Further, Baumgard traded in his prior vehicle for the Toyota, and Vogel had a different vehicle of her own and did not have to purchase another as a result of the seizure of the Toyota. ¶ 11 As to title, it is undisputed that when the Toyota was purchased and when it was seized two months later following Baumgard's use of it in multiple drug sales, it was titled in both Baumgard's and Vogel's names, but that the address on the title was Baumgard's not Vogel's. With regard to financial stake, $2500 of the purchase of the Toyota was funded by Baumgard's trade-in of his prior vehicle, while the remaining $20,000 was funded by Vogel with the agreement that Baumgard would pay her back. At the time of the forfeiture hearing, Baumgard had paid $550 to Vogel toward that debt. 591 ¶ 12 We also note that ultimately Baumgard is the one who will suffer most from the forfeiture of the Toyota in that not only will he lose out on the benefit of the money equivalent ($2500 trade-in) he put into the purchase and the $550 he has paid to Vogel, but he will no longer have the Toyota to utilize for his daily transportation needs, whereas Vogel has always had another vehicle of her own. See United States v. One 1981 Datsun 280ZX, 563 F. Supp. 470, 475 (E.D. Pa. 1983) (stating that looking to "who would actually suffer from the loss of the vehicle . . . provides an excellent focus for determining ownership in the forfeiture context"); United States v. One 1971 Porsche Coupe, 364 F. Supp. 745, 748 (E.D. Pa. 1973) (even though father challenging vehicle forfeiture had purchased vehicle and retained title to it, but had given it to his son, "it is claimant's son who will suffer the loss occasioned by forfeiture, and he was by no means innocent with respect to the prohibited activity"). ¶ 13 While Vogel still has the largest financial interest in the Toyota, we have no problem on this record agreeing with the circuit court that Baumgard was the actual owner of the vehicle, and Vogel was merely a nominal owner of it. Thus Vogel has failed to establish she is "the owner" of the vehicle for purposes of the statutory "innocent owner" exception. We must now determine whether forfeiture of the Toyota, while statutorily authorized, constitutes an unconstitutionally excessive fine when applied to the facts of this case. Constitutionality of Forfeiture ¶ 14 "[A] punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant's offense." United States v. 592 Bajakajian, 524 U.S. 321, 334 (1998). Defendants assert that forfeiture of the Toyota violates the clause; the State argues to the contrary.5 We review de novo the issue of whether a forfeiture is unconstitutionally excessive. State v. Boyd, 2000 WI App 208, ¶ 7, 238 Wis. 2d 693, 618 N.W.2d 251. ¶ 15 In making this determination, we consider the culpability of each owner of the subject property for the crime(s) giving rise to the forfeiture. See United States v. Ferro, 681 F.3d 1105, 1115-16 (9th Cir. 2012); von Hofe v. United States, 492 F.3d 175, 185 (2d Cir. 2007); Commonwealth v. 1997 Chevrolet, 106 A.3d 836, 862, 866 (Pa. Commw. Ct. 2014). Here, the State has named two defendants, Baumgard and Vogel, and we have already concluded that each has some ownership interest in the Toyota. While we recognize that Vogel effectively made a "loan" of $20,000 for the purchase, the terms are fairly informal, such that under the arrangement, as Vogel described it, Baumgard is supposed to "pay [her] what he could." In the year and a half between the purchase of the Toyota and the forfeiture hearing, Baumgard had paid Vogel back only $550 of her $20,000 loan. With this payment, Baumgard then has paid the equivalent of $3050 ($2500 trade-in of prior vehicle plus $550), and Vogel has paid the remainder. As the circuit court recognized, "the primary financial stake issue here falls on Ms. Vogel." Baumgard and Vogel both stand to incur at least some loss from the forfeiture of the Toyota; thus, we consider with regard to each Defendant whether the loss is excessive. 593 ¶ 16 In Boyd, we utilized a proportionality test for determining whether a forfeiture is unconstitutionally excessive, considering the nature of the offense, the purpose of the statute, the maximum potential fine for the offense,6 and the harm that actually resulted from the defendant's conduct. Boyd, 238 Wis. 2d 693, ¶¶ 11-17. Considering this test, we conclude forfeiture of the Toyota and Baumgard's financial interest in it is constitutional; however, forfeiture of Vogel's full financial interest in the vehicle is not. ¶ 17 We first consider the proportionality test with regard to Baumgard and begin by analyzing the first and fourth factors of the test — the nature of the offense and the harm resulting from Baumgard's conduct. Defendants argue that "there was no violence; no one was robbed; no one was shot;" and "forfeiture of a $22,500 car in a case involving the sale of $175 of 594 marijuana is patently disproportionate to the offense." The State contends Baumgard's "stipulatfion] that on three separate occasions he delivered marijuana, contrary to Wis. Stat. § 961.41(l)(h)l. . . which is a Class I felony... is not. . . insubstantial... [in that it] is punishable by imprisonment up to three years and six months and/or a fine of not more than $10,000, on each charge." The State also points out that "[e]ach of those three deliveries occurred in a public location, either the Wal-Mart parking lot or the Sentry parking lot, at a time of day when the public would be active in the area [between 11:30 a.m. and 2:00 p.m.]." ¶ 18 While the total amount of illegal drugs Baumgard sold was less than that of many large-scale drug dealers, and the charges were ultimately dropped pursuant to a deferred prosecution agreement, as the State points out, each of Baumgard's sales took place in the middle of the day in parking lots where members of the public would likely be present. And while we certainly recognize that no direct harm to innocent bystanders occurred on these occasions, Baumgard's repeated participation in the sale of drugs would harm not only the user of the drugs he sold but society more generally. Additionally, his sales of drugs in such public locations and at such times of day would inherently create at least some safety risk to others. See State v. Johnson, 2007 WI 32, ¶ 29, 299 Wis. 2d 675, 729 N.W.2d 182 (noting "the link between dangerous weapons and the drug trade"). While these two factors do not overwhelmingly support forfeiture of the Toyota and Baumgard's $3050 financial interest in it, they nonetheless do support it. ¶ 19 The second and third considerations of the proportionality test — the purpose of the forfeiture stat 595 ute and the maximum potential fine for the underlying offense(s) — more strongly support forfeiture. The purpose of the statute is "to deter drug trafficking by permitting confiscation and forfeiture of the means and mobility used" to sell illegal drugs. See Jones v. State, 226 Wis. 2d 565, 577, 594 N.W.2d 738 (1999). In that Baumgard utilized the Toyota for two of the three felony drug sales for which he was charged, forfeiture of the vehicle is entirely consistent with the purpose of the statute,7 as is forfeiture of Baumgard's financial interest in the vehicle, in that forfeiture of that interest will make it more difficult for him to purchase another vehicle for any future illegal drug sales. As to the maximum potential fine, Baumgard faced a potential fine of $10,000 for each of the three offenses with which he was charged. His exposure to fines of up to $30,000 dwarfs the $3050 financial interest he will lose through forfeiture here. ¶ 20 Forfeiture of the Toyota and Baumgard's $3050 financial interest in it does not violate the Eighth Amendment's Excessive Fines Clause. ¶ 21 Forfeiture of Vogel's full financial interest in the Toyota is an entirely different matter. This is not a case where evidence would support the conclusion that a nominal owner of a vehicle, such as Vogel, had knowledge of the actual owner's involvement with illegal drugs and simply took no action to prevent use of the vehicle for such activity. The undisputed testimony was that Vogel had no knowledge of Baumgard's illegal activity and certainly did not consent to it; and 596 the circuit court so found: "I don't think she knew anything about what [Baumgard] was doing with the car." Thus, Vogel had no culpability and none of the considerations of the proportionality test would support forfeiture of her full financial interest8 in the Toyota. As a result, forfeiture of her full financial interest, as the circuit court effectively ordered, is necessarily disproportionate and would amount to an unconstitutionally excessive fine. ¶ 22 Based on the foregoing, we conclude that the Toyota is properly forfeited, that $3050 of the proceeds from any sale of the vehicle — Baumgard's direct financial interest — is properly forfeited, but that any remaining proceeds are to be returned to Vogel. This holding balances the purpose of the forfeiture statute with the need to apply the law in a constitutional manner based on the individualized culpability of persons with an ownership interest in the subject property. Conclusion ¶ 23 As set forth above, we affirm the circuit court's determination that Vogel was not "the owner" of the Toyota for purposes of Wis. Stat. § 961.55(l)(d), and therefore the innocent owner exception does not apply here. We further affirm the circuit court's determination that forfeiture of the Toyota is constitutional under the Eighth Amendment's Excessive Fines Clause, as is forfeiture of Baumgard's own financial interest in the vehicle. We conclude, however, that 597 forfeiture of Vogel's full financial interest in the Toyota would amount to an unconstitutionally excessive fine, and we reverse the court's order to the extent it authorizes financial forfeiture from the Toyota in excess of $3050 — Baumgard's financial interest. Proceeds from forfeiture of the Toyota that exceed $3050 shall be returned to Vogel. By the Court. — Order affirmed in part; reversed in part and cause remanded with directions. Footnotes [1] All references to the Wisconsin Statutes are to the 2013-14 version unless otherwise noted. [2] Baumgard's previous vehicle, which he traded in as part of the purchase of the Toyota, was used in conjunction with the first sale of marijuana. [3] In State v. Kirch, 222 Wis. 2d 598, 587 N.W.2d 919 (Ct. App. 1998), while we addressed Wis. Stat. § 973.075(l)(b)2. (1995-96), we specifically drew upon Wis. Stat. § 961.55(l)(d)2. (1995-96). Kirch, 222 Wis. 2d at 603-05. We concluded that because both statutes "include the same 'innocent owner' defense language, which bars forfeiture if the crime was committed without the property owner's knowledge or consent," "the legislature intended 'owner' to have the same meaning in both provisions." Id. at 604-05. We note that the text of the 1995-96 and 2013-14 versions of § 961.55(l)(d)2. are identical in all respects relevant to this case. [4] On June 17,2013, three days after the Toyota was seized, Baumgard transferred his title interest over to Vogel, so that title was then held solely in her name. During its ruling, the circuit court discussed this move: The fact that he ran and gave up his interest per title three days after it was seized is very telling to the Court of evidence, 590 acknowledgement, that, oh boy, guilt on his part. He clearly was in possession of it. It was titled in both of their names until a couple of days after the seizure. [5] The State does not dispute that the Excessive Fines Clause is applicable to this case. [6] At one point, the Boyd court referred to this third factor as "the fine commonly imposed upon similarly situated offenders." State v. Boyd, 2000 WI App 208, ¶ 14, 238 Wis. 2d 693, 618 N.W.2d 251. The Boyd court, however, did not actually consider what fine was "commonly imposed upon similarly situated offenders," but instead considered the forfeiture amount in relation to the "the maximum fine" that could have been imposed for the underlying offense. See id., ¶¶ 15-17. Likewise, the Supreme Court in United States v. Bajakajian, 524 U.S. 321 (1998), the precedent upon which the Boyd court relied for the proportionality test, and this court in State v. Hammad, 212 Wis. 2d 343, 569 N.W.2d 68 (Ct. App. 1997), relied upon by Baumgard and Vogel, also considered the amount of the forfeiture in relation to the maximum potential fine for the underlying offenses in those cases. See Bajakajian, 524 U.S. at 338 — 39 & n.14; Hammad, 212 Wis. 2d at 357. We also note that the record in this case provides no basis upon which we even could determine "the fine commonly imposed upon similarly situated offenders." [7] As noted, the first offense occurred through use of Baumgard's prior vehicle, with the second two offenses occurring through use of the Toyota. No party suggests this should make any difference in our analysis. [8] We recognize that forfeiture of the Toyota may result in a financial recovery of less than $22,500, and therefore Vogel may ultimately receive less than the full amount Baumgard still owes her. She may address this issue with Baumgard; we do not deem it to be of constitutional significance.