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### STATE OF MICHIGAN

COURT OF APPEALS

In re FORFEITURE OF 2007 FORD FOCUS.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED October 8, 2015

v No. 321640 Wayne Circuit Court 2007 FORD FOCUS, VIN NO. 1FAHP34N57W192507, LC No. 13-004428-CF

Defendant,

and

STEVEN ROSS,

Claimant-Appellant.

Before: G ADOLA , P.J., and J ANSEN and B ECKERING , JJ.

J ANSEN , J. ( dissenting ).

I respectfully dissent. I would affirm the trial court’s judg ment of foreclosure because the prosecution proved its case by a preponderance of the evide nce.
As stated in the majority opini on, we review for clear error a trial court’s findings of fact during a forfeiture proceeding. In re Forfeiture of $19,250 , 209 Mich App 20, 29; 530 NW2d 759 (1995). “A finding of fact is clearly erroneous when, alth ough there is evidence to support it, the reviewing court is left with a definite and firm convic tion that a mistake has been made.” Id

. “ ‘In Michigan, forfeiture proceedings are in rem civil procee dings and the government has the burden of proving its case by a preponderance of the ev idence.’ ” In re Forfeiture of $25,505 , 220 Mich App 572, 574; 560 NW2d 341 (1996) (citation omitted) . As discussed in the majority opinion, MCL 333.7521 provide s, in relevant part:-2- (1) The following property i s subject to forfeiture:

(a) A prescription form, cont rolled substance, an imitation co ntrolled substance, a controlled substanc e analogue, or other drug that has been manufactured, distributed, disp ensed, used, possessed, or acqui red in violation of this article.

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(d) Except as provided in subparagraphs (i) to (iv), a conveya nce, including an aircraft, vehicle, or vessel 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 subdi vision (a) or (b)[.]

The prosecution established by a preponderance of the evidence that Linda Ross (“Linda”) used the vehicle to receive marijuana. Westland Poli ce Officer Robert Fruit testified that he conducted a traffic stop of the vehicle on the night of the incident. Linda was the only person in the vehicle. Officer Fruit smelled a strong odor of burnt marijuana in the vehicle, and Linda told him that she had been smoking marijuana. Linda told Officer Fruit that she purchased marijuana from a customer and that she knew that the customer s old marijuana. She told Officer Fruit that she drove to another location and smoked the marijua na inside of the vehicle. Officer Fruit recovered marijuana and a marijuana pipe from under the f ront passenger seat of the vehicle. Officer Fruit’s testimony established that Linda used the vehicle in order to receive marijuana from the customer since she drove to the customer’s h ouse knowing that he sold marijuana and purchased marijuana from him. See MCL 333.7521(1 ); Forfeiture of $25,505

, 220 Mich App at 574. In addition, the prosecution admitted a p olice report from a December 2012 incident, in which Linda was a passenger in a vehicle wher e marijuana was found. Linda explained during her testimony that the police found a marijuan a grinder containing marijuana residue in her front right pocket during the December 2012 inci dent. This testimony further indicates that Linda used the ve hicle in order to receive marij uana in this instance. See Forfeiture of $25,505 , 220 Mich App at 574. Therefore, the vehicle was subject to f orfeiture. See id

. The trial court clearly erred when it credited Linda’s testimo ny over Officer Fruit’s testimony. Linda testified that she received the marijuana as a tip for a pizza that she delivered. According to Linda, she receives marijuana as a tip a few times per month. However, there were several inconsistencies in Linda’s testimony. Linda testified that she received a monetary tip for delivering the pizza, which indi cates that she did not receive the marijuana as a tip. The fact that Linda had a marijuana pipe in the vehicle shows that she intend ed to receive marijuana in the near future. Linda failed to explain why she had a marijuana p ipe in the vehicle. Linda also testified regarding the December 2012 case. She denied that th e marijuana that was found in the vehicle was hers, but failed to explain why the grinder was in her pocket. Furthermore, Linda had reason to fabricate her story in order to avoid forfeiture of the vehicle. Considering the testimony as a whole, Linda’s testimony was incredible. See Forfeiture of $19,250 , 209 Mich App at 29. In contrast, Officer Fruit’s testimony regarding th e incident was credible since he did not contradict himself during his testimony and had no reason t o fabricate his story. See id

.-3- Therefore, the trial court made a mistake when it credited Lind a’s testimony over Officer Fruit’s testimony. See id

. Accordingly, the prosecution established by a preponderance of the evidence that Linda used the vehicle to purchase mar ijuana and, therefore, used the vehicle for the purpose of receipt of marijuana. I would affirm t he judgment of forfeiture.

/s/ Kathleen Jansen