IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2017-CA-00354-COA ABDULKHALIQ MOHAMMED MURSHID APPELLANT

v. STATE OF MISSISSIPPI, EX REL. MISSISSIPPI BUREAU OF NARCOTICS APPELLEE

DATE OF JUDGMENT: 02/09/2017 TRIAL JUDGE: HON. JUSTIN MILLER COBB COURT FROM W HICH APPEALED: LAUDERDALE COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: P. SHAW N HARRIS ATTORNEY FOR APPELLEE: ALLISON W ALKER KILLEBREW NATURE OF THE CASE: CIVIL - OTHER DISPOSITION: AFFIRMED - 05/08/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., CARLTON AND WESTBROOKS, JJ. LEE, C.J., FOR THE COURT: ¶1. In this f

orf eiture case, we m

ust determ ine whether the trial court’s decision to grant the State’s com

plaint f or f orf eiture is supported by

substantial evidence. PROCEDURAL HISTORY ¶2. On Jul y 9 , 2 0 1 5 , A b d u l k h a l i q M u r s h id was arrested f or violating the Unif

orm Controlled Substances Law. 1 Mushid was indicted f o r pos session with intent to sell m ore than 200 gram s of s y

nthetic cannabinoids, a/k/a “spice,” a Schedule I controlled substance. 2

1 S ee M iss. C o d e A n n . § § 4 1 -2 9 -1 0 1 to -1 9 1 (R ev . 2 0 1 3 & S u p p . 2 0 1 7 ).

2 A t th e tim e o f

th e f o rf eitu re h earin g in J an u a r

y 2 0 1 7 , th e crim in al ch arg es ag ain st M u rsh id w ere still p en d in g .S

e e M i s s . Code Ann. § 4 1-29-139 (Supp. 2017). Due to the quantity involved, the char g e qualif ies as drug t raf

f icking and carries a m i nim um sentence of

ten y ears’ im

prisonm ent, a

m axim u m sentence of f

o rty y ears’ im

prisonm ent, and a f

ine of up t o one m i ll i o n dollars. § 41-29-139(f

)

. The State f

i led a com

plaint f or f orf e iture in the Lauderdale County Circuit Cou r t , s e e king certain property belonging to Murshid, including $227,278.26 in U.S.
currency , two guns, a digital video recorder, a DVD p lay er, and a com puter tablet. Murshid f iled a r esponse arguing that the property was not subject to f orf eiture. Af

t er a hearing, the trial court granted the S tate’s request as to $131,729.26. The trial court denied the S t ate’s request as to the rem ainder of the currency

($95,549) and the property

. ¶3. Murshid now appeals, arguing that the trial c ourt erred by f inding $131,729.26 was subject to f

orf e iture. FACTS ¶4. On July 9, 2015, the Mississippi Bureau o f N a r c o t i c s ( M B N ) e x e cuted a search
warrant at the Meridian T obacco S tore, located at 4501 8th Street in Meridian, M ississippi. Murshid o wned the store and operated it with his wif e S usan. It was f

o r me r l y n am ed Chim ney Tobacco Store and h ad been at a dif f e rent location (5300 5th S treet). The record is not clear when the s tore m oved and changed n am es, but, prior to and af ter the store’s nam e and location change, MBN agents m a de eight controlled buy s at Chim ney Tobacco and two controlled buy s at Meridian Tobacco

. According to the search warrant, all ten controlled buy s occurred between July 30, 2014 and July 8, 2015. ¶5. That sam e day MBN agents went t o G rey Cloud Discount Tobacco Store, located at

22012 Highway 4 5 N orth, to arrest Murshid. Murshid also owned Grey C loud and several

other stores in Meridian. Murshid was not at t he s t ore, but an MBN agent witnessed what he suspected were sy

nthetic cannabinoids f

or sale. Another agent, W i ll Peterson, r esponded
to t he store to f

urther investigate. Ultim ately , Agent Peterson obtained a search warrant f or Grey Cloud. During the search of Grey Cloud, agents discovered sy nthetic cannabinoids in a drawer near the cash register and in boxes in the of f i ce. Approxim ately

180 packages of suspected sy

nthetic cannabinoids were seized. The agents also discovered the f ollowing in the of f ice: approxim ately $28,000 in cash dispersed throughout several p l a s t i c bags; approxim a tely $5,600 in cash locked in the of f i ce desk; $191,951 in cash l ocked inside a saf e in t he o f f i ce; two guns; and various pieces of electronic equipm e nt. At the f orf eiture hearing, Agent Peterson testif

ied that the i t e ms seized were in c lose p roxim ity to the sy nthetic cannabinoids. ¶6. Murshid claim ed t hat he thought the drugs were herbal incense and that h is wif e was responsible f

or o rdering them

. Murshid t e s tif ied that $95,549 of the cash in the saf e had been returned t o h i m by the Drug Enf orcem ent Agency in 2014. Murshid f urther testif

ied that t he rem aining cash in his of f ice was f r om his stores’ earnings and his savings. He stated

t h a t h e did not t rust b anks and would put t he cash in his bank accounts as n eeded to cove r business transactions and expenses. STANDARD OF REVIEW ¶7. Our standard of

review in f

orf eiture cases is as f

ollows: Forf eiture s tatutes are penal in nature and m ust be strictly c o nstrued. I n a civil f orf eiture case, the question is whether, given all of the e v i d ence taken

3together, a rational t rier of f act could have f

ound that the f

unds w ere the pro d uct of or the instrum entalities of violations o f the State’s Unif orm Controlled Substances Laws. The t rier of f act m ay act on c i r c u mstantial evidence and inf

e rences as well as direct evidence.
Evans v. Ci t

y of Aberdeen , 925 So. 2 d 8 50, 853 ( ¶11) (Miss. C t. App. 2005) (internal citations om itted). Our precedent f urt h e r e s t a blishes that “[ t]he appropriate s tandard of review in f

orf eiture cases is the f

ami l iar substantial evidence/clearly e rroneous test. [ The appellate court] will not disturb a circuit court’s f indings unless it has applied an erroneous legal standard to decide the q uestion of f

act.” Six Thousand Dollars ( $6,000) v. State ex rel. Miss. Bureau of Narcotics , 179 So. 3d 1, 4 (¶4) (Miss. 2015) (citation om itted). DISCUSSION ¶8. In his o n l y i s s u e o n appeal, Murshid argues that the $131,729.26 was not in close proxim ity to the controlled substance and, a s a result, the t rial court erred by f inding it was subject to f

orf eiture. M urshid contends that he m et his burden to r ebut the presum ption that the m oney

was f orf eitable. ¶9. M i s s i s s i p p i C o d e A n notated section 41-29-153(a)(7) (S u p p . 2 0 1 7 ) s t a t e s , “ A l l m o n i e s , coin and c urrency f

ound i n cl o s e p r oxim ity to f orf eitable controlled substances

. . . are presum ed to be f

orf eitable under this paragraph; the burden of p roof is u pon claim ants of the
prope r t y t o rebut this presum ption.” “Close proxim ity has not been strictly def ined, but is instead unders t o o d to m ean ‘very near.’” Twenty Thousand Eight Hundred Dollars ( $20,800.00) in U

.S. Currency v. State ex rel. M iss. B ureau of

Narcotics , 115 So. 3 d 137, 142 (¶23) (Miss. Ct. App. 2013) ( citing Jones v. State ex rel. M iss. Dep’t of

Pub. Safety , 607 So. 2d 23, 29-30 (Miss. 1991)).

4¶10. In One ( 1) Charter Arms, Bulldog 44 Spe c i a l , S e r i a l N o
. 7 9 4 7 7 4 v. State ex rel.
Moore , 721 So. 2d 620, 624-25 ( ¶19) (Miss. 1998), our suprem e court adopted a test to determ ine whether a f

orf eiture is lawf

ul. W e look to the f

o llowing f

our elem ents: (1) [ t]he nexus between the of f ense and the property and the e xten t o f t h e property ’s role in the of

f ense; (2) [ t ]he role and culpability of the owner; (3) [ t]he p ossibility of

separating the of

f e n ding property f

rom the rem ainder; and (4) [ w]hether, af

ter a review of all relevant f acts, t he f

orf eiture divests the owner of property w hich has a value t hat is grossly disproportio n a t e t o t h e crim e or grossly

disproportionate to the culpability of the owner. Id. at 625 ( ¶19)

. “ Essentially , the f irst three elem ents ensure a s uf f iciently close relationship between t h e p r operty and the i llegal a ctivity

. The f ourth elem ent protects of f enders f rom f orf eitures that are grossly disproportionate t o the of f ense.” Lewis v. State , 199 S o. 3d 1245, 1251 (¶12) (Miss. 2016) (citation om itted). ¶11. All of the m oney seized was f ound i n G r e y C l o u d’s o f f ice near a large quantity

of
sy nthetic cannabinoids. However, Murshid argues that the m oney s e ized w as f rom a legitim ate source o f incom e , nam ely several businesses he o wned in the a r ea. To support his

a r g u m e n t , M u r s hid s ubm itted f

inancial r ecords, including tax returns and statem ents of a s s e t s and liabilities f

rom several stores. The trial court, noting the above f our elem ents, f

ound that Murshid f

ailed to rebut t he presum ption. The t r ial court f

ound Murshid’s testim ony was unpersuasive, specif

i cally stating that h is testim ony “was contradictory

and not plausible.” The trial court noted that Murshid presented a “m aze of f inancial records, i n c l u d i ng
statem ents of assets f

rom v arious convenience stores and tax r eturns,” but that u pon questioning, Mu r s h i d “could o nly generally answer questions r elated to t he s u bstantive

5contents of

the f inancial records.” ¶12. Murshid testif

ied that h e gave the f

inancial inf

orm a tion to his C P A , Angie Shirley , and s he prepared the f

inancial docum ents. The trial court f ound inconsistencies w ithin the docum ents, noting that the only exhibit with Shirley ’s nam e attached includes a l etter f rom Shirley stati ng that “Managem ent has elected to om it substantially a ll of the disclosures ordinarily included in f

i nancial statem ents p r e p a

r e d w i t h the incom e tax basis of accounting.” And the statem ents of assets f or two other stores Murshid purportedly owned l isted som eone besides Murshid a s the sole owner—Gas & Go and S m okers Express each listed Moham ed
Ham ood Mozip as the sole m em ber of the LLC. Furtherm ore, Murshid stated t hat he gave the Chim ney Tobacco store to his wif e in 2013, well bef

ore t he store changed its nam e and location. However, Murshid adm ittedly never legally transf e rred the business to hi s wif e. Regardless, evidence indicated that o ut of the t en controlled buy s at C h im ney Tobacco and Meridian Tobacco between July 30, 2014 and J uly 8, 2015, th e c o n f i d ential inf

orm ant purchased sy

nthetic c annabinoids f

rom Mur shid him self six t im es, indicating M urshid’s

com plicity

. These controlled buy s ultim ately led t he MBN a gents to Grey Cloud w here the

m oney and additional sy

nthetic cannabinoids were f ound. ¶13. The trial court determ i ned that the onl y mo ney Murshid p roved was not subject to f orf eiture was the $95,549 previously returned to him by the DEA. The trial court stated the quantity of sy

nthetic cannabinoids indicated its use f or sale, and as such, Murshid’s reasons f or having a large quantity of cash were “not plausible w hen taking the entir e t y o f t he evidence and testim ony

in consideration.”

6¶14. Lastly , the trial court c oncluded that the f orf eiture did not divest Murshid of property with a value grossly disproportionate to the crim e or to his culpability

. The $131,729.26 in cash is m inor w hen c om

pared to the m axim

um $1,000,000 f

ine that could be im

posed. This f orf eited am ount of cash is not g r o s s l y disproportionate to Murshid’s crim e or to his culpability

. ¶15. Mindf

u l o f our standard of review, we can n o t f i n d t h e t rial court erred in f inding $131,729.26 was subject to f orf eiture. This issue is without m erit. ¶16. AFFIRMED. IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, WILS O N, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

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