# In the Missouri Court of Appeals Eastern District

DIVISION TWO

STATE EX REL. ) No. ED 101045 FORREST K. WEGGE, ) ) Plaintiff/Respondent, ) Appeal from the Jefferson County ) Circuit Court vs. ) ) Honorable Nathan B. Stewart KEITH E. SCHRAMEYER , ) ) Filed: August 26, 2014 Defendant/Appellant. )

Introduction Keith Schrameyer (Defendant) appeals the summary judgment order of the Circuit Court of Jefferson County forfeiting $2,439. Defendant claims that the circuit court erred by granting summary judgment because: (1) Defendant presented sufficient admissible

evidence contrave ning the evidence offered by the State (Plaintiff); and (2) Defendant “proved” that the money seized was legitimately derived and not subject to seizure. Resolution of these claims requires this Court to consider an issue of first impression, mainly: What factual allegations are necessary to demonstrate a material question of fact sufficient to rebut the “presumption of forfeitability” applicable in certain forfeiture2

proceedings under the Criminal Activity Forfeiture Act (CAFA), § 513.600 RSMo (2000), et seq. ? 1 We hold that, in order to rebut the presumption of forfeitability, a defendant must allege facts supporting the conclusion that the seized property found in close proximity to a controlled substance was not furnished , n or intended to be furnished , in exchange for the controlled substance and also was not used, n or intended to be used,

to facilitate the criminal activity . Because Defendant failed to adduce any competent material evidence that the $2,439 was not used, nor intended to be used, in the furtherance of the criminal activity, Defendant failed to demonstrate a genuine issue of

material fact and , therefore, the circuit court’s grant of summary judg ment was proper.

W e affirm. Factual Background On June 20, 2012, Jefferson County police respo nded to a narcotics complaint at a residence in DeSoto, Missouri. The homeowners gave the police permission to enter the residence, and upon entering, the officers located Defendant behind the door of the master bedroom. Multiple bags of marijuana, metha mphetamine, and pseudoephedrine were seized from the master bedroom and the dining room table, as well as a box of plastic bags and a digital scale. Officers also seized $2,439 from Defendant’s wallet, which was on his person. Defendant admitted that he owned the items that the officers seized, including the money. Defendant was arrested and subsequently pleaded guilty to one count of possession of a controlled substance

.

1 All statutory references are to the Revised Missouri Statutes 2000.3

Thereafter, Plaintiff, through Jefferson County Prosecutor Forest Wegge, proceeded with a petition under the CAFA seeking forfeiture of the $2,439 seized from Defendant’s wallet. The petition alleged that the currency was “used or intended for use in the course of, derived from or realized through criminal activity [and that] pursuant to Section 195.140.2(2) RSMo, currency or moneys are presumed forfeitable when found in close pro ximity to controlled substances.” Subsequently, Plaintiff moved for summary judgment, re

- asserting the same claims and alleging that no genuine issue of material fact

remained. Defendant responded to the motion by alleging that a genuine issue of mater ial fact existed and precluded summary judgment, in that , the money was given to him by his

mother , Ellen Schrameyer . In support, Defendant included an affidavit in which he averred that his mother gave him the money as a “gift” to help pay for child supp ort and living expenses and was “not used or intended for use in the course of, derived from, or realized through criminal activity.” Defendant also attached copies of two checks from

Ellen ’s account, which were written to “cash” for $3,000 and signed by Ellen. The first check is dated June 16, 2012 and was processed on June 18, 2012, and the latter is dated June 19, 2012 and was processed the same day . Defendant, thus, claimed that he had sufficiently rebutted the presumption of forfeitability.

Witho ut addressing Defendant’s arguments, the circuit court entered a judgment in favor of Plaintiff, reasoning that “there remains no genuine issue of material fact to be resolved by this action.” This appeal followed.4 Standard of Review

We review de novo t he circuit court’s summary judgment decision. State v. Eicholz , 999 S.W.2d 738, 740 (Mo. App. W.D. 1999) . We view all the submissible evidence in the light most favorable to the non

- moving party, giving that party the benefit

of all reasonable inferences

. Id . Summary judgment is properly granted if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of

law. St. Charles County v. Dardenne Realty Co. , 771 S.W.2d 828, 830 (Mo. banc 1989). A genuine issue of material fact precluding summary judgment exists if the record contains competent material evidence that supports two plausible, but contradictory

conclusions. Rustco Prods. Co. v. Food Corn , 925 S.W.2d 917, 923 (Mo. App. W.D. 1996)

. Discussion

Defendan t’s two points relied on raise substantially similar arguments and, therefore, we consider them together. Defendant claims that the circuit court’s summary judgment order was erroneous because a genuine issue of material fact existed sufficient

to contrav ene Plaintiff’s allegation that the money was presumptively forfeitable under § 195.140.2(2). In particular, Defendant relies on his affidavit in which he attests that his mother gave him the money as a gift to help pay child support and living expenses. Alternatively, Defendant claims that the judgment was erroneous because he “proved” that the money was legitimately derived and possessed, meaning that summary judgment should have been entered in his favor. In response, Plaintiff asserts that Defendant failed to provide competent evidence to substantiate Defendant’s claim that the seized currency5

was not related to criminal activity in order to rebut the statutory presumption of forfeitability. Applicable Forfeiture Statutes Missouri disfavors forfeitures and such actions are only undertaken if they advance the letter and spirit of the law. State ex rel. Maclaughlin v. Treon , 926 S.W.2d 13, 16 (Mo. App. W.D. 1996)

. Under Missouri’s Comprehensive Drug Control Act (DCA) , 195.0 05 et seq ., the legislature has required that “everything of value” furnished to facilitate the commission of a drug felony, as in the instant case, shall be forfeited. Specifically, § 195.140.2(1) provides in pertinent part: Everything of value furnish ed, or intended to be furnished, in exchange for a controlled substance, imitation controlled substance or drug paraphernalia in violation of sections 195.010 to 195.320 , all proceeds traceable to such an exchange, and all moneys, negotiable instruments, or securities used, or intended to be used, to facilitate any violation of sections 195.01 0 to 195.320 shall be forfeited . . .

. Such “money found in clos e proximity to forfeitable controlled substances furnishes a logical basis for the inference of forfeitability . . . .” State ex rel

. Cook v. Saynes , 713 S.W.2d 258, 262 (Mo. banc 1986). The proceeding subsection of the DCA, § 195.140.2(2) , recognizes th is inference and creates a presumption that such proceeds found in “close proximity” to a controlled substance are presumed forfeitable. Section 195.140.2(2) states: Any moneys, coin, or currency found in close proximity to forfeitable controlled substances, imitation controlled substances, or drug paraphernalia, or forfeitable records of the importation, manufacture, or distribution of controlled substances, imitation controlled substances or drug paraphernalia are presu med to be forfeitable under this subsection.6

The burden of proof shall be upon claimants of the property to rebut this presumption. [Emphasis added.]

The D CA further requires that such forfeiture proceedings, which are civil in nature and ancillary to t he underlying criminal proceeding, be administered pursuant to special procedures set forth in the CAFA. § 195.140.2(3); see also § 513.607

. To initiate a forfeiture proceeding under the CAFA, the State files a “petition which sets forth: (1) the property sought to be forfeited; (2) that the property sought to be forfeited is within the jurisdiction of the court; (3) the grounds for forfeiture; (4) the names of all known persons having or claiming an inte rest in the property; and (5) the date and place the property was seized.” Eicholz , 999 S.W.2d at 741; § 513.607.6(1) & (2). The State has the burden of proving each of these elements. § 513.607.6(2). Pertinent to this appeal is the State’s burden to establish grounds for civil forfeiture, which ordinarily requires the state to present substantial evidence that “[a]ll property of every kind, including cash or other negotiable instruments, [was] used or intended for use in the course of, derived from, o r realized through criminal activity

. . . .” § 513.607.1 (emphasis added) ; see State ex r el. Boling v. Malone , 952 S.W.2d 308, 312 (Mo. App. W.D. 1997)

. The CAFA defines “criminal activity,” in relevant part, as

“ the commission . . . [of] any crime whi ch is chargeable by indictment or information

under . . . [the DCA, i.e .,] Chapter 195, relating to drug regulations .” § 513.605(3)(a). Hence, as this Court has recognized, the CAFA incorporates the DCA by reference, making the presumption of forfeitabil ity applicable to CAFA proceedings. See State ex

r el. Callahan v. Collin s , 978 S.W.2d 471, 475 (Mo. App. W.D. 1998). It follows that , in7

a civil forfeit ure proceeding involving a drug

- related felony, the State is entitled to rely

on the “ presumption that money found in close proximity to a controlled substance was acquired as enunciated in section 195.140.2(1)” in establishing grounds for forfeiture.

See State v. Meister , 866 S.W.2d 485, 490 (Mo. App. E.D. 1993); § 195.140.2(2). “The burden of proof is on [the defendant] to rebut this presumption.” State v. Dillon , 41

S.W.3 d 479, 484 (Mo. App. E.D. 2000) ( citing Meister , 866 S.W.2d at 488 ) ; § 195.140.2(2). Analysis Here, Plaintiff’s petition for civil forfeiture under the CA FA included all the necessary elements to establish entitlement to the forfeiture, including the allegation that the money was found in close proximity to controlled substances and was presumed

forfeitable under § 195.140 .2(2). Once Plaintiff moved for su mmary judgment, Defendant could not rest on mere denials, but was required to set forth specific facts, by affidavit or otherwise, showing a genuine issue of fact for trial. Dardenne Realty Co. , 771 S.W.2d at 830. To meet this burden, Defendant submitted an affidavit, in which

Defendant attested as follows:

1. I am the defendant in Jefferson County Circuit Court Cause No. 12JE

- CC00636.

2. On June 20, 2012, the Jefferson County Sheriff’s Department seized $2,439.00 in U.S. currency from my wallet that was on my person. 3. The $2,439.00 in U.S. currency seized from me on June 20, 2012, was not used or intended for use in the course of, derived from, or realized through criminal activity.8

4. The $2,439.00 in U.S. currency seized from me on June 20, 2012, was money tha t was given to me as a gift by my mother , Ellen Schrameyer, in two checks amounting of [sic] $3,000.00 each, drawn on the Southern Commercial Bank and dated June 16, 2012, and June 19, 2012.

5. Attached hereto as exhibits #1 and #2 are true and correct copies of the checks and cashing endorsements.

6. The money from these two checks was given to me by my mother to help me pay child support and my living expenses . It was not used or intended for use in the course of, derived from, or realized through criminal activity. [Emphasis added.] Defendant also included in support the two checks written “ to cash ” by his mother, totaling $6,000, which were processed on June 18 th and 19th.

An “ opposing affidavit[] must be made on personal knowledge, shall set forth facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify on the matters stated therein.” Dardenne Realty Co. , 771 S.W.2d at 830 ; Rule 74.04(e)

. “ An affiant who fails to aver specific facts and relies only upon mere doubt and speculation fails to raise any issue of material fact. ” Kellog v. Kellog , 989 S.W.2d 681, 687 (Mo. App. E.D. 1999) (citation and quotations omitted) . Further, “[c]onclusory allegations are not sufficient to raise a questi on of fact in summary judgment proceedings.” Id. With these standards in mind, we note that neither Defendant nor Plaintiff cite a single forfeiture ca se decided at the summary judgment stage. Plaintiff cites to Ware v.

State , 128 S.W.3d 529 (Mo. App. E.D. 2003) , Dillon , 41 S.W.3d at 479 , and Collins , 978

S.W.2d at 471, but these cases affirmed the forfeitu re of currency found in close proximity to a controlled substance after a trial on the issue . The question in Ware ,9

Dillon , and Collins was whether substantial evidence supported the trial court’s judgment and, consequently, these cases do not illuminate what factual allegations are necessary to avoid summary judgment when the state relies on the presumption of forfeitability. Further, we are unaware of any such case that specifically addresses the issue that is now

before this Court. 2 In our view, the best guidance, in the absence of any controlling case law, is the pertinent language of the DCA. Our primary goal is to give effect to the legislatur e’s intent and, to do so, we must give statutory language its plain and ordinary meaning. Anani v. Griep , 406 S.W.3d, 482 (Mo. App. E.D. 2013). If statutory language is unambiguous, then the words must be applied as written without any judicial

construct ion. See id

. Recall that the presumption of forfeitability enunciated in § 195.140.2(2) is based on the logical inference that currency seized in close proximity to controlled substances as described in § 195.140.2(1) is related to the commission of the d rug felony. Reading § 195.140.2(1) and (2) together, it is clear that a defendant may oppose a summary judgment motion that relies on the presumption of forfeitability by demonstrat ing through competent material evidence a genuine issue of material fact t hat the currency seized in close proximity to the controlled substance was not procured as described in § 195.140.2(1). T his showing requires a defendant to allege facts supporting the

conclusion that the currency found in close proximity to the controll ed substance was not

2 In Meister , 866 S.W.2d at 490, this Court considered the presumption of forfeitability in the context of an Eight h Amendment challenge and noted in dicta that “[t]he burden to prove that the currency and coin found in close proximity to a controlled substance were not received in exchange for, nor were intended to be used t o obtain, controlled substance is shifted to the person claiming the money.” However, Meister was not decided in the context of the CAFA, as it predated the requirement that all forfeiture proceedings be conducted pursuant to the CAFA, and did not consider the exact question before this Court.10

“furnished , ” n or “ intended to be furnished , ” in exchange for the controlled substance and

also was not “ used, ” n or “ intended to be used, ” to facilitate the criminal activity as set forth in § 195.140.2(1) . If a defendant fails to make either showing, then the inference that money found in close proximity to controlled substances is related to the criminal activity is not contradicted and no genuine issue of material fact exists for trial. Here, Defendant’s allegation that his mother g ave him the money is sufficiently specific to establish a material question of fact regarding whether the currency was

furnished or intended to be furnished in exchange for controlled substances. More importantly , this factual allegation is insufficient t o establish that the money was not used in furtherance of, or intended for use in furtherance of, Defendant’s criminal activity. This is because Defendant’s attestations merely reflect how Defendant allegedly received the money and Defendant’s understandi ng of his mother’s intent regarding her provision of the currency. Defendant’s affidavit makes no specific factual allegations that he in fact used the money for child support or living expenses, or an explanation of how he intended to use the money in th e future. Nor did Defendant make any effort to demonstrate what he spent the remaining $3,561 on in the one to two days the currency was in his possession. Indeed, the only allegation that Defendant offers that the money

was not to be used in furtherance of criminal activity is the conclusory statement that the currency was not used for criminal activity. Such a conclusory allegation is insufficient to create a genuine issue of material fact for trial. Kellog , 989 S.W.2d at 687.

Because Defendant did n ot adduce specific facts supporting a conclusion that the money was not used, n or intended to be used, in the furtherance of the criminal activity,11

he failed to provide the evidence necessary to rebut the presumption of forfeitability and

also to create a genuine issue of material fact for trial. For this same reason, Defendant has not “proved , ” as he claims in his second point relied on, that the currency seized was legitimately derived and possessed such that summary judgment should have been granted in his favor. 3 T he circuit court did not err by granting summary judgment for

Plaintiff.

Conclusion The judgment of the circuit court is affirmed.

____________________________ ____ Philip M. Hess , Judge

Sherri B. Sullivan , P.J. and Mary K. Hoff , J. concur.

3 In support of this argument, Defendant asserts that Plaintiff presented no evidence that the money seized was used or derived through criminal activity and that Defendant met his burden of rebutting the presumption. Contrary to Defendant’s assertion, Plaintiff presented substantial evidence that the drugs and drug related paraphernalia were seized from Defendant at the same time that the currency was seized . Under these facts, Plaintiff was entitled to rely on the presumption of forfeitability

.