IN THE SUPREME COURT OF THE STATE OF MONTANA 

1995 

IN THE MATTER OF THE SEIZURE OF 

$23,691.00 IN UNITED STATES 

CURRENCY 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Thomas A. Olson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Karl P. Seel, Bozeman, Montana 

For Respondent: 

Hon. Joseph P. Mazurek, Attorney General, Cregg 

Coughlin, Assistant Attorney General, Helena, 

Montana; Mike Salvagni, Gallatin County Attorney, 

Marty Lambert, Deputy Gallatin County Attorney, 

Bozeman, Montana; Marcelle Quist, Bozeman, Montana 

Submitted on Briefs: August 3, 1995 

Decided: October 24, 1995 

Filed: 
Justice James C. Nelson delivered the Opinion of the Court. 

Petitioner Robert Burns of the West Yellowstone Police 

Department initiated this suit in the District Court of the 

Eighteenth Judicial District, Gallatin County, for the forfeiture 

of $23,691 seized from a 1991 Ford Explorer on November 15, 1991. 

The District Court entered judgment in favor of the Petitioner for 

$1,98 0, and ordered Claimant Stacy Vanderburg (Vanderburg) to 

forfeit $22,980 to the Drug Forfeiture Fund of the West Yellowstone 

Police Department. The District Court entered judgment in favor of 

Claimant Donna Nelson (Nelson), allowing her to keep $711. 

Vanderburg appeals the judgment ordering the forfeiture. We 

affirm. 

ISSUES 

We address the following issues on appeal: 

1. Did the District Court err in admitting Nelson's 

videotaped deposition? 

2. Did the District Court err in failing to make particular 

findings of fact? 

3. Did the District Court err by failing to base its 

findings of fact and conclusions of law on substantial credible 

evidence? 

BACKGROUND 

On the night of November 10, 1992, Vanderburg, accompanied by 

Nelson, rented room 112 at the Brandin' Iron Motel in West 

Yellowstone, Montana. On the morning of November 11, 1991, a maid 

at the motel notified the West Yellowstone Police Department that 

she found a black suitcase containing a pound of marijuana in room 

112. On the same morning, after discovering that they had left the 
suitcase in the room, Vanderburg and Nelson returned to the motel 

and asked the manager for the suitcase. The manager informed 

Nelson that the police had possession of the suitcase. Vanderburg 

and Nelson drove off. 

The West Yellowstone Police stopped Vanderburg and Nelson 

about six miles north of West Yellowstone and Vanderburg gave them 

permission to search the vehicle. However, before searching the 

vehicle, the police obtained a search warrant. The police found 

$21,000 of United States currency, a loaded handgun, and a bag of 

rubberbands in Vanderburg's briefcase. In Nelson's purse they 

found $1,000 and $980 in bundles of United States Currency. In 

Nelson's wallet they found $711 and Zig Zag cigarette papers. They 

also found a digital electronic scale and the receipt to room 112 

at the Brandin' Iron Motel in the back of the vehicle. 

The West Yellowstone Police arrested Vanderburg and Nelson on 

charges of criminal possession of dangerous drugs with intent to 

sell. While Vanderburg and Nelson were incarcerated, Officer Burns 

overheard Vanderburg telling Nelson that they would be in trouble 

when the police found the scale and that the police would keep the 

money they found in the car because a financial background check 

would show that neither Vanderburg nor Nelson would normally have 

such a large amount of money. 

After a jury trial, Nelson was convicted of possession of 

dangerous drugs with intent to sell. Charges against Vanderburg 

were dismissed after a mistrial and in his case, double jeopardy 

prevented a new trial. 
The West Yellowstone Police Department then filed a petition 

for forfeiture of the $23,691 seized from Vanderburg's vehicle 

pursuant to § 44-12-102 (1) (g) , MCA, which subjects to forfeiture 

proceeds traceable to an exchange of dangerous drugs or proceeds 

used or intended to be used to facilitate a violation of ~itle 45, 

chapter 9, MCA. Vanderburg claims $21,000 of the money taken from 

his briefcase which was seized from the vehicle. Nelson claims 

$711 taken from her wallet which was seized from the vehicle. 

Neither Vanderburg nor Nelson claim the $1,980 taken from Nelson's 

cosmetic bag. 

Vanderburg's and Nelson's statements regarding the money 

conflicted. Nelson claimed that Vanderburg went to West 

Yellowstone to sell marijuana. She further claimed that Vanderburg 

transported the marijuana in five-gallon plastic buckets and that 

she saw two men leaving room 112 carrying the five-gallon buckets. 

Nelson also stated that after they left the motel and before they 

were pulled over, Vanderburg took money out of his briefcase and 

gave it to her. In contrast, Vanderburg claimed that Nelson went 

to West Yellowstone to sell drugs. He also claimed that he 

borrowed the $21,000 in cash from his mother, Judy Cornell, and 

from a family friend, Eleanor Clark, for his school tuition. He 

took the cash with him for safe keeping and took the handgun to 

"fend off some robbers or something." He claimed that he did not 

know of the scale or marijuana before the trial. 

At Nelson's deposition, her attorney instructed her not to 

answer a number of questions. Although the parties did not request 
a transcript, the State's brief included excerpts from Vanderburg's 

attorney's line of questions: 

Were you aware that there was a warrant for your 

arrest for contempt of court?; 

Have you been found in contempt of court for failing 

to successfully complete counseling for DUI? . . . My 

question was whether you were aware of it?; 

Were you, or had you been arrested and found guilty 

of possession of marijuana in the State of Washington?; 

On previous occasion[sic] . . . Did you sell 

marijuana? ; 

Did you, were you in fact known to be a dealer of 

drugs in Spokane, Washington?; 

Are you aware of the fact that you have been accused 

in other court proceedings of being a drug dealer?; 

Isn't it true . . . that your neighbors have filed 

affidavits in which they were, say that you sold drugs 

out of your home? 

Nelson's counsel instructed her not to answer these questions and 

to assert her Fifth Amendment right against self-incrimination. 

The State's attorney objected to the line of questions as violating 

Rules 608 and 609, M.R.Evid. Vanderburg then moved to exclude the 

deposition entirely. At the bench trial, the District Court 

allowed Nelson's videotaped deposition over Vanderburg's 

objections. 

The District Court found Vanderburg's, Judy Cornell's, and 

Eleanor Clark's testimony not credible. Because the West 

Yellowstone Police introduced no evidence that the $711 found in 

Nelson's wallet was used to facilitate the sale of marijuana, the 

District Court found that the money was not proceeds of a drug 

transaction and ordered it released to Nelson pursuant to § 44-12- 

The District Court concluded that Vanderburg failed to rebut 

the presumption of forfeiture by a preponderance of the evidence 
and ordered judgment in favor of the West Yellowstone Police 

Department in the sum of $21,000, which does not include the $1,980 

that neither Vanderburg nor Nelson claimed. The District Court 

entered judgment in favor of Nelson for the $711. Vanderburg 

appeals the judgment granting the forfeiture of $22,980 to the West 

Yellowstone Police Department and releasing $711 to Nelson. 

DISCUSSION 

1. Did the District Court err in admitting Nelson's 

videotaped deposition? 

The standard of review for evidentiary rulings is whether the 

district court abused its discretion. State v. Passama (1993), 261 

Mont. 338, 341, 863 P.2d 378, 380 (citing State v. Crist (1992), 

253 Mont. 442, 445, 833 P.2d 1052, 1054). The District Court has 

broad discretion to determine if evidence is admissible. 

Accordingly, absent an abuse of discretion, we will not overturn 

the district court's determination. Passama, 863 P.2d at 380. 

Citing to no other authority than evidentiary privileges which 

Vanderburg admits do not apply, Vanderburg claims that the District 

Court erred when it admitted Nelson's videotaped deposition. 

Vanderburg supports his claim by stating that Nelson waived her 

Fifth Amendment privilege against self-incrimination, could not 

assert her privilege against self-incrimination after being 

convicted of possession of dangerous drugs, and could not assert 

her privilege against self-incrimination in a civil proceeding. 

Vanderburg fails to explain why the District Court should have 

excluded Nelson's entire deposition when she asserted her Fifth 

Amendment right against self-incrimination only as to certain 

6 
questions asked and he cites no authority for that proposition. 

The State argues that not only did Nelson correctly assert her 

Fifth Amendment privilege against self-incrimination but also that 

the District Court did not abuse its discretion in denying 

Vanderburg's motion to exclude Nelson's testimony. The State 

asserts that had Vanderburg wanted Nelson's testimony, he could 

have moved to compel Nelson to answer the disputed questions rather 

than move to exclude the entire deposition. 

The State correctly argues that the Fifth Amendment's 

protection "covers not only criminal proceedings but also other 

proceedings where compelled testimony could lead to future 

prose~ution.~' Matter of C.L.R. (1984), 211 Mont. 381, 386, 685 

P.2d 926, 929 (citing Lefkowitz v. Turley (1973), 414 U.S. 70, 94 

S.Ct. 316, 38 L.Ed.2d 274). Thus, Nelson's conviction in a prior 

criminal proceeding and the fact that the instant case is a civil 

proceeding have no bearing on Nelson's ability to assert her Fifth 

amendment right against self-incrimination. Nelson had the right 

not to answer questions where the answers could lead to future 

prosecution. As the State suggested, had Vanderburg wanted the 

answers to the questions, he could have moved to compel the 

answers. Instead he moved to strike the entire deposition 

testimony. Vanderburg did not support his unorthodox motion with 

any authority demonstrating why the District Court should have 

excluded the testimony or how the District Court erred in not 

excluding the testimony. 

In addition, the State argues that Vanderburg attempted to 
impeach Nelson's credibility with evidence of prior convictions. 

Evidence of the character and conduct of a witness is generally 

inadmissible. Rule 404 (a) , M.R.Evid. However, Rule 608, 

M.R.Evid., permits character evidence under specific circumstances, 

for example, when the party puts the witness's character for 

truthfulness into issue and then only if the character evidence 

goes to the witnessls veracity. State v. Courville (1989)~ 236 

Mont. 253, 256, 769 P.2d 44, 46. "The exception is narrowly drawn 

in recognition of the opportunities for abuse when evidence of 

specific instances of conduct is offered. Thus the rule admits 

such evidence only on cross-examination and only if probative as to 

a witness's truthfulness or untruthfulness. . . " State v. White 

(1983), 202 Mont. 491, 496, 658 P.2d 1111, 1113 (citing 10 Moore's 

Federal Practice 7 608.21 (3d ed. 1986) ) . A party may not use 

extrinsic evidence of specific instances of misconduct for the 

purpose of attacking the witness's credibility. Courville, 769 

P.2d at 46. "Rule 608 (b) , M.R. Evid., provides that specific 

instances of conduct by a witness, for the purpose of attacking or 

supporting his credibility, may not be proved by extrinsic 

evidence." State v. Gollehon (19931, 262 Mont. 1, 15, 864 P.2d 

249, 258 (citing State v. Norris (1984), 212 Mont. 427, 689 P.2d 

243). 

Moreover, Rule 609, M.R.Evid., specifically prohibits evidence 

of a witness's prior convictions. "This Court has been adamant in 

prior rulings that Rule 609 be strictly enforced." Gollehon, 864 

P.2d at 259. "Rule 609 specifically prohibits admission of 
evidence that a witness has been convicted of a crime for purposes 

of attacking the credibility of the witness." Courville, 769 P.2d 

at 46. 

Gollehon we held that the district court did not abuse its 

discretion by refusing to allow the defendant to inquire into 

evidence of prior crimes committed by one of the State's 

eyewitnesses. Gollehon, 864 P.2d at 259. In White, we held that 

the district court erred "in permitting the interrogation of a 

witness, not a party to the suit, as to past instances of 

misconduct for the purpose of impeaching the witness.'' White, 658 

In the instant case, neither Nelson nor the State put Nelson's 

character for truthfulness into issue. Yet Vanderburg sought to 

elicit answers to questions regarding specific instances of 

misconduct and evidence of prior misconduct. For example, the 

deposition, Vanderburg's attorney asked Nelson: 

Were you, or had you been arrested and found guilty 

of possession of marijuana in the State of Washington?; 

On previous occasion [sic] . . . Did you sell 

marijuana? ; 

Did you, were you in fact known to be a dealer of 

drugs in Spokane, Washington?; 

Are you aware of the fact that you have been accused 

in other court proceedings of being a drug dealer?; 

Isn't it true . . . that your neighbors have filed 

affidavits in which they were, say that you sold drugs 

out of your home? 

Vanderburg clearly sought the answer to these questions to impeach 

Nelson's credibility. The questions were improper and Nelson did 

not have to answer them. We hold the District Court did not abuse 

its discretion in admitting into evidence Nelson's deposition 
testimony that did not have answers to the above referred to 

improper line of questions, which Nelson had the right to refuse to 

answer. 

2. Did the District Court err in failing to make particular 

findings of fact? 

Vanderburg argues that the District Court failed to make at 

least eleven crucial findings of fact. The State counters each of 

the "crucial findings" and contends that the District Court need 

only make those findings upon which the District Court's conclusion 

rests. 

Vanderburg presents eleven additional findings of fact that he 

claims the District Court should have made. For example, 

Vanderburg argues that the District Court should have found that 

Nelson returned to the motel room and asked for suitcase. 

Vanderburg argues that this is a crucial fact because it links the 

marijuana to Nelson. The State, on the other hand, correctly notes 

that although the West Yellowstone Police Officer stated in his 

affidavit that Nelson asked for her suitcase, he testified that the 

clerk at the motel could not remember if Nelson asked for her 

suitcase or for a suitcase. Thus the State argues that the officer 

could not be sure of what Nelson said to the clerk and that the 

critical issue was where the money came from and not who owned the 

suitcase of marijuana. 

Vanderburg also argues that the District Court should have 

found that the $21,000 seized in Vanderburg's car was consistent 

with Vanderburg's expenses for a year at school. The State 

counters Vanderburg's arguments stating that Vanderburg was not 

10 
enrolled in school at the time he was arrested and further that 

Vanderburg claimed that he intended to use the seized money for all 

of his school expenses only after the State introduced evidence 

that Vanderburg was financing his education with school loans. 

Vanderburg's last asserted "crucialu finding of fact was that 

the District Court should have found that Vanderburg could not have 

physically reached his briefcase while driving his car. The State 

notes the evidence established that after Vanderburg left the 

Brandin' Iron Motel and before he was pulled over, he had time to 

stop his car, take money out of his briefcase, and give the money 

to Nelson. 

Although Vanderburg argues that the District Court should have 

addressed these pieces of evidence in its findings, the District 

Court need not address all of the evidence presented. We have held 

that a district court need not specifically address each piece of 

evidence. Tindall v. Konitz Contracting, Inc. (1989), 240 Mont. 

345, 351, 783 P.2d 1376, 1380. In fact, the district court need 

only set forth adequate findings and conclusions so that the 

reviewing court does not have to speculate as to the reasoning for 

the district court's decision. Tindall, 783 P.2d at 1380. Thus 

the essential and determining factors upon which the court's 

conclusions rest are sufficient. Moseman v. Moseman (1992), 253 

Mont. 28, 31, 830 P.2d 1304, 1306. 

The District Court set forth twenty findings of fact and five 

conclusions of law. Without any of Vanderburg ' s "crucial1' findings 

of fact, the District Court provided ample reasoning for its 
decision. We therefore hold that the District Court properly set 

forth the essential and determining facts upon which its 

conclusions rested. 

3. Did the District Court err by failing to base its 

findings of fact and conclusions of law on substantial credible 

evidence? 

Vanderburg alleges that six of the District Court's twenty 

findings of fact were clearly erroneous and thus not based on 

substantial credible evidence and that its conclusions were 

erroneous as a matter of law. In contrast, the State counters that 

Vanderburgls claims are baseless because the findings of fact were 

indeed based on substantial credible evidence and its conclusions 

were correct as a matter of law. 

Our standard in reviewing a district court's findings of fact 

is whether the findings are clearly erroneous. Rule 52 (a) , 

b4.R.Civ.P.; Interstate Production Credit v. DeSaye (1991), 250 

Mont. 320, 322, 820 P.2d 1285, 1287. In DeSave, we adopted a 

three-part test to determine if a finding is clearly erroneous. 

DeSave, 820 P.2d at 1287. The first part of the clearly erroneous 

standard is whether substantial evidence supports the finding. 

DeSave, 820 P.2d at 1287. If that part of the test is met, we need 

go no further. We review a district court's conclusions of law to 

determine whether or not the district court correctly interpreted 

the law. Magone v. Froehlich (1995), 892 P.2d 540, 543, 52 St.Rep. 

240, 242 (citing Steer, Inc. v. Department of Revenue (1990), 245 

Mont. 470, 474, 803 P.2d 601, 603). 

Vanderburg first challenges the District Court's conclusion 
that he failed to overcome the presumption of forfeiture by a 

preponderance of the evidence. Vanderburg alleges that 

preponderance of the evidence is not the correct standard and 

regardless of the correct standard, that he overcame the 

presumption of forfeiture. 

Section 44-12-203, MCA, establishes the presumption of 

forfeiture. It states in part: (1) There is a rebuttable 

presumption of forfeiture as to all property listed in 44-12-102. 

. .I1 The property listed in § 44-12-102, MCA, includes money used 

or intended for use in delivering any controlled substance in 

violation of Title 45, chapter 9, MCA. A claimant may rebut the 

presumption of forfeiture by proving that the property was not used 

for the purpose charged. See § 44-12-204 (I), MCA. Rule 301 (2), 

M.R.Evid., states: 

[A111 presumptions, other than conclusive presumptions, 

are disputable presumptions and may be controverted. A 

disputable presumption may be overcome by a preponderance 

of evidence contrary to the presumption. Unless the 

presumption is overcome, the trier of fact must find the 

assumed fact in accordance with the presumption. 

Additionally, we have held that a presumption remains until 

rebutted by a preponderance of contrary evidence. The presumption 

does not disappear unless the party opposing the presumption 

produces sufficient evidence to preponderate against it. Matter of 

1988 Chevrolet Van (1991), 251 Mont. 180, 183, 823 P.2d 858, 860. 

In the instant case, the District Court correctly applied the 

preponderance of the evidence standard in determining if Vanderburg 

rebutted the presumption against forfeiture and therefore correctly 

interpreted the law. 
In turn, Vanderburg asserts that Magone v. Aul (1994) , 260 

Mont. 281, 887 P.2d 1235, controls the instant case. He argues 

that regardless of the standard used by the District Court, it 

incorrectly concluded that Vanderburg had not overcome the 

presumption of forfeiture. Masone is clearly distinguishable from 

the instant case in part because it involved a motion for summary 

judgment. In Masone, the police officers initiated the forfeiture 

proceedings after the claimant had purchased drugs from an 

undercover police informant. Masone, 887 P.2d at 1236. The party 

that moved for summary judgment provided sworn affidavits rebutting 

the presumption of forfeiture and the non-moving party failed to 

set forth specific facts to create a genuine issue of material 

fact. Masone, 887 P.2d at 1237-38. Our decision hinged on 

uncontroverted affidavits in a motion for summary judgment and we 

held that sworn affidavits stating that the seized money came from 

an anniversary gift that the parents had given to the claimant and 

her husband constituted sufficient evidence to rebut the 

presumption of forfeiture. Masone, 887 P.2d at 1237-38. 

In contrast, the instant case involves varying testimony at a 

bench trial. Vanderburg offered questionable testimony that the 

seized money belonged to Judy Cornell and was not proceeds from the 

sale of drugs. On the other hand, the State provided strong 

testimony and circumstantial evidence including a pound of 

marijuana, a scale, a loaded handgun, and a large amount of cash, 

all linking the money to the sale of marijuana. The District Court 

found substantial credible evidence and correctly interpreted the 
law to conclude that Vanderburg failed to rebut the presumption of 

ture . 

Vanderburg next contends that the District Court's finding 

that Vanderburgls and Judy Cornell's testimony were not credible 

was not based on substantial credible evidence. "This Court will 

not substitute its judgment for that of the lower court regarding 

the credibility of the witnesses and the weight of their 

testimony." Matter of BTB (1992), 254 Mont. 449, 454, 840 P.2d 

558, 560-61 (citing Smith-Carter v. Amoco Oil Co. (1991), 248 Mont. 

505, 510, 813 P.2d 405, 408). Accordingly, we have consistently 

held that it is the province of the trier of fact to determine the 

credibility of witnesses. State v. Black (1995)~ 891 P.2d 1162, 

1167, 52 St.Rep. 215, 218; State v. Flack (1993), 260 Mont. 181, 

189, 860 P.2d 89, 94. In Flack, we held that: 

A trial court acting as a finder of fact is in the best 

position to observe the witnesses, including their 

demeanor and credibility. The weight of the evidence and 

the credibility of the witnesses are exclusively the 

province of the trier of fact and, in the event of 

conflicting evidence, it is within the province of the 

trier of fact to determine which will prevail. 

Flack, 860 P.2d at 94. 

The District Court's determination of the credibility and the 

weight to give to the testimony of Vanderburg, Judy Cornell, and 

Nelson was exclusively within its province as the trier of fact. 

Similarly, the District Court's weighing of the evidence, including 

the discrepancies in testimony was within its province as the trier 

of fact. See Black, 891 P.2d at 1167. The substantial evidence 

available to the District Court supports its finding that Judy 
Cornell's and Eleanor Clark's testimony was not credible. 

We hold that the District Court correctly interpreted the law 

in applying the preponderance of the evidence standard and in 

concluding that Vanderburg failed to rebut the presumption of 

forfeiture. We also hold that the District Court's findings were 

supported by substantial credible evidence. 

Af f irmed. 

1 

We Concur: p.