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King v. State

Court of Appeals of Arkansas, Division II

October 22, 2014

CLYDE RAY KING and EILEEN MCMURRAY, APPELLANTS
v.
STATE OF ARKANSAS, APPELLEE

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SECOND DIVISION. NO. CV2012-3795. HONORABLE CHRISTOPHER CHARLES PIAZZA, JUDGE.

Steven R. Davis, for appellant.

Dustin McDaniel, Att'y Gen., by: Karen Virginia Wallace, Ass't Att'y Gen., for appellee.

BILL H. WALMSLEY, Judge. PITTMAN and HIXSON, JJ., agree.

OPINION

Page 127

BILL H. WALMSLEY, Judge

Appellants Clyde King and Eileen McMurray appeal from the Pulaski County Circuit Court's order granting the State's petition for forfeiture with respect to two vehicles. Appellants argue that there was insufficient evidence to support forfeiture of either vehicle and that the trial court failed to exercise its discretion in ordering forfeiture. We affirm.

Arkansas Code Annotated section 5-64-505(a) (Supp. 2011) provides that items subject to forfeiture include a conveyance, such as a vehicle, that is 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 subdivisions (a)(1) or (2) of this section. Subdivision (a)(1) is any controlled substance that has been manufactured, distributed, dispensed, or acquired in violation of this chapter.

At the forfeiture proceedings, Investigator Mike Brooks with the North Little Rock Police Department testified that he investigated a complaint that King was selling prescription medication. Brooks testified that he arranged to meet King for a drug purchase on May 8, 2012, and that King arrived in a BMW that " turned out to be a 2003 BMW that was subsequently seized." King sold Brooks 10 oxycodone pills for $300. Brooks testified that at another drug purchase on May 16, 2012, King arrived in an '80s model Cadillac and sold him 10 oxycodone pills for $280. Brooks arranged for a third meeting to buy more oxycodone. King arrived in the Cadillac and was arrested. Officers found

Page 128

forty-six oxycodone pills and fourteen methadone pills in King's possession. In an interview with police, King admitted selling prescription drugs for a profit. According to King, he used a small number of the pills and sold the rest. King also told police that he owned the Cadillac and the BMW and that he allowed his girlfriend, Eileen McMurray, to drive the BMW.

King testified that he is a disabled veteran suffering from PTSD, degenerative-disc disease, and other ailments. King asserted that he had a valid prescription for oxycodone and methadone from two doctors. King testified that he was in a vulnerable state when Brooks contacted him to arrange a drug purchase in that his mother had suffered a stroke and needed money for medication and admission to a nursing home. After his cars were seized, King could no longer visit his mother nor could he receive treatment for his service-connected disabilities. King testified that he bought the BMW with his VA back pay and that he considered it to be McMurray's car. He stated that he had driven the BMW at times but that McMurray knew nothing about the drug transactions.

McMurray testified that she had been friends with King for six or seven years and that hearing about King's arrest " was enough to flip [her] wig." McMurray stated that King had bought the BMW for her and that she drove it to her workplace and to church, used it to make house calls in connection with her job as a counselor, and needed the car to perform community service. McMurray testified that buying another vehicle would put a financial strain on her.

Forfeiture is an in rem civil proceeding, independent of any pending criminal charge, to be decided by a preponderance of the evidence. Ridenhour v. State, 98 Ark.App. 116, 250 S.W.3d 566 (2007). Because the forfeiture statute is penal in nature, and forfeitures are not favorites of the law, the statute is construed narrowly on appeal. Id. The trial court's decision granting forfeiture will not be set aside unless it is clearly erroneous. Id. A trial court's decision is clearly erroneous when, although there is evidence to support ...


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