State v. Black 1999 Lexus ES300

1
No. 102,286

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

BLACK 1999 LEXUS ES300,
VIN JT8BF28G6X5060235,
Appellant.


SYLLABUS BY THE COURT

When considering whether a proposed civil property forfeiture is grossly
disproportionate, the district court must consider the nonexclusive list of factors in K.S.A.
60-4106(c). In doing so, the court may consider related criminal conduct of the defendant
in addition to the crimes specifically facilitated by the property subject to forfeiture.

Appeal from Johnson District Court; GERALD T. ELLIOTT, judge. Opinion filed January 7, 2011.
Affirmed.

Jessica J. Travis, of the Travis Law Firm, L.L.C., of Olathe, and Kristi C. Hartmann, of Putnam
& Hartmann, L.L.C., of Kansas City, Missouri, for appellant.

Steven J. Obermeier, assistant district attorney, and Stephen M. Howe, district attorney, for
appellee.

Before LEBEN, P.J., PIERRON and BUSER, JJ.


2
  LEBEN, J.: After investigating Andrew Wurtz for dealing marijuana, the police
seized his 1999 Lexus ES300 and petitioned to forfeit it since he had used it for selling
drugs. Wurtz stipulated that the car was properly subject to forfeiture but insisted that the
forfeiture be limited in scope under K.S.A. 60-4106(c) because forfeiting the $8,000 car
was grossly disproportionate to the $250 he had gained from the two drug sales
conducted from the car.

But Wurtz' argument fails because the inquiry under K.S.A. 60-4106(c) considers
all of the circumstances, including related criminal conduct not directly involving the car.
The circumstances in Wurtz' case included: Police observing Wurtz possess and sell
marijuana on several occasions in a year; Wurtz admitting to selling marijuana to his
coworkers; and Wurtz also admitting that he routinely purchased what an officer called a
dealer-level amount of the drug. The forfeiture of Wurtz' Lexus worth about $8,000 was
not grossly disproportional to his repeated criminal conduct. Moreover, contrary to
Wurtz' contentions, K.S.A. 60-4106(c) is not unconstitutionally vague because it provides
objective factors to prevent courts from arbitrarily and discriminatorily applying the
statute.

FACTUAL BACKGROUND

Because related criminal conduct can be considered when determining whether a
forfeiture is grossly disproportionate, we must review Wurtz' activities in some detail.

The police had been investigating him for dealing marijuana since April 2007. A
confidential informant had purchased marijuana from Wurtz at Wurtz' house, and the
police had found marijuana in Wurtz' trash. Based on this information, the police
obtained a search warrant for his house. On June 22, 2007, officers went to Wurtz' work

3
to get a house key so they could execute the warrant. Wurtz followed them back to his
house in his 1999 Black Lexus ES300, which the police then searched. The police found
four bags of marijuana that weighed about 1/8th ounce each; the individual packaging
suggested that Wurtz sold the drug for profit, and Wurtz admitted that he occasionally
sold marijuana to his coworkers.

The police then searched his house and found more marijuana and a scale, which
is typically used by those distributing and selling marijuana. Wurtz told the police that he
bought about a pound of marijuana every 2 weeks. In this forfeiture proceeding, an
officer testified that the amount was impossible for one person to consume in 2 weeks
and more consistent with a midlevel dealer. The officer also concluded that the marijuana
was a higher grade, hydroponic marijuana that sells for about 10 times the amount of
regular marijuana. Based on his observations, the officer estimated the value of the
marijuana found in the car to be $400.

The following June in 2008, a confidential informant bought marijuana from
Wurtz twice in a gas station parking lot, once on June 11 and then a second time on June
23. Both transactions took place in Wurtz' Lexus. The informant paid Wurtz $130 in the
first transaction and $120 in the second. Then on June 27, the informant and Wurtz
engaged in a third deal, this time in the informant's car. Wurtz had walked to the
rendezvous location—another gas station parking lot—from another parking lot near his
work. This time, the informant paid $60 for the marijuana. The Lexus was not seen
during this transaction.

A few days later, on July 3, 2008, the police seized Wurtz' Lexus for his use of it
in selling marijuana. The State then petitioned for the car's forfeiture under the Kansas
Standard Asset Seizure and Forfeiture Act. Before trial, the parties stipulated that the

4
vehicle was subject to forfeiture; this left only the question of whether the forfeiture was
grossly disproportionate to Wurtz' conduct, an inquiry the district court conducts pursuant
to K.S.A. 60-4106(c). The district court found that the forfeiture of the car was not
grossly disproportionate to Wurtz' repeated drug sales and the large potential penalty
provided by statute—up to $300,000—for such sales. The court entered judgment against
Wurtz and ordered that the car be released to the police department for its official use.
Wurtz appealed.

Since Wurtz agreed that the State had grounds to forfeit the car, he has limited his
arguments on appeal to the district court's decision that the forfeiture was not grossly
disproportionate to his conduct and his claim that K.S.A. 60-4106(c) is unconstitutionally
vague.

ANALYSIS

I. The Forfeiture of Wurtz' Lexus Was Not Grossly Disproportionate to His Conduct.

Although forfeiture proceedings are civil, they are penal in nature and thus subject
to the excessive-fines clauses of the Kansas and the United States Constitutions. In re Tax
Exemption Application of City of Wichita, 255 Kan. 838, 843, 877 P.2d 437 (1994); see
Austin v. United States, 509 U.S. 602, 604, 125 L. Ed. 2d 488, 113 S. Ct. 2801 (1993);
Kan. Const. Bill of Rights, § 9; U.S. Const. Amend. VIII. K.S.A. 60-4106(c) seeks to
prevent an excessive-fines violation by limiting the forfeiture's scope when the forfeiture
becomes "grossly disproportionate to the nature and severity of the owner's conduct."

The statute includes a list of nonexclusive factors for the court to consider when
making this determination:

5

"(1) The gain received or expected to be received by an owner from conduct that allows
forfeiture; (2) the value of the property subject to forfeiture; (3) the extent to which the
property actually facilitated the criminal conduct; (4) the nature and extent of the owner's
knowledge of the role of others in the conduct that allows forfeiture of the property and
efforts of the owner to prevent the conduct; and (5) the totality of the circumstances
regarding the investigation." K.S.A. 60-4106(c)(1)-(5).

Wurtz contends that the district court erred in considering the drug transactions that
involved Wurtz but did not involve the car; that the court should have used the car's retail
value in making its determination; and that the forfeiture was grossly disproportionate to
the nature and severity of Wurtz' conduct given the car's high retail value and the two
small-dollar drug sales.

We must accept the district court's factual findings when substantial evidence
supports them; we then ask whether the findings support the district court's legal
conclusions. Kansas Highway Patrol v. 1985 Chevrolet Astro Van, 24 Kan. App. 2d 841,
844, 954 P.2d 718 (1998). We do not reweigh evidence or assess witness credibility.
1985 Chevrolet Astro, 24 Kan. App. 2d at 844. In deciding the ultimate legal issues here,
which includes the interpretation of K.S.A. 60-4106(c), we must make an independent
decision without any required deference to the district court. Owen Lumber Co. v.
Chartrand, 283 Kan. 911, 915-16, 157 P.3d 1109 (2007).

We will first discuss the three statutory factors most implicated in this case. We
will then evaluate all of the factors as a whole.

Wurtz' Gain, the Lexus' Facilitation of the Criminal Conduct, and the Overall
Circumstances

6

First, Wurtz' actual gain from the observed sales in his Lexus was only $250. But
Wurtz' additional conduct and admissions indicate that his drug-dealing activities were
ongoing and that he thus expected to gain a lot more from those activities through the use
of his Lexus. The police found $400 worth of marijuana in the car in June 2007. At that
time, Wurtz admitted to buying dealer-level amounts of the drug and admitted that he
sold the drug to his coworkers. More high-grade marijuana was found in his house. A
year later, he was still engaging in sales of the drug, some of which were in conducted in
the Lexus.

Wurtz insists that it's improper to consider the two events not involving the
vehicle—the drugs found in a search of his house and the sale in the informant's car—
when deciding whether the forfeiture was proportional. He maintains that we cannot
consider these events since they couldn't be a basis for forfeiting the vehicle, i.e., the car
didn't "facilitate" the criminal conduct in those instances. The State argues that the
vehicle was used to facilitate these transactions since it could be inferred that Wurtz
needed his Lexus to transport the marijuana to his home and to transport himself to the
last confidential informant drug buy.

Both parties unduly limit the inquiry that must be made under K.S.A. 60-4106(c).
Whether the car facilitated the criminal conduct determines if it can be forfeited in the
first place—an inquiry conducted pursuant to K.S.A. 60-4105. Here, the parties have
already stipulated that Wurtz' Lexus was subject to forfeiture.

On the other hand, a plain reading of K.S.A. 60-4106(c) reveals that it doesn't
require the court to limit its grossly disproportionate analysis to only those instances that
the forfeiture property facilitated. The "extent to which the property actually facilitated

7
the criminal conduct" is only one of several factors to be considered; the statute instructs
that we also consider the nature and severity of the owner's conduct and "the totality of
the circumstances regarding the investigation." "Investigation" is broad enough to
encompass the police observations of all of Wurtz' drug dealings, including those not
directly involving the car. See Black's Law Dictionary 902 (9th ed. 2009) ("investigate"
means to make a suspect the subject of a criminal inquiry).

The United States Supreme Court and other jurisdictions consider the defendant's
other criminal conduct when making analogous grossly disproportionate analyses. See
United States v. Bajakajian, 524 U.S. 321, 338, 141 L. Ed. 2d 314, 118 S. Ct. 2028
(1998) (consider whether violation is related to other illegal activities); United States v.
Sabhnani, 599 F.3d 215, 262 (2d Cir. 2010) (consider the offense committed and its
relation to other criminal activity); United States v. Bader, 2010 WL 2681707, *1 (D.
Colo. 2010) (same); Howell v. State of Ga., 283 Ga. 24, 26, 656 S.E.2d 511 (2008)
(same).

The State also contends that Wurtz cannot now object to the consideration of these
other drug-related events since he did not object when evidence about them was admitted
at trial. Wurtz replies that he raised the issue of the evidence's admissibility in his pretrial
documents and trial arguments. But it is irrelevant whether Wurtz made an objection
below since the issue is not whether the evidence should have been excluded, either
because it is immaterial, irrelevant, hearsay, improper character evidence, unduly
prejudicial, etc. See State v. Riojas, 288 Kan. 379, 383, 204 P.3d 578 (2009) (the first
step to admissibility is to determine if the evidence is relevant; then, the statutory rules
governing the admission and exclusion of evidence are applied). Rather, the question is
whether a district court is allowed to consider such evidence in its grossly
disproportionate analysis. We conclude that it is proper to consider the police officers'

8
entire investigation of Wurtz' drug activity in making the grossly disproportionate
analysis, including instances not explicitly involving the Lexus.

Another consideration relevant to the investigation's circumstances and the
severity of Wurtz' conduct is the potential penalty for the criminal conduct. The district
court noted that Wurtz faced a $300,000 potential penalty for each transaction that
involved the car. This is the statutory maximum fine for possessing marijuana with the
intent to sell. See K.S.A. 21-4503a(a)(2) (severity level 3 drug crimes have a maximum
penalty of $300,000); K.S.A. 2009 Supp. 21-36a05(c)(1) (possessing marijuana with the
intent to sell is a severity level 3 felony). We cannot agree with the district court that the
statutory maximum fine is of significance in Wurtz' case. Fines are of course subject to
constitutional excessive-fines analysis, which itself is analogous to the grossly
disproportionate analysis the legislature has provided for in K.S.A. 60-4106(c). In
addition, K.S.A. 21-4607 places significant other limits on the imposition of fines,
including that the court must take into account the defendant's financial resources and the
nature of the burden the fine will impose on the defendant. To factor the potential fine
into proportionality analysis, the district court must first consider the limitations on fines
in K.S.A. 21-4607. Nothing in our record suggests that the district court would have
rendered a fine anywhere near the statutory maximum (if a fine were imposed at all) in
the criminal case against Wurtz for the activities noted in this opinion. Because we find
the forfeiture of Wurtz' car legal even without consideration of any fine that could have
been imposed, we need not give further consideration to the potential fine.

The Lexus' Value

Wurtz showed that he paid $8,700 for the Lexus in March 2007 and that the Kelly
Blue Book's suggested retail value of the car was $8,835 in December 2008. At one

9
point, the State showed that the car had a blue book value of $7,800. It's unclear whether
this was the car's trade-in, private-party, or retail value. The district court used an $8,000
value when determining the forfeiture's proportionality; that amount is within the range
of values shown by the parties.

Wurtz contends that the district court should have used the car's $8,835 suggested
retail value since that value adequately represents the punishment the forfeiture would
impose on him. Some courts have used the vehicle's fair market value in their
proportionality inquiries. Spears v. State, 929 So. 2d 477, 478 (Ala. Civ. App. 2005); In
re Forfeiture of 1990 Chevrolet Blazer, 684 So. 2d 197, 201 (Fla. App. 1996); Nez Perce
County Prosecuting Attorney v. Reese, 142 Idaho 893, 899, 136 P.3d 364 (Idaho App.
2006); In re Forfeiture of Property of Anderson-Melton, 2000 WL 1720443, *2 (Ohio
App. 2000) (unpublished opinion). One court has used the vehicle's retail value. State v.
One '95 Silver Jeep Grand Cherokee, 712 N.W.2d 646, 648-52 (S.D. 2006). But most
haven't specified which value is proper and have just discussed the vehicle's value in
general. See, e.g., Alexander v. State, 925 So. 2d 214, 215 (Ala. Civ. App. 2005); One
1995 Toyota Pick-Up v. District of Col., 718 A.2d 558, 564 (D.C. 1998); One Car, 1996
Dodge X-Cab Truck v. State, 122 S.W.3d 422, 426 (Tex. App. 2003.

For our discussion, we use the $8,000 value since it was the district court's
determination and there was evidence to support it. This is not the right case in which to
settle a disagreement about whether trade-in value, value shown by a sale between private
parties, or retail value is the proper measure. First, our record is unclear about the basis
for the value that the State presented, and the district court apparently relied on it to
support its value. Second, we find no difference in our analysis whether we use the value
the district court used, $8,000, or Wurtz' suggested value, $8,835.


10
The Forfeiture of Wurtz' Lexus Was Not Grossly Disproportionate to the Crime.

In sum, K.S.A. 60-4106(c) provides five nonexclusive factors to be considered,
which we now apply in order to his case. First, Wurtz received a gain from the specific
conduct that allows forfeiture, the use of his car to facilitate a drug sale. That gain was
$250. Second, his car, the property subject to forfeiture, is worth $8,000. Third, the car
was directly used in facilitating the drugs worth $250 sold directly from the car; it seems
likely that the car was also used in transporting drugs sold outside the car. Fourth, Wurtz
knew that he was using the car to facilitate drug sales. Fifth, during the overall
investigation of Wurtz' activities, he regularly bought high-grade marijuana in quantities
consistent with being a midlevel dealer, and he admitted that he sold marijuana to others.
With or without using the car, Wurtz had been involved consistently in selling marijuana.
Taking the full picture of Wurtz' actions in context, we conclude that the forfeiture of his
car was not a grossly disproportionate punishment. See City of Hoisington v. $2,044 in
U.S. Currency, 27 Kan. App. 2d 825, 8 P.3d 58 (2000) (finding forfeiture of $2,044 in
cash found on defendant not disproportionate to offense of possession of
methamphetamine and drug paraphernalia found on her person).

II. K.S.A. 60-4106(c) Is Not Unconstitutionally Vague.

Wurtz also contends that K.S.A. 60-4106(c), which we have just discussed and
analyzed, is unconstitutionally vague. He argues that the statute does not provide explicit
standards for the court to use when deciding whether the forfeiture was grossly
disproportionate.

The State argues that this court should not consider the issue since Wurtz is raising
it for the first time on appeal, but the vagueness argument addresses Wurtz' due-process

11
rights, so he has met an exception to the general rule, and this court can decide the issue.
See Aten v. Kansas Dept. of Revenue, 29 Kan. App. 2d 30, 32, 22 P.3d 1077, rev. denied
271 Kan. 1035 (2001) (an exception exists when considering the issue is necessary to
prevent the denial of fundamental rights).

Whether a statute is unconstitutionally vague is a question of law subject to
unlimited review on appeal. State v. Rupnick, 280 Kan. 720, Syl. ¶ 9, 125 P.3d 541
(2005). A statute's constitutionality is presumed, and it is the court's duty to uphold an
attacked statute. 280 Kan. at 736. If a reasonable way to construe the statute exists, this
court should construe it in that manner. 280 Kan. at 736.

Kansas courts apply a two-part test to determine whether a statute is
unconstitutionally vague. First, the statute should give a person of ordinary intelligence a
reasonable opportunity to know what conduct is prohibited. Second, the statute should
prevent arbitrary and discriminatory enforcement by providing explicit standards for its
enforcement. 280 Kan. at 737; State v. Martis, 277 Kan. 267, 298, 83 P.3d 1216 (2004).

Given these factors, we find no merit to Wurtz' argument. Wurtz knew what
conduct was forbidden; he conceded that his car was subject to forfeiture. In addition, the
statute provides several objective factors for the court to consider when deciding whether
a statutorily authorized forfeiture is grossly disproportionate. The statute provides fair
warning of the forbidden conduct and provides sufficient safeguards against
discriminatory enforcement. See LaFave, 1 Subst. Crim. L. § 2.3 (2d ed. 2003 & 2010
Supp.).


12
The forfeiture of Wurtz' Lexus was not grossly disproportionate to his conduct,
and K.S.A. 60-4106 is not unconstitutionally vague. We therefore affirm the judgment of
the district court.