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State of North Dakota v. $44

August 22, 2012

STATE OF NORTH DAKOTA,
PLAINTIFF AND APPELLEE
v.
$44,140.00 UNITED STATES CURRENCY, BRYEN EDWIN BIRKHOLZ,
DEFENDANTS
BRYEN EDWIN BIRKHOLZ,
APPELLANT



Appeal from the District Court of Morton County, South Central Judicial District, the Honorable Gail H. Hagerty, Judge.

The opinion of the court was delivered by: Kapsner, Justice.

N.D. Supreme CourtState v. $44,140 U.S. Currency, 2012 ND 176

This opinion is subject to petition for rehearing.

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AFFIRMED.

Opinion of the Court by Kapsner, Justice.

[¶1] Bryen Birkholz appeals from a judgment ordering him to forfeit $44,140 in currency seized during a search of his residence and from an order denying his motion for a new trial. Birkholz argues the district court erred in applying the presumptions in N.D.C.C. § 19-03.1-23.3 to currency he claims was seized under the authority of N.D.C.C. § 29-31.1-03. He also claims there was insufficient evidence of a transaction to justify a forfeiture of the currency under N.D.C.C. § 19-03.1-23.3(1)(d) and the court erred in denying his motion for a new trial on the ground of newly discovered evidence. We conclude Birkholz did not raise an issue in the district court about the applicability of the presumptions in N.D.C.C. § 19-03.1-23.3 to this proceeding and may not raise that issue for the first time on appeal. We also conclude the court's findings supporting forfeiture are not clearly erroneous and the court did not abuse its discretion in denying Birkholz's motion for a new trial. We affirm.

I

[¶2] In August 2010, law enforcement officers executed a search warrant for Birkholz's residence and found eleven growing marijuana plants, a hydration system for the plants, three ziploc bags containing various amounts of marijuana, several empty ziploc bags, drug paraphernalia, and $44,140 in currency in a safe in a desk near the marijuana. In May 2011, Birkholz pled guilty to manufacture of a controlled substance, possession of a controlled substance, and possession of drug paraphernalia.

[¶3] Meanwhile, in November 2010, the State brought this civil action against Birkholz for forfeiture of the $44,140 in currency found at his residence. Birkholz answered, claiming he lawfully possessed the currency. After a bench trial, the district court ordered forfeiture of the currency, stating the action was governed by presumptions in N.D.C.C. § 19-03.1-23.3. The court decided the presumption in N.D.C.C. § 19-03.1-23.3(1)(a) was not applicable to the facts in this case, because the currency was not being transported through an airport, on a highway, or at a port-of-entry. However, the court said N.D.C.C. § 19-03.1-23.3(1)(b) and (d) also provided presumptions for forfeiture and found those provisions authorized forfeiture of the currency:

In the present case, law enforcement officers observed marijuana plants growing in front of Mr. Birkholz's residence. A search warrant for his home was obtained. On August 9, 2010, a search was conducted and officers located $44,140 in cash in a desk. Within a few feet, officers located about one-half pound of marijuana. The marijuana was of a better quality than the marijuana which was growing outside the residence. Mr. Birkholz testified he had purchased the marijuana and there were different grades of marijuana.

On May 17, 2011, Mr. Birkholz pleaded guilty to Manufacture of a Controlled Substance in violation of N.D.C.C. § 19-03.1-23, Possession of a Controlled Substance (Marijuana) in violation of N.D.C.C. § 19-03.1-23, and Possession of Drug Paraphernalia (Marijuana) in violation of N.D.C.C. § 19-03.4-03. Mr. Birkholz had been charged with committing those offenses as a result of the search on August 9, 2010.

Mr. Birkholz was in possession of a significant amount of marijuana. He presented evidence in an attempt to establish that the currency was a result of his savings over the years, but the evidence ...


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