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State v. Horning

Supreme Court of North Dakota

January 14, 2016

State of North Dakota, Plaintiff and Appellant
v.
Karl Andrew Horning, Defendant and Appellee

Appeal from the District Court of McLean County, South Central Judicial District, the Honorable Bruce B. Haskell, Judge.

Ladd R. Erickson, State's Attorney, Washburn, ND, for plaintiff and appellant; submitted on brief.

Michael R. Hoffman, Bismarck, ND, for defendant and appellee.

Daniel J. Crothers, Lisa Fair McEvers, Carol Ronning Kapsner, Dale V. Sandstrom, Gerald W. VandeWalle, C.J.

OPINION

Page 922

Daniel J. Crothers, Justice.

[¶1] The State appeals from a district court order denying forfeiture of $16,420 in U.S. currency seized by law enforcement during a traffic stop. The State argues Karl Horning lacks standing to contest the forfeiture and the district court erred in relying on acquittal of one of the charges. Horning argues the State has no right to appeal. We reverse and remand.

I

[¶2] Deputy Sheriff Rich Hoffer stopped Horning after he failed to stop at a stop sign. Hoffer searched the vehicle when a drug detection dog indicated illegal drugs were present. Hoffer found a cooler on the front passenger floorboard containing a car title, cell phone, syringes, drug paraphernalia, marijuana, methamphetamine and a bag containing $15,960 in cash. Hoffer searched Horning and found an additional $460 in cash, a syringe cap and a marijuana smoking device.

[¶3] Before trial the State filed a motion under N.D.C.C. § § 29-31.1-08 and 09 to forfeit the cash seized in the traffic stop. Before the district court ruled on the motion, a jury found Horning guilty of possession of marijuana, possession of marijuana paraphernalia and possession of methamphetamine paraphernalia, but not guilty of possession of methamphetamine with intent to deliver. After sentencing, the district court granted the State's forfeiture motion and Horning filed a motion to reconsider. The district court granted Horning's motion to reconsider, vacated its earlier order and denied the State's motion to forfeit the currency. The State appeals.

II

[¶4] " Chapter 29-31.1, N.D.C.C., allows for the forfeiture and disposition of certain seized property related to a criminal offense." State v. Bergstrom, 2006 ND 45, ¶ 11, 710 N.W.2d 407. The State moved to forfeit the $16,420 under N.D.C.C. § 29-31.1-09, which provides in relevant part: " In the case of forfeitable property seized and held as evidence of the commission of a criminal offense, the court in which a criminal prosecution was commenced may issue its order, upon motion and after hearing unless waived, for disposition of the property in accordance with this chapter . . . although no separate forfeiture proceeding is required to be instituted under this section, all other provisions of this chapter apply to proceedings commenced pursuant to this section." This statute specifically deals with the forfeiture of property held as evidence and " allows for forfeiture by motion after a criminal prosecution has commenced." State v. Koble, 2000 ND 29, ¶ 8, 606 N.W.2d 521.

[¶5] Horning moves to dismiss, alleging the State's appeal is not authorized by law. " In a criminal case, the State's right to appeal is strictly limited by statute." State v. Peterson,2011 ND 109, ¶ 5, 799 N.W.2d 67. Under N.D.C.C. § 29-28-07(5), the State is allowed to appeal from: " An order granting the return of property or ...


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