Date: 07-26-2020

Case Style:

Case Number: CV-17-0006

Judge: Unassigned

Court: In the District Court In and For Craig County, Oklahoma

Plaintiff's Attorney: Brian Surber

Defendant's Attorney: Robbie Barker

Description: Vinita, OK - In the Application of the State of Oklahoma ex rel. Matthew J. Ballard District Attorney, the State of Oklahoma sought the forfeiture of Sixteen Thousand Five Hundred Four Dollars in U.S. Currency seized by an Oklahoma Highway Patrolman on Mary 25, 2016 claiming that the proceeds were believed to be from the sale of narcotics pursuant to 63 O.S. 2-503 which provides:



A. The following shall be subject to forfeiture:

1. All controlled dangerous substances and synthetic controlled substances which have been manufactured, distributed, dispensed, acquired, concealed or possessed in violation of the Uniform Controlled Dangerous Substances Act;

2. All raw materials, products and equipment of any kind and all drug paraphernalia as defined by the Uniform Controlled Dangerous Substances Act, which are used, or intended for use, in manufacturing, compounding, processing, delivering, importing or exporting, injecting, ingesting, inhaling, or otherwise introducing into the human body any controlled dangerous substance or synthetic controlled substance in violation of the provisions of the Uniform Controlled Dangerous Substances Act;

3. All property which is used, or intended for use, as a container for property described in paragraphs 1, 2, 5 and 6 of this subsection;

4. All conveyances, including aircraft, vehicles, vessels, or farm implements which are used to transport, conceal, or cultivate for the purpose of distribution as defined in the Uniform Controlled Dangerous Substances Act, or which are used in any manner to facilitate the transportation or cultivation for the purpose of sale or receipt of property described in paragraphs 1 or 2 of this subsection or when the property described in paragraphs 1 or 2 of this subsection is unlawfully possessed by an occupant thereof, except that:

a. no conveyance used by a person as a common carrier in the transaction of business as a common carrier shall be forfeited under the provisions of the Uniform Controlled Dangerous Substances Act unless it shall appear that the owner or other person in charge of such conveyance was a consenting party or privy to a violation of the Uniform Controlled Dangerous Substances Act, and

b. no conveyance shall be forfeited under the provisions of this section by reason of any act or omission established by the owner thereof to have been committed or omitted without the knowledge or consent of such owner, and if the act is committed by any person other than such owner the owner shall establish further that the conveyance was unlawfully in the possession of a person other than the owner in violation of the criminal laws of the United States, or of any state;

5. All books, records and research, including formulas, microfilm, tapes and data which are used in violation of the Uniform Controlled Dangerous Substances Act;

6. All things of value furnished, or intended to be furnished, in exchange for a controlled dangerous substance in violation of the Uniform Controlled Dangerous Substances Act, all proceeds traceable to such an exchange, and all monies, negotiable instruments, and securities used, or intended to be used, to facilitate any violation of the Uniform Controlled Dangerous Substances Act;

7. All monies, coin and currency found in close proximity to any amount of forfeitable substances, to forfeitable drug manufacturing or distribution paraphernalia or to forfeitable records of the importation, manufacture or distribution of substances, which are rebuttably presumed to be forfeitable under the Uniform Controlled Dangerous Substances Act. The burden of proof is upon claimants of the property to rebut this presumption;

8. All real property, including any right, title, and interest in the whole of any lot or tract of land and any appurtenance or improvement thereto, which is used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, a violation of the Uniform Controlled Dangerous Substances Act which is punishable by imprisonment for more than one (1) year, except that no property right, title or interest shall be forfeited pursuant to this paragraph, by reason of any act or omission established by the owner thereof to have been committed or omitted without the knowledge or consent of that owner; and

9. All weapons possessed, used or available for use in any manner to facilitate a violation of the Uniform Controlled Dangerous Substances Act.

B. Any property or thing of value of a person is subject to forfeiture if it is established by a preponderance of the evidence that such property or thing of value was acquired by such person during the period of the violation of the Uniform Controlled Dangerous Substances Act or within a reasonable time after such period and there was no likely source for such property or thing of value other than the violation of the Uniform Controlled Dangerous Substances Act.

C. Any property or thing of value of a person is subject to forfeiture if it is established by a preponderance of the evidence that the person has not paid all or part of a fine imposed pursuant to the provisions of Section 2-415 of this title.

D. All items forfeited in this section shall be forfeited under the procedures established in Section 2-506 of this title. Whenever any item is forfeited pursuant to this section except for items confiscated by the Oklahoma State Bureau of Narcotics and Dangerous Drugs Control, the Department of Public Safety, the Oklahoma State Bureau of Investigation, the Alcoholic Beverage Laws Enforcement Commission, the Department of Corrections, or the Office of the Attorney General, the district court of the district shall order that such item, money, or monies derived from the sale of such item be deposited by the state, county or city law enforcement agency which seized the item in the revolving fund provided for in Section 2-506 of this title; provided, such item, money or monies derived from the sale of such item forfeited due to nonpayment of a fine imposed pursuant to the provisions of Section 2-415 of this title shall be apportioned as provided in Section 2-416 of this title. Items, money or monies seized pursuant to subsections A and B of this section shall not be applied or considered toward satisfaction of the fine imposed by Section 2-415 of this title. All raw materials used or intended to be used by persons to unlawfully manufacture or attempt to manufacture any controlled dangerous substance in violation of the Uniform Controlled Dangerous Substances Act shall be summarily forfeited pursuant to the provisions of Section 2-505 of this title.

E. All property taken or detained under this section by the Oklahoma State Bureau of Narcotics and Dangerous Drugs Control, the Department of Public Safety, the Oklahoma State Bureau of Investigation, the Alcoholic Beverage Laws Enforcement Commission, the Department of Corrections, or the Office of the Attorney General, shall not be repleviable, but shall remain in the custody of the Bureaus, Departments, Commission, or Office, respectively, subject only to the orders and decrees of a court of competent jurisdiction. The Director of the Oklahoma State Bureau of Narcotics and Dangerous Drugs Control, the Commissioner of Public Safety, the Director of the Oklahoma State Bureau of Investigation, the Director of the Alcoholic Beverage Laws Enforcement Commission, the Director of the Department of Corrections, and the Attorney General shall follow the procedures outlined in Section 2-506 of this title dealing with notification of seizure, intent of forfeiture, final disposition procedures, and release to innocent claimants with regard to all property included in this section detained by the Department of Public Safety, the Oklahoma State Bureau of Investigation, the Alcoholic Beverage Laws Enforcement Commission, the Department of Corrections, or the Office of the Attorney General. Property taken or detained by the Oklahoma State Bureau of Narcotics and Dangerous Drugs Control, the Department of Public Safety, the Oklahoma State Bureau of Investigation, the Alcoholic Beverage Laws Enforcement Commission, the Department of Corrections, or the Office of the Attorney General shall be disposed of or sold pursuant to the provisions of Section 2-508 of this title. Any money, coins, and currency, taken or detained pursuant to this section may be deposited in an interest bearing account by or at the direction of the State Treasurer if the seizing agency determines the currency is not to be held as evidence. All interest earned on such monies shall be returned to the claimant or forfeited with the money, coins, and currency which was taken or detained as provided by law.

F. The proceeds of any forfeiture of items seized by the Oklahoma State Bureau of Narcotics and Dangerous Drugs Control shall be distributed as follows:

1. To the bona fide or innocent purchaser, conditional sales vendor or mortgagee of the property, if any, up to the amount of his interest in the property, when the court declaring a forfeiture orders a distribution to such person; and

2. The balance to the Bureau of Narcotics Revolving Fund established pursuant to Section 2-107 of this title, provided the Bureau may enter into agreements with municipal, tribal, county, state or federal law enforcement agencies, or other state agencies with CLEET-certified law enforcement officers, assisting in the forfeiture or underlying criminal investigation, to return to such an agency a percentage of said proceeds.

G. Any agency that acquires seized or forfeited property or money shall maintain a true and accurate inventory and record of all such property seized pursuant to this section.


Docket
Date Code Description Count Party Amount
01-25-2017

NOTICE OF SEIZURE & FORFEITURE FILED

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$ 85.00


LAW LIBRARY
$ 6.00


DISPUTE MEDIATION ASSESSMENT
$ 7.00


OKLAHOMA COURT INFORMATION SYSTEM FEE - EFFECTIVE 07/01/04
$ 25.00


OK COURT APPOINTED SPECIAL ADVOCATES
$ 5.00


10% OF CASA TO COURT CLERK REVOLVING FUND
$ 0.50


OK COUNCIL ON JUDICIAL COMPLAINTS REVOLVING FUND
$ 1.55


10% OF COJC TO COURT CLERK REVOLVING FUND
$ 0.16


COURTHOUSE SECURITY FEE
$ 10.00


10% OF CHSC TO COURT CLERK REVOLVING FUND
$ 1.00


STATE JUDICIAL REV. FUND INTERPRETER & TRANSLATOR SERVICES
$ 0.45


15% TO DISTRICT COURT REVOLVING FUND
$ 2.48


LENGTHY TRAIL FUND
$ 10.00
02-28-2017

PROOF OF PUBLICATION

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02-28-2017

CERTIFICATE OF SERVICE

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03-31-2017

CLAIM FOR PROPERTY AND VERIFIED ANSWER

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01-12-2018

LETTER FROM DEFENDANT WITH RESPONSE FROM JUDGE

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01-22-2018

PRO SE INITIATING PARTY'S ENTRY OF APPREARANCE

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01-22-2018

VERIFIED MOTION FOR RETURN OF PERSONAL PROPERTY

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02-20-2018

PRO SE INITIATING PARTY'S ENTYR OF APPEARANCE

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02-20-2018

VERIFIED MOTION FOR RETURN OF PERSONAL PROPERTY

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03-16-2018

PRO SE INITIATING PARTY'S ENTRY OF APPEARANCE

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03-16-2018

INMATE REQUEST

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05-07-2018

PRO SE INITIATING PARTY'S ENTRY OF APPEARANCE

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05-07-2018

PRO SE INITIATING PARTY'S ENTRY OF APPEARANCE

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05-07-2018

COURT MINUTE (COPY MAILED TO DEF WITH COPY OF PRO SE

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INITIATING PARTY'S ENTRY OF APPEARANCE)

06-07-2018

PRO SE INTIIATING PARTY'S ENTER OF APPEARANCE

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06-07-2018

VERIFIED MOTION FOR RETURN OF PERSONAL PROPERTY

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06-29-2018

PRO SE INITIATING PARTY'S ENTRY OF APPEARANCE

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06-29-2018

VERIFIED MOTION FOR RETURN OF PERSONAL PROPERTY

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06-29-2018

LETTER FROM DEF WITH RESPONSE (COPY MAILED TO DEF)

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08-17-2018

ENTRY OF APPEARANCE

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07-09-2019

CM: CR: L. GRIFFIN, JUDGE TAYLOR PRESIDING, BRIAN

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SURBER PRESENT FOR THE STATE, GARY DEAN PRESENT FOR THE



DEFENDANT. CASE SET FOR MOTION DOCKET 9/18/19 @ 10:30.

09-18-2019

CM: NO CR: JUDGE TAYLOR PRESIDING, BRIAN SURBER FOR THE

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STATE. CASE CONTINUED TO 11/20/19 @ 10:30 AM

11-04-2019

MOTION TO DISQUALIFY COUNSEL

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11-04-2019

MOTION TO STRIKE ANSWER OF JAELYN SCHERER

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11-20-2019

CM: CR: L. GRIFFIN, JUDGE TAYLOR PRESIDING, BRIAN

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SURBER FOR THE STATE. ATTY, ROBBI BAKER PRESENT FOR THE



DEFENDANT, CASE SET FOR MOTIONS ON 1/15/20 @ 10:30 AND



FOR PRE-TRIAL HEARING ON 2/19/20 @ 9:00 AM.

11-20-2019

SCHEDULING ORDER

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12-13-2019

MOTION FOR SUMMARY JUDGMENT

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01-13-2020

ANSWER TO STATE'S MOTION TO DISQUALIFY COUNSEL

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01-13-2020

ANSWER TO STATE'S MOTION TO STRIKE ANSWER OF JAELYN

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SCHERER

01-13-2020

ANSWER AND BRIEF IN SUPPORT THEREOF TO DENY PLAINTIFF'S

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MOTION FOR SUMMARY JUDGMENT

01-13-2020

ATTORNEY'S NOTICE OF CHANGE OF ADDRESS

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01-13-2020

CERTIFICATE OF MAILING

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01-15-2020

CM: CR: L. GRIFFIN, JUDGE TAYLOR PRESIDING, STATE BY

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BRIAN SURBER, ROBBI BAKER PRESENT FOR THE DEFENDANTS.



MATTER COMES ON FOR MOTION TO DISQUALIFY COUNSEL,



MOTION TO STRIKE, MOTION FOR SUMMARY JUDGMENT.



ARGUEMENTS HEARD FROM THE PLAINTIFF AND THE DEFENDANTS



ATTY'S. COURT DENIES MOTION TO DISQUALIFY COUNSEL AND



MOTION FOR SUMMARY JUDGMENT. MOTION TO STRIKE IS



OVERRULED. MOTION FOR SUMMARY JUDGMENT IS DENIED. CASE



SET FOR TRIAL 2/19/20 @ 9:00.

01-21-2020

ORDER OVERRULING PLAINTIFF'S MOTION TO DISQUALIFY

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COUNSEL, PLAINTIFF'S MOTION TO STRIKE ANSWER OF JAELYN



SCHERER, AND PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

01-29-2020

CERTIFICATE OF MAILING

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02-07-2020

SUBPOENA AD TESTIFICANDUM

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02-07-2020

SUBPOENA AD TESTIFICANDUM

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02-19-2020

COURT REPORTER FEE
$ 20.00
02-19-2020

STIPULATION AS TO TRIAL FACTS

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02-19-2020

CM: NO CR: B. SURBER APPEARED ON BEHALF OF

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THE STATE; ATTORNEY ROBBI BARKER APPEARED WITH



CLAIMANT JAELYN SCHERER; EVIDENCE AND ARGUMENTS



PRESENTED; BOTH SIDES GIVEN TEN (10) DAYS TO FILE



SUPPLEMENTAL AUTHORITY; MATTER TAKEN UNDER



ADVISEMENT.

02-27-2020

CLAIMANT'S BRIEF REQUESTING RETURN OF $16,504

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02-27-2020

MEMORANDUM OF AUTHORITY

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03-05-2020

TRANSCRIPT FILED OF HEARING HELD 02/19/20

03-18-2020

COURT ORDER

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03-20-2020

DISMISSING COSTS
$ -85.00
03-20-2020 (Entry with fee only) $ -25.00
03-20-2020 (Entry with fee only) $ -10.00
03-20-2020 (Entry with fee only) $ -10.00
03-20-2020 (Entry with fee only) $ -7.00
03-20-2020 (Entry with fee only) $ -6.00
03-20-2020 (Entry with fee only) $ -5.00
03-20-2020 (Entry with fee only) $ -2.48
03-20-2020 (Entry with fee only) $ -1.66
03-20-2020 (Entry with fee only) $ -1.55
03-20-2020 (Entry with fee only) $ -0.45
04-07-2020

CLAIMANT'S APPLICATION FOR ATTORNEY FEES

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05-01-2020

ORDER SETTING HEARING ON CLAIMANT'S APPLICATION FOR

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ATTORNEY FEES

05-28-2020

MOTION FOR HEARING ON APPLICATION OF ATTORNEY FEES TO

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BE CONDUCTED BY VIDEOCONFERENCE

05-28-2020

RESPONSE TO APPLICATION FOR ATTORNEY FEES

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06-05-2020

RESPONSE TO MOTION FOR VIDEO CONFERENCE

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06-09-2020

COURT REPORTER FEE
$ 20.00
06-09-2020

CM: L GRIFFIN CR; JUDGE TAYLOR PRESIDING. BRIAN SURBER

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ANSWER AND BRIEF IN SUPPORT THEREOF TO DENY PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

COMES NOW, Attorney Robbi Barker, representing, Jaelyn Scherer, the only daughter of Trey Hinkle, claiming Innocent Ownership of the cash ($16,504.00), which was seized on
or about May 251 2016, submits her Answer and Brief in support thereof to Deny Plaintiff's

Motion for Summary .luJgrnent anJ ofkrs the following Authority and Arguments.

Authority:

Summary judgment is proper only if the record reveals uncontroverted material facts failing to support any legitimate inference in favor of the nonmoving party. N.C Car.ff' Partnership, Ltd. v. OXY, US'A, Inc., I 996 OK CIV APP 92, 929 P.2d 288. When genuine
issues of material fact exist summary judgment should be denied and the question becomes one for determination by the trier or fact. Brown \'. Oklahoma Swte Bank & Trust ( �o. 1 /' Vinita, 1993 OK 117, 860 P.2d 230; Flowers v. Stanley, 1957 OK 237, 3 I 6 P.2d 840.

Outcome: 06-09-2020

CM: L GRIFFIN CR; JUDGE TAYLOR PRESIDING. BRIAN SURBER

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AND MATT BALLARD FOR THE STATE. ATTY ROBBI BARKER



PRESENT FOR THE DEFENDANT. HEARING HELD, WITNESSES



PRESENTED AFTER ARGUMENT OF COUNSEL COURT AWARDS



$8,520.00 AS REASONABLE ATTORNEY FEES AND COSTS IN THE



AMOUNT OF $104.40. ATTORNEY ROBBI BARKER TO PREPARE



ORDER.

07-10-2020

ORDER AWARDING ATTORNEY FEES AND COSTS

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07-17-2020

CERTIFICATE OF SERVICE

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