KELLER, Judge:
William James Smith (Smith) appeals, pro se, from an order of the Hardin Circuit Court directing that $932 in cash seized from him be forfeited. For reasons set forth below, we affirm.
Smith was convicted in 2007, after a jury trial, of first-degree possession of cocaine (subsequent offense), possession of drug paraphernalia (subsequent offense), third-degree possession of hydrocodone, and being a first-degree persistent felony offender. However, the jury did not convict Smith of the additional charge of first-degree trafficking in a controlled substance. Smith appealed to this Court, and we affirmed his judgment of conviction in an unpublished opinion, Smith v. Commonwealth, Case No. 2007-CA-001005-MR, 2008 WL 4683025. Having reviewed the record, we adopt the following facts from Case 2007-CA-001005-MR:
Brown testified that all of the items except for the plastic baggies found in the kitchen cabinet belonged to Smith.
On June 8, 2009, Smith filed a pro se "Motion for Disposition of Seized Property to be Returned Pursuant to KRS ... [sic]." In his motion, Smith moved the trial court to return the $932 seized from
The issue on appeal before this Court is regarding the trial court's findings of fact and conclusions of law and regarding the record made before it. The findings of fact made by a trial court are reviewed under the clearly erroneous standard. Kentucky Rules of Civil Procedure (CR) 52.01. However, rulings of law are reviewed de novo. Jackson v. Commonwealth, 187 S.W.3d 300, 305 (Ky.2006).
On appeal, Smith argues that the trial court erred in ordering the forfeiture of his $932 in cash. Specifically, Smith asserts that the trial court erred in its determination that the Commonwealth established a prima facie case for forfeiture pursuant to KRS 218A.410.
KRS 218A.410(j) applies to the forfeiture of currency. Specifically, it permits forfeiture of "[e]verything of value furnished, or intended to be furnished, in exchange for a controlled substance in violation of this chapter, all proceeds ... traceable to the exchange, and all moneys... used, or intended to be used, to facilitate any violation of this chapter...." Subsection (j) further provides:
It is well-established that the Commonwealth bears the burden of proof in forfeiture actions. Osborne v. Commonwealth, 839 S.W.2d 281 (Ky.1992). To meet its burden of proof and make a prima facie case, the Commonwealth must produce "slight evidence of traceability." Id. at 284. This means that the Commonwealth must "produce some evidence that the currency or some portion of it had been used or was intended to be used in a drug transaction." Id. If the Commonwealth provides additional proof that the currency sought to be forfeited was found in close proximity, then it is deemed sufficient to make a prima facie case. If the Commonwealth establishes its prima facie case, the burden is then on the defendant to rebut this presumption by clear and convincing evidence. Id.
Smith contends that because he was not convicted of trafficking, the Commonwealth failed to meet its burden that the money was being used to further drug activity. We disagree.
In Osborne, the Supreme Court of Kentucky clarified that "nothing in the forfeiture statute requires criminal conviction of the person whose property is sought to be forfeited. It is sufficient under KRS
In this case, the Commonwealth produced some evidence of traceability plus proof of close proximity with illegal drug activity. The police officers recovered the $932 in cash from Smith's pockets. As the trial testimony makes clear, a search of the premises at the time of the arrest of Smith resulted in the finding of the following items: two digital scales, a scanner and documentation of police radio frequencies, multiple cell phones, including two on Smith's person at the time of his arrest, a camera mounted for surveillance use, and the drugs which led to Smith's conviction.
The $932 in cash was noted to be in various small denominations. At the forfeiture hearing, Officer Hodge testified that the denominations indicated use of the money in trafficking. Additionally, there were more than fifty zip lock plastic bags found in a Bud Light cooler bag belonging to Smith. Officer Hodge also testified that such bags are often used for trafficking activities. In light of this evidence, we conclude that the Commonwealth produced at least "slight evidence of traceability." Osborne, 839 S.W.2d at 284 (emphasis added). Accordingly, the trial court's finding that the Commonwealth established a prima facie case for forfeiture was not clearly erroneous.
As the Commonwealth met its burden of production and established a prima facie case, the burden was shifted to Smith to rebut the presumption by clear and convincing evidence. Id. We believe the trial court did not err in concluding that Smith failed to meet his burden.
At the forfeiture hearing, Smith argued that Melissa Stevens (Stevens) "gave" him the money that was seized and that the money was not related to drug activity. In support of his argument, Smith pointed to Stevens' testimony at his probation revocation hearing held on August 8, 2006 in an unrelated case, Case No. 00-CR-00215.
The trial court noted that it reviewed Smith's probation revocation hearing and that it was not persuaded that Stevens gave Smith the $932. Because such credibility determinations are within the exclusive province of the fact-finder, Cole v. Gilvin, 59 S.W.3d 468, 473 (Ky.App.2001), we believe the trial court did not err in concluding that Smith failed to rebut the presumption by clear and convincing evidence.
For the foregoing reasons, we affirm the order of the Hardin Circuit Court.
ALL CONCUR.