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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2000 Term
STATE OF WEST VIRGINIA and MINGO COUNTY
Petitioners below, Appellees,
JILL BURGRAFF and LOTS 221, 222, 223, S.D. 5,
RED JACKET, AND IMPROVEMENTS THEREON,
SITUATED IN MAGNOLIA DISTRICT, MINGO COUNTY,
WEST VIRGINIA, AND MORE PARTICULARLY
DESCRIBED IN DEED BOOK 280, PAGE 602,
Respondent below, Appellant.
Appeal from the Circuit Court of Mingo County
Hon. Michael Thornsbury
Case No. 97C-372
Submitted: October 24, 2000
Filed: December 8, 2000
Darrell V. McGraw, Jr., Esq.
Carter Wiedel, Esq.
Barbara H. Allen, Esq.
Managing Deputy Attorney General
Charleston, West Virginia
Attorneys for Appellees
The Opinion of the Court was delivered PER CURIAM.
Under West Virginia Code,
60A-7-703(a)(6) (1988), the State, in forfeiting property, is required to demonstrate
that there is probable cause to believe there is a substantial connection between
the property seized and the illegal drug transaction. This finding is in addition
to the initial finding of probable cause that an illegal act under the drug law
has occurred. Syllabus Point 5, Frail v. $24,900.00 in U.S. Currency,
192 W.Va. 473, 453 S.E.2d 307 (1994).
In the instant case, the appellees,
the State of West Virginia and the Mingo County Sheriff's Department, filed
a forfeiture action pursuant to the provisions of W.Va. Code, 60A-7-703(a)(7)
 seeking to take ownership by forfeiture of a house and two adjoining
lots that are owned by the appellant, Jill Burgraff. The house and lots are
located in the community of Red Jacket, West Virginia.
The house was the situs of marijuana
sales by Ms. Burgraff's former husband, Danny Burgraff, who pled guilty to a
felony drug delivery charge as a result of the sales and was sentenced to prison.
The forfeiture action was tried before a jury, with the county prosecuting attorney
representing the appellees in the trial. The jury decided that the appellant's
property should be forfeited to the appellees.
The evidence at trial showed
appellant owned her house and lots before she married Danny Burgraff; there
was no evidence at trial that Mr. Burgraff had furnished any money to acquire,
maintain, or improve the house or property.
appellant is disabled; her $494.00 monthly income is entirely from disability
appellant was present during two marijuana sales that occurred in the house,
but she did not actively participate in the sales. In one instance, the appellant
said to the purchaser, a pregnant woman, You don't fool with that stuff,
was no evidence at trial that the appellant was a drug user or seller.
two marijuana sales were for relatively small amounts of money. In the appellant's
house, among her husband's personal effects, the police found a scale, several
hundred dollars, and several small bags of marijuana.
purchase deed for the appellant's house and two lots recited a consideration of
$2,360.00; the actual value of her property was closer to $7,000.00. There was
no evidence that the appellant has any other significant assets.
appellant separated from and divorced Danny Burgraff after he was arrested. He
served a sentence in prison and has been released. The appellant and Mr. Burgraff
have not resumed a relationship.
At trial, the prosecuting attorney
explained to the jury in his opening statement that the jury was being asked to
seize property that represented the fruits of drug dealing. Specifically, the
. . . the Legislature of this
state decided that one of the ways to deter drug transactions was to take away
the fruits of drug dealing . . . it is the policy that the . . . government has
adopted to deter drug dealing to take the fruits away of the drug dealing from
the drug dealers, and that's why we're here today.
Continuing with this theme, the
final words in the prosecutors's closing argument to the jury were:
. . . are we going to let
her profit by people's lives being destroyed by drugs? I ask you to forfeit
As noted above, the forfeiture
proceeding in the instant case was authorized by W.Va. Code, 60A-7-703(a)(7)
, which permits forfeiture of:
All real property, including
any right, title and interest in any lot or tract of land, and any appurtenances
or improvements, which are used, or have been used, or are intended to be used,
in any manner or part, to commit, or to facilitate the commission of a violation
of this chapter punishable by more than one year imprisonment: Provided, That
no property may be forfeited under this subdivision, to the extent of an interest
of an owner, by reason of any act or omission established by that owner to have
been committed or omitted without his knowledge or consent.
This Court has addressed issues
arising under W.Va. Code, 60A-7-703  in one case, Frail v. $24,900.00
in U.S. Currency, 192 W.Va. 473, 453 S.E.2d 307 (1994). In Frail, former
Justice Miller, writing for a unanimous Court, overturned a forfeiture of currency
that had been taken from a man who had been charged with a drug transaction in
another jurisdiction, because there was insufficient evidence presented at trial
to show that the seized money represented the fruits of drug dealing.
We held in Syllabus Point 5 of
Under West Virginia Code, 60A-7-703(a)(6)
(1988), the State, in forfeiting property, is required to demonstrate that there
is probable cause to believe there is a substantial connection between the property
seized and the illegal drug transaction. This finding is in addition to the initial
finding of probable cause that an illegal act under the drug law has occurred.
In the instant case, the jury
was asked to forfeit the appellant's house and lots on the grounds that her property
represented the fruits of illegal drug dealing. However, the evidence at trial showed no monetary or other substantial connection between the appellant's
property and her former husband's drug dealing that would allow a jury to properly
conclude that the appellant's property in fact represented the fruits of illegal
It is the duty of this Court
to uphold a forfeiture that is awarded upon a record that contains adequate
and substantial evidence demonstrating the propriety of the forfeiture. It is
likewise our duty to disallow a forfeiture when there is an insufficiency of
such evidence. Frail, supra.
We are not unmindful of the
harshness of rendering a disabled woman -- who has committed no crime -- homeless.
However, if it were shown that the appellant's modest home in fact represented
the fruits of drug dealing, then a forfeiture based on such a rationale
might be legally sustainable. But such is not the case.
Based on the foregoing reasoning,
the jury's verdict ordering forfeiture of the appellant's house and lots cannot
be sustained. The judgment of the circuit court is reversed.