Bailey, J.
Case Summary
Edgar Ariel Gonzalez (“Gonzalez”) pled guilty to Possession of Marijuana, as a Class B misdemeanor. [Footnote omitted.] The State filed civil proceedings and obtained forfeiture of $810.00 in Gonzalez’s pocket at the time of his arrest. Gonzalez appeals, presenting the sole issue of whether the State presented sufficient evidence to support the trial court’s forfeiture order. We reverse.
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Gonzalez was charged with and pled guilty to Possession of Marijuana, as a Class B misdemeanor. This does not constitute the commission of, attempt to commit, or conspiracy to commit, any of the nine enumerated offenses of Indiana Code Section 34-24-1-1(d). Consequently, the presumption did not apply based upon Gonzalez’s underlying offense. [Footnote omitted.] The State was required to prove by a preponderance of the evidence that the money was “(A) furnished or intended to be furnished by any person in exchange for an act that is in violation of a criminal statute; (B) used to facilitate any violation of a criminal statute; or (C) traceable as proceeds of the violation of a criminal statute.” I. C. § 34-24-1-1(a)(2). It appears that, without explicitly saying so, the State sought to demonstrate that Gonzalez conspired with others to deal in narcotics.
The record indicates that Gonzalez violated a criminal statute; he possessed marijuana. However, the State did not produce any evidence that the cash found in Gonzalez’s pants pocket was in any way connected to his commission of that crime. Instead, the State focused upon the acts giving rise to the convictions of other persons, apparently under the theory that “the underlying offense” connected to the currency was a conspiracy to deal narcotics. “A material element of conspiracy is the unified or concerted action of two or more persons.” Lane v. State, 259 Ind. 468, 470, 288 N.E.2d 258, 259 (1972).
The State presented evidence as follows: the driver of the detained vehicle had rented it; after the center console was pried open, officers found a substance that changed color during field testing – consistent with a positive test for heroin; one passenger had cocaine in her purse; one passenger had cocaine secreted in her body. When the vehicle occupants were taken into custody, Gonzalez stated that he didn’t know the trip destination but affirmed an officer’s statement that a telephone call was anticipated. He suggested that he might be able to obtain helpful information if officers allowed him to speak with the others. The driver and female passengers pled guilty to felony narcotics charges; Gonzalez did not.
There is no evidence that Gonzalez signed a contract for the rental vehicle or contributed any funds toward the rental. It is not known under what circumstances Gonzalez became a passenger in the vehicle or to what degree anyone shared information with him, beyond the expectation of a telephone call. There is no evidence that he was aware of the hidden compartment in the rented vehicle or the substance stored therein. There is no evidence that he knew one passenger had cocaine in her purse or that another passenger had cocaine on her body. There is no evidence, physical or testimonial, that Gonzalez ever procured, touched, or used the contraband found in the vehicle. In short, there is a lack of evidence that Gonzalez was a co-conspirator with the other vehicle occupants or that his money facilitated their offenses.
In the absence of a criminal conviction other than misdemeanor possession of marijuana, and the absence of evidence that Gonzalez committed an additional offense, the State simply urged the trial court to infer from Gonzalez’s presence in the vehicle that he was a co-conspirator. The inference to be drawn from his proximity to contraband does not go beyond that which would be merely “incidental or fortuitous.” Serrano, 946 N.E.2d at 1143. Without the establishment of a nexus between Gonzalez’s currency and an underlying offense, the civil forfeiture order is outside the “letter and spirit of the law.” Hughley, 15 N.E.3d at 1005. Lacking the requisite proof, the forfeiture order must be reversed.
Reversed.
Vaidik, C.J., and Robb, J., concur.