No. 5-512 / 04-0602Court of Appeals of Iowa.
Filed August 17, 2005
Appeal from the Iowa District Court for Polk County, Gregory Brandt, District Associate Judge.
A claimant appeals from the ruling and order that forfeited his motor vehicle to the State. AFFIRMED.
Joseph Stephen, Newton, appellant pro se.
Thomas J. Miller, Attorney General, Martha Boesen, Assistant Attorney General, John P. Sarcone, County Attorney, and Mark Taylor, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Miller and Hecht, JJ.
MILLER, J.
Joseph Stephen appeals from the district court ruling and order that forfeited his 1990 Pontiac Grand Prix to the State, pursuant to Iowa Code chapter 809A (2003). We review forfeiture proceedings for the correction of errors at law. In re Property Seized For Forfeiture From Williams, 676 N.W.2d 607, 612 (Iowa 2004). However, constitutional issues are reviewed de novo. In re Property Seized from Terrell, 639 N.W.2d 18, 21 (Iowa 2002). Upon our review of this matter, we conclude the district court should be affirmed.
On January 8, 2003, police seized for forfeiture a 1990 Pontiac Grand Prix. At the time of seizure the vehicle was owned by and in the possession of Joseph Stephen. VIP Auto Sales (VIP) held a security interest in the vehicle.
On August 25, 2003, the State filed an in rem forfeiture complaint, and provided notice to both Stephen and VIP of its intent to seek forfeiture of the vehicle. Stephen filed an answer denying the vehicle was subject to forfeiture, and VIP filed a claim for the property. The matter was set for a forfeiture hearing. VIP was provided notice of the hearing. Stephen was not. Prior to the hearing VIP withdrew its claim.
On October 31, 2003, the date set for hearing, the district court entered an order forfeiting the vehicle to the State. In December 2003 Stephen filed a motion to set aside the forfeiture order, asserting he was not present at the October hearing because he had never received notice of the hearing date. The court granted Stephen’s motion, and set the matter for a new hearing.
The second hearing was held on February 27, 2004. Stephen appeared and participated via videoconference. During the hearing the State introduced photographs of items found in Stephen’s vehicle, as well as a lab report that stated one of those items — a bag of white powdery substance — contained no controlled substance. Following the hearing the court entered a ruling and order that again forfeited the property to the State.
The court found that when Stephen’s vehicle was stopped on January 8, the trunk contained the following items: “1) vacuum tube; 2) lithium batteries; 3) camping fuel; 4) plastic bags; 5) vacuum cleaner filters; 6) coffee filters and grinder; and 7) 108.51 grams of a white substance with the appearance of ephedrine.” The court then determined,
In this case there was credible evidence to establish that the items and quantities being transported in the trunk of the vehicle driven by Joe Stephen are illegal precursors used in the manufacturing of methamphetamine, which makes the vehicle forfeitable property.
The burden then shifts to Mr. Stephen to show that he was an innocent owner of the vehicle under Iowa Code Section 809A.5. Mr. Stephen testified that he did not know that the items were in his vehicle and suggested that the items were planted in the vehicle by the police. There is no evidence to substantiate Mr. Stephen’s contention. The Court does not find the testimony of Mr. Stephen credible, therefore he has not established an innocent owner defense.
Stephen appealed. In his combined certificate he asserted he was not required to order a transcript of the hearing because (1) he did not know if the hearing had been recorded, and (2) he could not afford to pay for a transcript. He further stated he would not prepare a statement of the evidence, as allowed by Iowa Rule of Appellate Procedure 6.10(3).
On appeal Stephen asserts he was denied due process of law because he was not allowed “a hearing prior to the seizure.” He asserts the second hearing, in February 2004, was a “post seizure” hearing and thus does not satisfy due process. He further asserts the evidence presented by the State at the second hearing was insufficient to demonstrate his vehicle was subject to forfeiture.
We turn first to Stephen’s due process claim. “Procedural due process requires that before there can be a deprivation of a protected interest, there must be notice and opportunity to be heard in a proceeding that is `adequate to safeguard the right for which the constitutional protection is invoked.'” Bowers v. Polk County Bd. of Supervisors, 638 N.W.2d 682, 690-91 (Iowa 2002) (citation omitted).
It is unclear whether Stephen complains that he did not receive a hearing before his vehicle was seized in January 2003, or whether he asserts his right to due process was violated because he did not receive notice and an opportunity to participate at the first hearing, held in October 2003. If it is the former, the claim has not been preserved. There is no indication in the record that Stephen ever raised a pre-seizure due process claim before the district court, nor is there any indication the district court ever considered or ruled upon such a claim. An issue that was neither presented to nor passed upon by the trial court may not be raised and adjudicated on appeal. Benavides v. J.C. Penney Life Ins. Co., 539 N.W.2d 352, 356 (Iowa 1995). If it is the latter, the claim is without merit. Any due process violation that occurred following the first hearing was cured by vacation of the forfeiture order and Stephen’s notice of and participation in the second hearing. See Bowers, 638 N.W.2d at 690-91.
Turning to Stephen’s sufficiency of the evidence claim, we conclude that our review of this claim is fatally impaired by Stephen’s failure to provide an adequate record for review. When an party asserts that a district court finding or conclusion is not supported by the evidence, he must include a transcript of all evidence relevant to such a finding or conclusion. Iowa R. App. P. 6.10(2)(c). If the proceedings were not recorded or reported, or the transcript is unavailable, a party may submit and secure approval of a statement of the evidence. Iowa R. App. P. 6.10(3). As previously noted, Stephen has provided neither a transcript nor a statement of the evidence.
Stephen has failed in his duty to provide a record that affirmatively discloses the alleged error by the district court See In re F.W.S., 698 N.W.2d 134, 135 (Iowa 2005). Thus, any review of his claim would be improvidently, and inappropriately, grounded in speculation. See id. Stephen’s failure to provide an adequate record precludes him from seeking relief on appeal, and requires this court to uphold the district court’s findings and conclusions. See id. at 136. We accordingly uphold the forfeiture of Stephen’s vehicle.
AFFRIMED.