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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

FILED
Jul 09 2008, 9:15 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: ADRIAN L. KEARNEY, pro se Ypsilanti, Michigan

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana JUSTIN F. ROEBEL Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
ADRIAN L. KEARNEY, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 49A02-0711-CV-00949

APPEAL FROM THE MARION COUNTY SUPERIOR COURT The Honorable Lisa Borges, Judge Cause No. 49F15-9611-FD-173067

July 9, 2008 MEMORANDUM DECISION - NOT FOR PUBLICATION FRIEDLANDER, Judge

Adrian L. Kearney appeals the denial of his motion for return of property, challenging that ruling as the sole issue on appeal. We affirm. The facts are that on November 8, 1996, Kearney was pulled over for a traffic stop, which ultimately led to the discovery of cocaine in his vehicle. After a search of Kearney's person, deputies of the Marion County Sheriff's Department at the scene confiscated $434.00 in cash and two pagers from Kearney's pockets. Kearney was charged with possession of cocaine and pleaded guilty to that offense on October 17, 1997. He was sentenced on November 13, 1997. On August 31, 2006, Kearney submitted a Motion For Return Of Defendant's Property, seeking the return of the cash found in his pocket on November 8, 1996. The trial court denied Kearney's motion following a hearing. Kearney contends the trial court erred in denying his motion for the return of his cash. A trial court's denial of a motion for return of property is reviewed under the clearly erroneous standard. State v. Poxon, 514 N.E.2d 652 (Ind. Ct. App. 1987), trans. denied. "A judgment is clearly erroneous if it applies the wrong legal standard to properly found facts." Kondamuri v. Kondamuri, 852 N.E.2d 939, 944 (Ind. Ct. App. 2006); see also Trial Rule 52(A). In determining whether a judgment is clearly erroneous, we consider only the evidence favorable to the judgment and all reasonable inferences to be drawn therefrom. Miller's Turnkey Transp., Inc. v. Cybertek, Inc., 878 N.E.2d 280 (Ind. Ct. App. 2007). We will not reverse if the judgment is sustainable on any legal theory supported by the record. Merlington v. State, 839 N.E.2d 260 (Ind. Ct. App. 2005). The following facts appear to have been established at the brief hearing conducted on
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Kearney's motion: (1) Deputies took $434.00 from Kearney and that money was never returned; (2) there was no official documentation reflecting that the money had been the subject of forfeiture proceedings; and (3) officials could not locate or account for the money upon receipt of Kearney's motion for its return. At the hearing, the State claimed that Kearney had abandoned and therefore forfeited the money. This argument was based upon police policy and Ind. Code Ann.

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