Introduction

This commentary examines the Wyoming Supreme Court’s decision in Mickulin v. State, a civil forfeiture appeal concerning $54,226 seized from two vehicles associated with Ronald S. Mickulin. The case squarely presents two recurring issues in Wyoming forfeiture litigation under the Controlled Substances Act, Wyo. Stat. Ann. § 35‑7‑1049: (1) the State’s burden of proof to establish that property is “subject to forfeiture,” and (2) what constitutes the “offense giving rise to the forfeiture” for the statute’s proportionality review. The Supreme Court reversed because the district court applied the wrong burden—preponderance of the evidence—instead of the statute’s clear-and-convincing standard, and it remanded for further proceedings. It also clarified, for guidance on remand, that the “offense giving rise to the forfeiture” is not confined to the offense of arrest or conviction; rather, it is the violation of the Controlled Substances Act that connects the property to drug activity and renders it forfeitable.

The decision reinforces statutory fidelity to the heightened evidentiary threshold in forfeiture actions and dispels a defense theory that the offense scope is limited by the seizure pathway used (i.e., seizure incident to arrest under § 35‑7‑1049(b)(i) versus a probable cause seizure under § 35‑7‑1049(b)(iii)).

Summary of the Opinion

• Holding on burden of proof: The district court erred by evaluating forfeitability under a preponderance-of-the-evidence standard. Under § 35‑7‑1049(k), the State (through the “commissioner”) must prove by clear and convincing evidence the extent to which the property is subject to forfeiture. Because the trial court applied the wrong standard and the record did not permit the Supreme Court to reweigh the evidence at the higher standard, the Court reversed and remanded.
• Guidance on offense scope: The Court rejected the argument that the district court could consider only the misdemeanor possession offenses for which Mr. Mickulin was arrested and convicted when determining forfeitability and proportionality. Reading the statute in pari materia, the Court held that “the offense giving rise to the forfeiture” in § 35‑7‑1049(o) refers to the violation of the Controlled Substances Act that renders the property forfeitable under § 35‑7‑1049(a). Consequently, uncharged conduct such as distribution and conspiracy may be considered in both forfeitability and proportionality analyses, consistent with the in rem nature of civil forfeiture.
• Unreached issues: The Court did not reach the Eighth Amendment excessive fines argument or the ultimate proportionality determination, given reversal for application of the wrong evidentiary standard.

Background and Procedural Posture

Rawlins police stopped Mr. Mickulin in October 2023 for inoperative taillights. A small vial containing cocaine was observed, leading to a search that uncovered cash in envelopes and small quantities of marijuana and paraphernalia, with $23,006 seized from the first vehicle. After Miranda advisements, an initial interview ended upon request for counsel; the next day, following renewed advisements, Mr. Mickulin provided statements describing multi-ounce purchases of cocaine and heroin from out-of-state and in-state sources, acknowledged that about half of the seized cash came from drug distribution, and disclosed additional marijuana in another vehicle. A trained canine alerted to that second vehicle; a warrant search recovered small amounts of controlled substances, a scale, and more cash, totaling $31,220, bringing the aggregate seized currency to $54,226. Criminally, Mr. Mickulin pled to two misdemeanor possession counts and served 20 days in jail.

The State then initiated a civil in rem forfeiture under § 35‑7‑1049(a)(viii), alleging the money was proceeds of drug sales and/or was used or intended to be used to facilitate drug offenses. The district court conducted a one-day bench trial and ordered forfeiture, expressly applying a “preponderance of the evidence” standard to the forfeitability finding. On appeal, the Supreme Court reversed and remanded for application of the correct “clear and convincing evidence” standard, and it provided statutory-interpretation guidance on the scope of “offense” for proportionality.

Analysis

Precedents and Authorities Cited

• Wyoming forfeiture framework
  • Matter of U.S. Currency Totaling $75,000.00, 2023 WY 114, ¶¶ 7–8, 539 P.3d 92 (reaffirming that § 35‑7‑1049 enumerates property subject to forfeiture and that the State bears a clear-and-convincing burden on forfeitability).
  • Matter of U.S. Currency Totaling $470,040.00, 2020 WY 30, ¶¶ 18–19, 459 P.3d 430 (civil forfeiture applies only to property categories deemed forfeitable; § 35‑7‑1049(b) operates as procedural restrictions on seizure, not on substantive forfeitability).
  • State v. $11,346, 777 P.2d 65 (Wyo. 1989) (early articulation that § 35‑7‑1049(b) limits seizure procedures; informs the Court’s current understanding that subsection (b) does not constrain the offense scope at adjudication).
• Standards of proof and review
  • Morningstar v. Robison, 2023 WY 28, ¶ 15, 527 P.3d 241; Gill v. Lockhart, 2022 WY 87, ¶ 29, 512 P.3d 971 (application of correct burden of proof is a question of law reviewed de novo).
  • Matter of Guardianship of GAP, 2022 WY 97, ¶ 19, 515 P.3d 589 (statutory interpretation reviewed de novo).
  • J.J.F. v. State, 2006 WY 41, ¶ 9, 132 P.3d 170; In re Adoption of CF, 2005 WY 118, ¶ 11, 120 P.3d 992 (preponderance means more probable than not; clear and convincing means highly probable).
  • Drake v. McCulloh, 2002 WY 50, ¶ 18, 43 P.3d 578 (trial courts are best positioned to assess witness credibility—supporting remand rather than appellate reweighing).
  • Persuasive authorities on remedy when wrong standard applied: Geels v. Flottemesch, 243 N.E.3d 1069 (Ind. 2024); Terrence E. v. Christopher R., 842 S.E.2d 755 (W. Va. 2020); Maine Eye Care Assocs. v. Gorman, 890 A.2d 707 (Me. 2006) (remand to apply higher standard).
• Statutory interpretation
  • Matter of U.S. Currency Totaling $14,245.00, 2022 WY 15, ¶ 13, 503 P.3d 51; EME Wyo., LLC v. BRW E., LLC, 2021 WY 64, ¶ 23, 486 P.3d 980; Wyo. Jet Center, LLC v. Jackson Hole Airport Bd., 2019 WY 6, ¶ 12, 432 P.3d 910; Matter of Estate of Britain, 2018 WY 101, ¶ 15, 425 P.3d 978 (plain meaning, in pari materia, and harmonization principles).
• Nature of civil forfeiture (in rem)
  • Serrano v. State, 946 N.E.2d 1139 (Ind. 2011); State ex rel. Campbell v. $18,235, 184 P.3d 1078 (Okla. 2008); 36 Am. Jur. 2d Forfeitures & Penalties § 18 (civil forfeiture proceeds against property; independent of owner’s criminal charge or conviction).

Legal Reasoning

1) The burden of proof is clear and convincing for forfeitability

Section 35‑7‑1049(k) requires the commissioner (the Attorney General) to “establish by clear and convincing evidence the extent to which, if any, the property is subject to forfeiture.” The Court emphasized that the district court repeatedly—and not by scrivener’s error—articulated and applied a preponderance standard to the core forfeitability question. Even though the parties themselves correctly briefed and argued the clear-and-convincing standard, the court’s express findings invoked the lesser standard throughout, compelling reversal.

The Supreme Court declined the State’s invitation to affirm by retrofitting the district court’s factual findings to the higher standard. It gave three practical reasons for remand:

• The custodial interview audio, which contained key admissions, was played below but was neither transcribed nor included in the appellate record, undermining appellate reweighing.
• The State elicited admissions that “half” of the money seized from the first vehicle was drug proceeds, while the district court forfeited all $54,226. The statutory directive to determine the “extent to which, if any” property is forfeitable heightens the need for precise, standard-compliant factfinding.
• The district court made no explicit credibility determinations, which are central to a clear-and-convincing analysis and are entrusted to the trial judge.

Bottom line: Forfeitability—i.e., whether the property was drug proceeds or used (or intended) to facilitate a violation—must be proven, and measured in extent, by clear and convincing evidence. Where the wrong standard is applied, the proper remedy is remand to the trial court to apply the correct standard in the first instance.

2) “Offense giving rise to the forfeiture” is the underlying violation connecting the property to drug crime—not necessarily the arrest or conviction offense

Mr. Mickulin argued that because the seizure occurred incident to arrest or pursuant to a search warrant under § 35‑7‑1049(b)(i), the court’s forfeitability and proportionality inquiry should be limited to the misdemeanor possession offenses that led to arrest and conviction. The Supreme Court rejected that interpretation.

First, subsection (b) sets out seizure procedures; it does not limit the substantive offense analysis in a later in rem forfeiture action. As the Court previously recognized in $470,040 and $11,346, subsection (b) imposes procedural restrictions on seizure, not on the scope of evidence or offenses that may be considered at forfeiture adjudication.

Second, reading § 35‑7‑1049(o)’s phrase “offense giving rise to the forfeiture” together with § 35‑7‑1049(a)’s categories of forfeitable property, the Court adopted a plain-meaning approach: “offense” is a violation of law, and in context it is the violation of the Controlled Substances Act that renders the property forfeitable (e.g., proceeds of sales; money used to facilitate distribution). The offense giving rise is therefore the conduct that connects the property to the drug violation, regardless of whether the owner was charged with or convicted of that specific offense.

Third, this conclusion aligns with the in rem nature of forfeiture codified at § 35‑7‑1049(q): proceedings are against the property itself. As other courts have recognized, civil forfeiture can proceed independently of the owner’s criminal prosecution status.

Accordingly, the district court did not err in considering alleged distribution and conspiracy activity in determining both forfeitability and proportionality. On remand, those offenses remain within the permissible scope, subject to the correct burdens of proof.

3) Distinct burdens: forfeitability vs. proportionality

The Court noted, in a clarifying footnote, that while forfeitability requires clear and convincing evidence under § 35‑7‑1049(k), the statute sets a preponderance standard for the State to show that a forfeiture is not “grossly disproportionate” under § 35‑7‑1049(o). The district court cited preponderance in addressing proportionality, indicating it did not conflate the two standards. This sharp distinction will matter on remand and in future cases.

Impact and Practical Implications

For prosecutors and the “commissioner” (Attorney General)

• Expect heightened scrutiny of the evidentiary mosaic connecting property to drug activity. Clear and convincing is a robust standard; conclusory assertions or thin inferences are unlikely to suffice.
• Prove the “extent to which, if any” the property is forfeitable. Where evidence suggests only a portion of currency is drug-derived or facilitative, trial courts must be positioned to make calibrated, partial-forfeiture findings.
• Develop a complete record. Transcribe key audio/video admissions and elicit explicit testimony supporting credibility and reliability to withstand appellate review.
• Uncharged distribution/conspiracy conduct remains fair game for both forfeitability and proportionality, regardless of the seizure pathway used under § 35‑7‑1049(b).

For defense counsel

• Police the burden. Object contemporaneously if the court articulates the wrong standard; request clarifying rulings that the clear-and-convincing standard is being applied to forfeitability and to the “extent” of forfeiture.
• Press the “extent” requirement. If the State’s proof segregates some portions (e.g., the owner admits only “half” was drug proceeds), argue for partial return of unproven sums unless the State proves facilitation as to the balance.
• Challenge reliability and credibility. The Supreme Court highlighted the trial court’s role in credibility assessments; build records that expose gaps, inconsistencies, or innocuous explanations for cash.
• Proportionality remains a live issue on a preponderance standard; marshal the statutory factors (livelihood, value, severity of sanctions, collateral consequences, etc.). Eighth Amendment arguments may be preserved, even if not reached here.

For trial courts

• State and apply the correct standards expressly: clear and convincing for forfeitability (and extent), preponderance for disproportionality.
• Make explicit credibility findings where witness testimony, admissions, or informant corroboration are pivotal to meeting a “highly probable” threshold.
• Consider uncharged but proven drug violations as the “offense giving rise” in § 35‑7‑1049(o). Do not confine the analysis to the offense of arrest/conviction or to the seizure subsection employed.
• Provide reasoned findings that tie each statutory proportionality factor to the record, facilitating meaningful appellate review.

System-wide effects

• This decision consolidates Wyoming’s forfeiture jurisprudence by harmonizing the statute’s procedural seizure provisions with its substantive forfeiture and proportionality standards.
• It may increase instances of partial forfeitures, reflecting the statutory mandate to determine the “extent to which” property is forfeitable.
• It incentivizes careful evidentiary development (including preservation of audiovisual exhibits) and careful drafting of findings and conclusions at the trial level.

Complex Concepts Simplified

• Civil forfeiture (in rem): A lawsuit against property itself, alleging the property is connected to illegal activity. The owner’s criminal conviction is not required; the question is whether the property is sufficiently connected to a drug law violation.
• Preponderance vs. clear and convincing:
  • Preponderance = more likely than not (just over 50%).
  • Clear and convincing = the asserted fact is highly probable (a substantially higher level of certainty).
• Forfeitability vs. proportionality:
  • Forfeitability asks whether the property falls into a statutory category (e.g., proceeds or facilitation money) and to what extent; this requires clear and convincing evidence (§ 35‑7‑1049(k)).
  • Proportionality asks whether, given the offense that makes the property forfeitable, taking that property would be grossly disproportionate; the State bears a preponderance burden to prove it is not (§ 35‑7‑1049(o)).
• “Offense giving rise to the forfeiture”: The underlying violation of the Controlled Substances Act that connects the property to drug activity (e.g., distribution, conspiracy), not necessarily the offense of arrest or the offense charged.
• Seizure subsections (§ 35‑7‑1049(b)):
  • (b)(i): Seizure incident to arrest or under a search/inspection warrant.
  • (b)(ii): Seizure after prior judgment in a proceeding under the Act.
  • (b)(iii): Seizure based on commissioner’s probable cause belief—triggers a prompt probable cause hearing in circuit court.
  • These are procedural gateways to seize property; they do not determine what offenses the district court may consider when adjudicating forfeiture.
• “Extent to which, if any”: The statute expressly contemplates partial forfeiture; courts must calibrate the amount forfeited to the evidence of connection to drug activity.

Conclusion

Mickulin v. State is a significant clarifying decision in Wyoming’s civil forfeiture law. It reaffirms and enforces the legislature’s requirement that the State prove forfeitability—including the precise extent of any forfeiture—by clear and convincing evidence. At the same time, it rejects an artificial narrowing of the “offense giving rise to the forfeiture,” holding that courts may consider uncharged distribution or conspiracy conduct that connects property to drug violations when deciding both forfeitability and proportionality.

Practically, the opinion demands careful trial-level adherence to distinct burdens of proof, robust evidentiary records (particularly where admissions and credibility are central), and reasoned, explicit findings. Substantively, it aligns the proportionality analysis with the statute’s in rem focus on the property’s connection to criminal conduct, rather than on the happenstance of arrest or charging decisions. On remand, and in future cases, courts should expect to see more refined adjudications of “extent” and fuller proportionality analyses anchored in the statutory factors.