Cleveland v. Fulton

• Decision Date: 18 September 2008
• Docket Number: No. 90288.,90288.
• Citation: 2008 Ohio 4702,178 Ohio App.3d 451,898 N.E.2d 983
• Parties: CITY OF CLEVELAND, Appellee, v. FULTON, Appellant.
• Court: Ohio Court of Appeals

898 N.E.2d 983

178 Ohio App.3d 451

2008-Ohio-4702

CITY OF CLEVELAND, Appellee, v. FULTON, Appellant.

No. 90288.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Decided September 18, 2008.

Victor R. Perez, City of Cleveland Chief Prosecuting Attorney, Gina M. Villa, Assistant City Prosecuting Attorney, Robert J. Triozzi, Director of Law, and Kevin J. Gibbons, Assistant Director of Law, for appellee.

Robert L. Tobik, Cuyahoga County Public Defender, and John T. Martin and Christina M. Gary, Assistant County Public Defenders, for appellant.

BOYLE, M.J., Judge.

{¶ 1} Defendant-appellant, Antonio Fulton, appeals from a judgment of the Cleveland Municipal Court denying his motion for return of property and granting the city's petition for forfeiture. For the following reasons, we reverse and remand.

{¶ 2} On April 18, 2007, the city of Cleveland charged Fulton with using weapons while intoxicated, failing to secure dangerous ordnance, and endangering children. Fulton entered a plea of not guilty to the charges, and the case proceeded to a bench trial.

{¶ 3} Two Cleveland police officers testified at trial that when they approached Fulton at the scene, he promptly informed them that he had a valid Ohio license to carry a concealed handgun. The officers then confiscated his FN Herstal 5.7 mm handgun.

{¶ 4} At the close of the city's case, Fulton moved for a Crim.R. 29 acquittal on all three charges, which the trial court granted in full. After the trial court dismissed all charges against Fulton, he orally requested the court to return his handgun. Rather than release it to him, the court instructed him to file a motion.

{¶ 5} On June 11, 2007, Fulton moved the court for a return of his handgun. The city filed a petition for forfeiture of the gun a few days later. The parties orally agreed to the trial court deciding the issue upon submission of the briefs. The trial court granted the city's petition and ordered that Fulton's handgun be forfeited. It is from this judgment that Fulton appeals, raising a sole assignment of error:

{¶ 6} "The trial court erred when it denied Mr. Fulton's post-acquittal motion for return of property that was taken from him as part of the investigation of a crime that he did not commit."

{¶ 7} The city petitioned the court for forfeiture of the handgun pursuant to R.C. 2933.43(C) and Cleveland Codified Ordinance ("CCO") 674.02.¹ Fulton argues that this statute and ordinance apply only to criminal forfeitures and that since he was acquitted of all charges, they do not apply. We agree. The city concedes as much in its brief to this court.

{¶ 8} Although the city concedes that criminal forfeiture does not apply, it maintains that the trial court ordered that Fulton's handgun be forfeited under the civil forfeiture statute, R.C. 2933.41(C)(2). The city contends that it cited this provision in its petition and argued it alternatively. The record confirms that the city did argue this provision, as well as the criminal forfeiture provision.

{¶ 9} It is not clear, however, which statute the trial court relied upon when granting the city's petition. At a hearing, the trial court stated:

{¶ 10} "The Court doesn't find all of that about the attachment for the double jeopardy purposes. The Court finds, given the nature of the gun and also in light of the fact, at the time, the gun was not registered, this Court would be irresponsible to allow that gun to be released into this community.

{¶ 11} "The Court felt that the defendant should have been charged with Discharging a Firearm. He was found not guilty because he was not charged.[²]

{¶ 12} "The Court is not going to turn it's [sic] eye to the fact that it's a very dangerous gun. I'm not going to release it. It should have been registered and it wasn't, therefore, the city's petition to forfeit the gun is granted. Gun not to be returned."

{¶ 13} The city maintains that in order for civil forfeiture under R.C. 2933.41(C)(2) to apply, "the only evidence that needed to be `adduced' at the hearing was the fact [undisputed by appellant] that the handgun was unregistered." The city claims that Fulton's "failure to register this handgun caused it to become contraband per se." Therefore, the city contends that it was unlawful for Fulton to possess it under R.C. 2933.41(C)(2).

{¶ 14} Fulton argues that civil forfeiture was not available, because the city did not file a civil complaint for forfeiture. If the city had, he maintains, the case would have been assigned randomly and "not necessarily to the judge who presided at the criminal trial." Fulton further argues that even if the trial court could properly consider the civil forfeiture statute, R.C. 2933.41(C)(2) does not apply.³

TO APPLY R.C. 2981 OR NOT TO APPLY

{¶ 15} We agree with the city that there is nothing in R.C. 2933.41 that requires "a separate civil forfeiture action be filed." Fulton argues, however that the new civil forfeiture statute, R.C. 2981.05, requires that a civil forfeiture petition be filed separately. We agree that it does. For the following reasons, however, we will apply R.C. 2933.41(C)(2), the civil forfeiture statute that was in effect at the time the petition was filed.

{¶ 16} The laws regarding forfeiture significantly changed when the General Assembly adopted R.C. Chapter 2981, effective July 1, 2007. Specifically, R.C. 2981.05(A) requires the prosecutor to file a civil forfeiture petition "in the court of common pleas of the county in which the property is located."

{¶ 17} Fulton argues that this court should follow State v. Clark, 173 Ohio App.3d 719, 2007-Ohio-6235, 880 N.E.2d 150, and apply the new civil forfeiture law. In Clark, the Third District explained that "the legislation accompanying R.C. 2981.01 to 2981.14, Section 4 of 2006 H 241 specifically provides as follows:

{¶ 18} "`Sections 1, 2, and 3 of this act shall take effect on July 1, 2007. If a criminal or civil forfeiture action relating to misconduct under Title XXIX of the Revised Code was or is commenced before July 1, 2007, and is still pending on that date, the court in which the case is pending shall, to the extent practical, apply the provisions of Chapter 2981 of the Revised Code in the case.'" Clark at ¶ 15.

{¶ 19} The Third District, "[p]ursuant to the directives of Section 4 of 2006 H 241," reversed the trial court's order of forfeiture because the trial court did not hold a hearing. Clark at ¶ 16. Although R.C. 2933.41 does not require the trial court to hold a hearing for civil forfeitures, the new laws regarding forfeiture provide the parties a right to a jury trial. See R.C. 2981.08.

{¶ 20} In this case, however, the parties waived (by oral agreement) any right to a hearing they may have had under the new statute. Accordingly, Clark is not applicable, and this court will analyze the forfeiture in this case under R.C. 2933.41(C)(2), and not R.C. Chapter 2981.

CIVIL FORFEITURE: R.C. 2933.41(C)(2)

{¶ 21} As a general rule, forfeiture statutes and statutes that result in the taking of private property must be strictly construed against the law-enforcement agency seeking to have the property forfeited or disposed. State v. Lilliock (1982), 70 Ohio St.2d 23, 25, 24 O.O.3d 64, 434 N.E.2d 723. R.C. 2933.41(C) is a statute that provides for the deprivation of a defendant's right to possession of property.

{¶ 22} Under R.C. 2933.41(C)(2), a person may lose possession and/or ownership of such property if:

{¶ 23} "A court determines that the property should be forfeited because, in light of the nature of the property or the circumstances of the person, it is unlawful for the person to acquire or possess the property."

{¶ 24} In Dayton v. Boddie (1984), 19 Ohio App.3d 210, 211, 19 OBR 354, 484 N.E.2d 171, the Second District Court of Appeals explained:

{¶ 25} "There is no law making every weapon a contraband, possession of which is per se illegal. There are laws that under certain conditions possession of property such as drugs or firearms are illegal. These are personal conditions or personal circumstances incidental to the subject possessed irrespective of its use. For example, acquisition and possession of a firearm are denied to persons who have been convicted of specific crimes of violence. This is what is intended in the second test in R.C. 2933.41(C)(2). It is the circumstances of the person that converts an otherwise lawful possession into one that casts the penalty of forfeiture upon either its acquisition or possession."

{¶ 26} Thus, under R.C. 2933.41(C)(2), this court must determine if either (1) the nature of the handgun itself or (2) the circumstances of Fulton make it unlawful for Fulton to acquire or possess the handgun.

CIRCUMSTANCES OF THE PERSON: FULTON

{¶ 27} "Circumstances of the person" under R.C. 2933.41(C)(2) has been interpreted to refer to a legal disability of some sort. Chagrin Falls v. Loveman (1986), 34 Ohio App.3d 212, 217, 517 N.E.2d 1005. See also Bernad v. Lakewood (2000), 140 Ohio App.3d 350, 747 N.E.2d 838 (once defendant's felony conviction for carrying a concealed weapon was expunged, his legal disability preventing him from possessing firearms was removed, and he was entitled to immediate possession of his 29 guns).

{¶ 28} Fulton was not under "some sort of legal disability" that would prevent him from possessing or owning a handgun. In fact, the record is clear that Fulton did not have a "legal disability" prohibiting him from possessing a handgun, since the state of Ohio had issued him a concealed-handgun license for the gun.⁴

NATURE OF THE PROPERTY: THE HANDGUN

{¶ 29} The language in R.C. 2933.41(C) reflects the definition of contraband set forth in R.C. 2901.01(A)(13):

{¶ 30} "`Contraband' means any property described in the following categories:

{¶ 31} "(a) Property that in and of itself is unlawful for a person to acquire or possess;

{¶ 32} "(b) Property that is not in and of itself unlawful for a person to...