In re BMW 740I, 2007 Ohio 5876 (Ohio App. 11/2/2007), Appeal No. C-070085.

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtMark P. Painter
Citation2007 Ohio 5876
PartiesIn re: 1994 BMW 740I, Vin# WBAGD4326RDE66500, Seized from David Foster.
Docket NumberAppeal No. C-070085.
Decision Date02 November 2007

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2007 Ohio 5876
In re: 1994 BMW 740I, Vin# WBAGD4326RDE66500, Seized from David Foster.
Appeal No. C-070085.
Court of Appeals of Ohio, First District, Hamilton County.
Date of Judgment Entry on Appeal: November 2, 2007.

Criminal Appeal From Hamilton County Common Pleas Court, Trial No. M04-00991.


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan, Assistant Prosecuting Attorney, for Plaintiff-Appellee.

David Foster, pro se.

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MARK P. PAINTER, Presiding Judge.

{¶1} On August 18, 2004, the Cincinnati Police Department set up a controlled delivery of heroin in a Howard Johnson hotel. Defendant-appellant David Foster drove Bill Harris to the hotel in his 1994 BMW 740i. Foster entered the hotel room with Harris, and they left carrying a black garbage bag containing a kilogram of heroin.

{¶2} Foster was promptly arrested and later convicted of a felony drug-abuse offense in case number B-0408159. A search of the BMW at the time of the arrest uncovered a digital scale and some pay-and-own sheets, effects commonly used in the drug trade. The state brought a forfeiture action for Foster's 1994 BMW 740i under R.C. 2925.43(A)(2), the civil forfeiture statute. On September 16, 2005, a magistrate made a decision, later affirmed by the trial court, that the BMW was used to facilitate the commission of a felony drug-abuse offense and thus was subject to forfeiture.

{¶3} In his first assignment of error, Foster argues that the application of the Ohio forfeiture statute violated his right to a jury trial under the Sixth Amendment and Blakely v. Washington.1 Foster's vehicle was forfeited under R.C. 2925.43, in a civil proceeding. The Sixth Amendment to the United States Constitution states that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury * * *." (Emphasis added.) Accordingly, the Sixth Amendment did not apply in this case. Nor did Blakely v. Washington, which prohibits judicial factfinding during criminal sentencing.

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{¶4} We recognize that the Ohio Constitution guarantees the right to a jury trial in a civil proceeding.2 Several states recognize the right to a jury trial in a civil forfeiture proceeding based on their state constitutions.3 But Foster waived his right to a jury trial when he failed to timely demand it as required by the civil rules. Civ.R. 38(B) provides that "[a]ny party may demand a trial by jury on any issue triable of right by a jury by serving upon other parties a demand * * * not later than fourteen days after the service of the last pleading directed to such issue."4 The failure to serve a demand as required "constitutes a waiver by him of trial by jury."5 For the foregoing reasons,...

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