State v. 1981 Dodge Ram Van, 86-1151

• Citation: 36 Ohio St.3d 168,522 N.E.2d 524
• Decision Date: 27 April 1988
• Docket Number: No. 86-1151,86-1151
• Parties: The STATE of Ohio, Appellant, v. 1981 DODGE RAM VAN et al., Appellees.
• Court: United States State Supreme Court of Ohio

Page 168

36 Ohio St.3d 168

522 N.E.2d 524

The STATE of Ohio, Appellant, v. 1981 DODGE RAM VAN et al., Appellees.

No. 86-1151.

Supreme Court of Ohio.

April 27, 1988

Syllabus by the Court

This case involves an appeal of the decision of the Court of Appeals for Butler County, which reversed a decision of the court of common pleas on the ground that former R.C. 4549.07 was vague and unconstitutional as applied to Charles R. Pierson, appellee.

On November 7, 1983, Detective Rick Sizemore of the Butler County Sheriff's Department had occasion to be at the Pierson residence. With Pierson's permission, Sizemore inspected a 1981 Dodge Ram Van which was parked in Pierson's driveway. Sizemore observed that the Vehicle Identification Number ("VIN") plate located on the van's dashboard was bent and appeared to have been tampered with. Sizemore advised Pierson that he was leaving the premises to seek a warrant to search the van and asked Pierson not to move the vehicle. As Sizemore left the Pierson residence, he observed Pierson enter the van, drive through an adjoining field and fence at the rear of his property and park the van at a neighbor's house.

The vehicle was then impounded by police and a search warrant obtained. An inspection of the van showed that the confidential VIN, located on the frame of the vehicle underneath the passenger side, contained a partial VIN that did not correspond with the VIN plate attached to the dashboard. In addition, the federal inspection sticker and the manufacturer's sticker, both of which would have shown the vehicle's VIN, had been removed from the van.

Using the VIN shown on the dashboard plate, Sizemore, after a title search, located a wrecked van in a junk yard in Spiceland, Indiana. The wrecked van's VIN plate had been removed, but the confidential VIN found on that vehicle corresponded to the VIN plate attached to the van seized from Pierson.

The state of Ohio, pursuant to R.C. 2933.41, filed an application in the Court of Common Pleas of Butler County for an order of forfeiture and disposition of the van seized from Pierson. On May 9, 1985, the trial court issued its decision which concluded that Pierson could not lawfully possess the van in question because the VIN had been removed, defaced or otherwise obliterated for the purpose of concealing and destroying the vehicle's true identity, a violation of R.C. 4549.07. The trial court ordered the van forfeited to the Butler County Police Department to be used solely for the performance of departmental duties. Pierson filed a timely notice of appeal.

On May 19, 1986, the court of appeals issued its decision, which, sua sponte, held that R.C. 4549.07 was vague and unconstitutional as applied to Pierson. The court of appeals reversed the trial court's decision and ordered the state to return the van to Pierson. The court of appeals, finding its decision as to the constitutionality of R.C. 4549.07 to be in conflict with the decisions by the Court of Appeals for Scioto County in In re Disposition of a 1976/1977 Brown Ford F150 Pick-up Truck (July 7, 1983), No. 1403, unreported, and the Court of Appeals for Summit County in Son's Harley Davidson Sales & Service, Inc. v. Akron et al. (July 29, 1981), No. 10146, unreported, certified the record of the case to this court for review and final determination.

John F. Holcomb, Pros. Atty., and Daniel G. Eichel, Hamilton, for appellant.

PER CURIAM.

The state contends that it is an abuse of discretion for a court of appeals to decide an appeal on an issue it raises sua sponte where that issue was not raised in the trial court by either party, was not assigned as error by the appellant, was not briefed by either party, and was not factually supported by the record.

The state's complaint was brought under authority of R.C. 2933.41(C), which allows a governmental unit in possession of certain seized property to bring an action to terminate the rights of other persons in such property. The state claimed that the mismatching VINs established the illegal status of the van in question under former R.C. 4549.07 (now R.C. 4549.62[D] ) and that it was a crime for Pierson to possess such a vehicle.

The trial court ordered that the van be forfeited to the state because of the illegal disfigurement of the vehicle's VIN, and awarded the vehicle to the local police department.

On appeal, Pierson argued that the trial court had erred by refusing to grant his motion for dismissal. He also argued that a motor vehicle is not subject to forfeiture under R.C. 2933.41(C) due to the removal, concealment or destruction of the VINs unless the vehicle was used in the commission of an offense other than a traffic offense, and that the state failed to meet its burden of proving beyond a reasonable doubt that the defendant had committed an offense.

After considering the nature of R.C. 2933.41 disposition proceedings, the decision of this court in State v. Lilliock (1982), 70 Ohio St.2d 23, 24 O.O.3d 64, 434 N.E.2d 723, and a recent amendment of R.C. 2933.41, the court of appeals sua sponte raised the issue of the constitutionality of R.C. 4549.07. The court of appeals concluded that R.C. 4549.07 was unconstitutionally overbroad and failed to provide due process protection to an innocent, bona fide purchaser for value, which description the defendant met. The court of appeals reversed the trial court's decision, dismissed the case, and ordered that defendant's van be returned to him immediately.

App.R. 12 sets forth a court of appeals' review power. ¹ Although App.R. 12(A) provides that an appellate court need not pass on errors which were not assigned or argued, this power is discretionary. We have previously held that nothing prevents a court of appeals from passing upon an error which was neither briefed nor pointed out by a party. Hungler v. Cincinnati (1986), 25 Ohio St.3d 338, 25 OBR 392, 496 N.E.2d 912; C. Miller Chevrolet, Inc. v. Willoughby Hills (1974), 38 Ohio St.2d 298, 67 O.O.2d 358, 313 N.E.2d 400.

However, Willoughby Hills also states that out of fairness to the parties, a court of appeals which contemplates a decision upon an issue not briefed before it should (as was done in that case) give the parties notice of its intention and an opportunity to brief the issue. Id. at 301, 67 O.O.2d at 360, 313 N.E.2d at 403, fn. 3. Here, there was no such notice or opportunity for briefing given to the parties by the court of appeals. The first notice that constitutional issues were being considered was given when the court of appeals' decision was released.

The court of appeals below relies upon State v. Awan (1986), 22 Ohio St.3d 120, 22 OBR 199, 489 N.E.2d 277; Lakewood v. All Structures, Inc. (1983), 13 Ohio App.3d 115, 13 OBR 133, 468 N.E.2d 378; and State v. Giesler (Aug. 30, 1985), Warren App. No. CA85-02-003, unreported, to justify its sua sponte consideration of the constitutionality of R.C. 4549.07. That reliance is misplaced. Those cases do not establish the proposition that a court of appeals has unfettered authority to determine an appeal on the basis of a new and unargued issue.

In Awan, supra, the defendant first raised the issue of constitutionality before the court of appeals. We upheld the court of appeals' refusal to consider that issue:

"The general rule is that 'an appellate court will not consider any error which counsel for a party complaining of the trial court's judgment could have called but did not call to the trial court's attention at a time when such error could have been avoided or corrected by the trial court.' State v. Childs (1968), 14 Ohio St.2d 56 , paragraph three of the syllabus; State v. Glaros (1960), 170 Ohio St. 471 , paragraph one of the syllabus; State v. Lancaster (1971), 25 Ohio St.2d 83 , paragraph one of the syllabus; State v. Williams (1977), 51 Ohio St.2d 112, 117 . Likewise, '[c]onstitutional rights may be lost as finally as any others by a failure to assert them at the proper time.' State v. Childs, supra, [14 Ohio St.2d], at 62 , citing State v. Davis (1964), 1 Ohio St.2d 28 ; State, ex rel. Specht, v. Bd. of Edn. (1981), 66 Ohio St.2d 178, 182 , citing Clarington v. Althar (1930), 122 Ohio St. 608 , and Toledo v. Gfell (1958), 107 Ohio App. 93, 95 . [Footnote omitted.] Accordingly, the question of the constitutionality of a statute must generally be raised at the first opportunity and, in a criminal prosecution, this means in the trial court. See State v. Woodards (1966), 6 Ohio St.2d 14 . This rule applies both to appellant's claim that the statute is unconstitutionally vague on its face and to his claim that the trial court interpreted the statute in such a way as to render the statute unconstitutionally vague. Both claims were apparent but yet not made at the trial court level.

"Although R.C. 2505.21 gives appellate courts discretion to review a claimed denial of constitutional rights not raised below, 'that discretion will not ordinarily be exercised to review such claims, where the right sought to be vindicated was in existence prior to or at the time of trial.' State v Woodards, supra [6 Ohio St.2d], at 21 . The appellate court did not abuse its discretion in refusing to review appellant's claim of unconstitutionality. The legitimate state interest in orderly procedure through the judicial system is well recognized as founded on the desire to avoid unnecessary delay and to discourage defendants from making erroneous records which would allow them an option to take advantage of favorable verdicts or to avoid unfavorable ones. State v. Childs, supra [14 Ohio St.2d] at 62 , citing Douglas v. Alabama (1965), 380 U.S. 415 [85 S.Ct. 1074, 13 L.Ed.2d 934], and Henry v. Mississippi (1965), 379 U.S. 443 [85 S.Ct. 564, 13 L.Ed.2d 408]." (Emphasis added.) Awan, supra, 22 Ohio St.3d at 122-123, 22 OBR at 201-202, 489 N.E.2d at 279-280.

Awan does not support the action of the court of appeals in the instant case. Awan is a...