State v. Casalicchio

• Decision Date: 03 April 1991
• Docket Number: No. 89-1865,89-1865
• Citation: 58 Ohio St.3d 178,569 N.E.2d 916
• Parties: The STATE of Ohio, Appellant and Cross-Appellee, v. CASALICCHIO, Appellee and Cross-Appellant.
• Court: Ohio Supreme Court

Page 178

58 Ohio St.3d 178

569 N.E.2d 916

The STATE of Ohio, Appellant and Cross-Appellee, v. CASALICCHIO, Appellee and Cross-Appellant.

No. 89-1865.

Supreme Court of Ohio.

Submitted Nov. 20, 1990.

Decided April 3, 1991.

Syllabus by the Court

Where property is ruled contraband pursuant to R.C. 2933.42(B), forfeiture of that property pursuant to R.C. 2933.43 constitutes a separate criminal penalty in addition to the penalty the defendant faces for conviction of the underlying felony.

On the evening of August 25, 1987, Joseph Casalicchio was driving his 1974 Chevrolet Corvette north on Interstate 77 outside Cleveland. He was travelling at a high rate of speed when a patrolman for the village of Cuyahoga Heights stopped him. The police officer arrested Casalicchio for reckless operation and took him into custody. The patrolman then performed a routine inventory search of Casalicchio's automobile. The inventory revealed what appeared to be seven marijuana cigarettes, a quantity of hashish, a quantity of cocaine, and a plastic tube used for inhaling cocaine.

On October 22, 1987, Casalicchio pleaded no contest to two felony offenses, possession of a controlled substance, cocaine, in violation of R.C. 2925.11, and possession of a criminal tool, the inhaler, in violation of R.C. 2923.24. Casalicchio's sentence was announced in court on November 20, 1987. Three days later, on November 23, 1987, the state petitioned the trial court for forfeiture of Casalicchio's automobile pursuant to R.C. 2933.43. A hearing on the petition for forfeiture was held on January 21, 1988, and an order of forfeiture was handed down on April 7, 1988.

Casalicchio appealed the order of forfeiture to the Court of Appeals for Cuyahoga County. The appellate court reversed the order of forfeiture, holding that because the defendant's automobile was not used in the commission of the offenses for which he was convicted, it was not subject to forfeiture.

The state now appeals, asserting that the forfeiture statutes reach Casalicchio's automobile. Casalicchio cross-appeals, challenging not only the reach of the forfeiture statutes but also the procedure by which the state applied them to him.

The cause is now before this court upon the allowance of a motion for leave to appeal.

Stephanie Tubbs Jones, Pros. Atty., and David Zimmerman, Cleveland, for appellant and cross-appellee.

Paul Mancino, Jr., Cleveland, for appellee and cross-appellant.

WRIGHT, Justice.

The state asserts that Casalicchio's automobile falls within Ohio's contraband forfeiture statutes and the trial court's action was proper in all respects. Casalicchio raises several constitutional challenges to the forfeiture statutes on cross-appeal, challenging them on their face and as applied in this case. The state's and Casalicchio's assertions require a significant review of R.C. 2933.42 and R.C. 2933.43, Ohio's contraband forfeiture statutes.

I

Initially, Casalicchio challenges on due process grounds the scope of the forfeiture statutes. Specifically, he questions whether his automobile is constitutionally subject to forfeiture when it bears no substantial relationship to the underlying crimes for which he was convicted. Casalicchio also argues that even if constitutional strictures do not prevent a forfeiture statute from reaching his automobile under these facts, nevertheless, R.C. 2933.42 and 2933.43 are void for vagueness under the Fourteenth Amendment. Casalicchio argues that he was not put on notice by R.C. 2933.42 and 2933.43 that his vehicle was subject to forfeiture. At the outset, we address Casalicchio's attack on the clarity of these statutes.

The 1986 amendments to the Revised Code contained in Am.Sub.S.B. No. 69, 141 Ohio Laws, Part I, 173, restructured Ohio's laws governing forfeitures. See Legislative Service Commission Analysis, Sub.S.B. No. 69 (1985). This legislation greatly expanded the definition of "contraband" and detailed the procedure for the seizure, forfeiture, and disposition of contraband. See R.C. 2901.01(M)(8), 2933.42, and 2933.43. Casalicchio contends that R.C. 2933.42 and 2933.43 should be limited to contraband that is either illegal to possess or is legal to possess but is subject to forfeiture because it was employed in the commission of a crime. This interpretation ignores the plain meaning of R.C. 2933.42.

R.C. 2901.01(M) defines "contraband," in part, as "[a]ny personal property that has been, is being, or is intended to be used in an attempt or conspiracy to commit, or in the commission of, any offense or in the transportation of the fruits of any offense[.]" R.C. 2901.01(M)(8). Casalicchio's automobile falls within this definition of "contraband." However, R.C. 2933.42 expands this definition of "contraband" so as to leave no question that Casalicchio's automobile is contraband. R.C. 2933.42 reads:

"(A) No person shall possess, conceal, transport, receive, purchase, sell, lease, rent, or otherwise transfer any contraband.

"(B) For purposes of section 2933.43 of the Revised Code, if a watercraft, motor vehicle, aircraft, or other personal property that is not within the scope of the definition of contraband in section 2901.01 of the Revised Code is used in a violation of division (A) of this section, the watercraft, motor vehicle, aircraft, or personal property is contraband and, if the underlying offense involved in the violation of division (A) of this section is a felony, is subject to seizure and forfeiture pursuant to section 2933.43 of the Revised Code. It is rebuttably presumed that a watercraft, motor vehicle, aircraft, or other personal property in or on which contraband is found at the time of seizure has been, is being, or is intended to be used in a violation of division (A) of this section."

Casalicchio possessed and transported cocaine and a cocaine inhaler in his automobile. The cocaine is contraband as a controlled substance pursuant to R.C. 2901.01(M)(5), which states that controlled substances are contraband. ¹ Further, pursuant to R.C. 2925.11, possession of cocaine is a felony. In addition, the cocaine inhaler is contraband pursuant to R.C. 2901.01(M)(8) and its possession is also a felony pursuant to R.C. 2923.24. Because the cocaine and the cocaine inhaler constitute contraband involving felonies, and because they were possessed and transported in a motor vehicle, the motor vehicle is contraband pursuant to R.C. 2933.42. Accordingly, Casalicchio's automobile was subject to forfeiture pursuant to R.C. 2933.43(C), which states: " * * * property shall be forfeited upon a showing by a preponderance of the evidence by the petitioner that the person from which the property was seized was in violation of division (A) of section 2933.42 of the Revised Code. * * * " Manifestly, the forfeiture provisions apply to Casalicchio's automobile and neither R.C. 2933.42 nor 2933.43 is void for vagueness.

Casalicchio also challenges these provisions for exceeding the bounds of due process because of the breadth of their scope. Particularly, Casalicchio asserts that because his automobile bears no substantial relationship to the underlying criminal offenses for which he was convicted, due process bars forfeiture of his automobile. This argument fails.

The United States and Ohio alike have long used forfeiture as a weapon against criminal behavior and public nuisances. See Ohio Dept. of Natural Resources v. Prescott (1989), 42 Ohio St.3d 65, 67-68, 537 N.E.2d 204, 206-207; Calero-Toledo v. Pearson Yacht Leasing Co. (1974), 416 U.S. 663, 680-685, 94 S.Ct. 2080, 2090-93, 40 L.Ed.2d 452; United States v. Seifuddin (C.A.9, 1987), 820 F.2d 1074, 1076-1077. An item may be forfeited because the item itself is unlawful to possess, or an item may be forfeited because of its connection to unlawful activity. The extent of the connection need not be great. Casalicchio's automobile was connected to an illegal activity in that it was used to possess and transport property that was felonious to possess.

A similar federal statute provides for similar forfeitures. In United States v. One 1982 28' Internatl. Vessel (C.A.11, 1984), 741 F.2d 1319, the court was confronted with a challenge to a forfeiture under Sections 781 and 782, Title 49, U.S.Code. Section 781 makes it unlawful to transport contraband while Section 782 provides for the forfeiture of any "vessel, vehicle, or aircraft" used in violation of Section 781. ² Internatl. Vessel held that because marijuana is contraband, the discovery of trace amounts of marijuana upon an oceangoing vessel warranted forfeiture of the vessel. Specifically, the court held that there need be no particular criminal purpose to the transportation of the contraband and stated, " * * * the statute is silent as to the purpose for such transportation, and so no particular purpose need be shown." Id. at 1322. Accord United States v. Premises Known as 3639-2nd St., N.E. (C.A.8, 1989), 869 F.2d 1093; United States v. One 1976 Porsche 911S (C.A.9, 1979), 670 F.2d 810. See, also, Calero-Toledo, supra, upholding a Puerto Rican forfeiture statute upon similar facts but subject to a different challenge. These cases required only that a vehicle, vessel, or house contain contraband in order to warrant forfeiture. Such are the undisputed facts in the case at bar. We hold that R.C. 2933.42 and 2933.43 are constitutional in their clarity and scope, and Casalicchio's automobile falls within their purview.

II

We next address three of Casalicchio's assertions that challenge the civil nature of the forfeiture proceedings. Specifically, Casalicchio urges that any forfeiture proceeding against his automobile is criminal and as such the state must prove the facts establishing forfeiture beyond a reasonable doubt. Accordingly, Casalicchio asserts that the evidentiary presumption in R.C. 2933.42(B) fails to satisfy the constitutional requirement of proof beyond a reasonable doubt in a criminal proceeding. Lastly,...