State v. Golston

• Decision Date: 04 June 1990
• Docket Number: No. 56921,56921
• Citation: 66 Ohio App.3d 423,584 N.E.2d 1336
• Parties: The STATE of Ohio, Appellee, v. GOLSTON, Appellant.
• Court: Ohio Court of Appeals

Page 423

66 Ohio App.3d 423

584 N.E.2d 1336

The STATE of Ohio, Appellee, v. GOLSTON, Appellant.

No. 56921.

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

Decided June 4, 1990.

John T. Corrigan, Pros. Atty., and Brian McGraw, Cleveland, for appellee.

Julius E. Kovacs & Assoc. Co., L.P.A., and Lawrence G. Sheehe, Jr., Cleveland, for appellant.

McMANAMON, Judge.

Theoplas Golston contests the forfeiture of numerous items of personal property and cash Cleveland police took from his residence. He urges that the state failed to demonstrate, by a preponderance of the evidence, that the items were contraband in violation of R.C. 2933.42. He also objects to the court's order that the Public Defender's office pay the Cuyahoga County Sheriff the costs incurred in transporting and housing him for the hearing. Our review of the record compels a reversal of the forfeiture and a vacation of the court's order on costs.

I

Eighteen months after police initially seized property from Golston's home on April 23, 1987, and seven months after a second seizure on March 9, 1988, the state sought forfeiture of the confiscated items pursuant to R.C. 2933.43(C). The petition related to Golston's convictions in four cases (Cr-226156, 224363, 217873 and 223398).

A forfeiture action, while criminal in nature, is a civil proceeding against seized property. State v. Lilliock (1982), 70 Ohio St.2d 23, 24 O.O.3d 64, 434 N.E.2d 723; Sensenbrenner v. Crosby (1974), 37 Ohio St.2d 43, 45, 66 O.O.2d 106, 108, 306 N.E.2d 413, 415; Chagrin Falls v. Loveman (1986), 34 Ohio App.3d 212, 517 N.E.2d 1005; State v. Clark (1989), 63 Ohio App.3d 52, 577 N.E.2d 1141; State v. Jacobiak (Dec. 22, 1989), Lucas App. No. L-89-016, unreported, 1989 WL 155185. Forfeiture is not favored in law and as a consequence, such statutes must be strictly construed against the state. Lilliock, supra; State v. Niles (1989), 44 Ohio App.3d 133, 541 N.E.2d 635; State v. Cruz (Dec. 1, 1983), Cuyahoga App. No. 46799, unreported, 1983 WL 2855.

In a civil action, a reviewing court may notice a "plain error," which is neither affirmatively waived nor objected to, in order to prevent a "manifest miscarriage of justice." Reichert v. Ingersoll (1985), 18 Ohio St.3d 220, 223, 18 OBR 281, 283, 480 N.E.2d 802, 805; Schade v. Carnegie Body Co. (1982), 70 Ohio St.2d 207, 209, 24 O.O.3d 316, 317, 436 N.E.2d 1001, 1003; Nickles v. Goodyear Tire & Rubber Co. (Aug. 4, 1982), Summit App. No. 10470, unreported, at 9, 1982 WL 2684.

Upon review of the record, we find a procedural irregularity that must be addressed in order to preserve the integrity of the forfeiture process.

R.C. 2933.43(C) requires the state to file a petition of forfeiture "upon seizure of the contraband" or within a reasonable time. State v. Baumholtz (1990), 50 Ohio St.3d 198, 553 N.E.2d 635, paragraph one of the syllabus; State v. Niles (1989), 44 Ohio App.3d 133, 541 N.E.2d 635; State v. Baumholtz (Feb. 22, 1989), Summit App. No. 13789, unreported, 1989 WL 16719, affirmed (1990), 50 Ohio St.3d 198, 553 N.E.2d 635.

In determining the reasonableness of a forfeiture, a reviewing court must first examine the state's delay in filing to determine if it is unreasonably lengthy. Baumholtz, supra, 50 Ohio St.3d 198, 553 N.E.2d 635. See United States v. $8,850 (1983), 461 U.S. 555, 566, 103 S.Ct. 2005, 2013, 76 L.Ed.2d 143, 153 (regarding forfeiture in the course of United States customs service proceedings).

The Ohio Supreme Court has held a delay of five and one-half months between seizure of the property and the filing of a forfeiture petition is unreasonable. Baumholtz, supra, 50 Ohio St.3d 198, 553 N.E.2d 635. In Niles, supra, the Ninth District Court of Appeals found a delay of seventy-nine days after seizure to be unreasonable. Niles, supra; Baumholtz, supra, Summit App. No. 13789.

When a reviewing court determines that a forfeiture filing appears to be unreasonably delayed, it must then determine if the delay prejudiced the defendant's due process right. Baumholtz, supra, 50 Ohio St.3d 198, 553 N.E.2d 635. The court must weigh the length of the delay, the reasons justifying the delay, the defendant's assertion of his right and the prejudice to the defendant. Baumholtz, supra, 50 Ohio St.3d 198, 553 N.E.2d 635. See, also, United States v. $8,850, supra.

We find nothing in the record to justify an eighteen-month delay. A forfeiture petition must be filed within a reasonable time after seizure of the property, not at the close of criminal proceedings. See Baumholtz, supra, 50 Ohio St.3d 198, 553 N.E.2d 635. An unreasonably lengthy delay in initiating the process is not justified where the state had only to fill in the blanks on a petition form. May v. United States v. One 1977 Chevrolet Van (S.D.Ohio 1981), 519 F.Supp. 649. See, also, Sensenbrenner, supra, 37 Ohio St.2d at 44, 66 O.O.2d at 107, 306 N.E.2d at 414.

Because of the eighteen-month hiatus in filing, there was no matter for Golston to challenge. The state's filing delay also prejudiced Golston. He was forced to defend his right to possess items of personal property and cash he had not seen for one and one-half years against charges that he used them in four separate cases. The forfeiture process, which relies on the participants' memories to provide the details of a seizure, is unnecessarily complicated by long delays.

The legislature, by using the word "shall," clearly made the time limitation on filing for forfeitures mandatory. Dorrian v. Scioto Conservancy Dist. (1971), 27 Ohio St.2d 102, 107, 56 O.O.2d 58, 60-61, 271 N.E.2d 834, 837; Niles, supra. We find the state contravened the statute and unreasonably delayed the process by filing its petition eighteen months after its initial seizure of property, and seven months after its second. The court's order of forfeiture is void for noncompliance with R.C. 2933.43(C).

II

Though we find the court's forfeiture order void, App.R. 12(A) compels our consideration of the issues raised by Golston. He argues that the trial court erred in failing to grant him a directed verdict because the state failed to prove, by a preponderance of the evidence, that he possessed "contraband" in violation of R.C. 2933.42.

A forfeiture proceeding is governed by the Rules of Civil Procedure. R.C. 2933.43(C); Lilliock, supra, paragraph three of the syllabus; Sensenbrenner, supra, paragraph two of the syllabus; State v. Casalicchio (Aug. 31, 1989), Cuyahoga App. No. 55655, unreported, 1989 WL 101908 ¹; State v. Mateo (Aug. 17, 1989), Cuyahoga App. No. 55833, unreported, 1989 WL 95760; State v. Hadlock (Dec. 11, 1986), Cuyahoga App. No. 51879, unreported, 1986 WL 14512; Jacobiak, supra; In re $5,970.74 U.S. Currency (Dec. 6, 1989), Hamilton App. No. C-880707, unreported, 1989 WL 146437.

A court may direct a verdict pursuant to Civ.R. 50(A) where it determines, after construing the evidence in the light most favorable to the nonmovant, that the movant is entitled to judgment as a matter of law. Sanek v. Duracote Corp. (1989), 43 Ohio St.3d 169, 172, 539 N.E.2d 1114, 1117. See, also, Pariseau v. Wedge Products, Inc. (1988), 36 Ohio St.3d 124, 522 N.E.2d 511. The court may not weigh evidence or test witness credibility when ruling on a directed verdict motion. Sanek, supra.

In a forfeiture procedure, the state bears the burden to prove seized property is contraband by a preponderance of the evidence. R.C. 2933.43(C); Lilliock, supra; Loveman, supra; In re $5,970.74 U.S. Currency, supra; Clark, supra; State v. Llamas (Apr. 13, 1989), Cuyahoga App. No. 55188, unreported, 1989 WL 36711. See, also, United States v. United States Currency: $24,927 (S.D.Ohio 1986), 635 F.Supp. 475, 478.

R.C. 2901.01(M), in relevant part, defines "contraband" as:

"(1) Property that in and of itself is unlawful for a person to acquire or possess;

"(2) Property that is not in and of itself unlawful for a person to acquire or possess, but that has been determined by a court of this state, in accordance with law, to be contraband because of its use in an unlawful activity or manner, of its nature, or of the circumstances of the person who acquires or possesses it;

" * * *

"(5) Any controlled substance, as defined in section 3719.01 of the Revised Code, or any device, paraphernalia, money as defined in section 1301.01 of the Revised Code, or other means of exchange that has been, is being, or is intended to be used in an attempt or conspiracy to violate, or in a violation of, Chapter 2925. or 3719. of the Revised Code;

" * * *

"(9) Any property that is acquired through the sale or other transfer of contraband or through the proceeds of contraband, other than by a court or a law enforcement agency acting within the scope of its duties[.]"

The mere possession of cash, as well as video cassette recorders and other electronic items, is not unlawful. Lilliock, supra; Garono v. State (1988), 37 Ohio St.3d 171, 176, 524 N.E.2d 496, 501; State v. Jacobs (1940), 137 Ohio St. 363, 19 O.O. 57, 30 N.E.2d 432, paragraph two of the syllabus; Loveman, supra; State v. Martin (Dec. 21, 1989), Cuyahoga App. No. 57675 unreported, 1989 WL 154876; Clark, supra; Cruz, supra. To prove such items are contraband, the state must demonstrate that it is more probable than not, from all the circumstances, that the defendant used the items in the commission of criminal offenses. Loveman, supra; Casalicchio, supra; Cruz, supra; State v. Brooks (Feb. 27, 1986), Cuyahoga App. No. 50384, unreported, 1986 WL 2677.

R.C. 2933.43(C) sets forth the state's burden in a forfeiture:

" * * * When a hearing is conducted under this section, 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. If that showing is made, the court shall issue an order of forfeiture. * * * "

R.C. 2933.42 states in part:

"(A)...