State v. Lilliock

• Decision Date: 28 April 1982
• Docket Number: No. 81-817,81-817
• Citation: 70 Ohio St.2d 23,434 N.E.2d 723,24 O.O.3d 64
• Parties: , 24 O.O.3d 64 The STATE of Ohio, Appellant, v. LILLIOCK, Appellee.
• Court: Ohio Supreme Court

Page 23

70 Ohio St.2d 23

434 N.E.2d 723, 24 O.O.3d 64

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

No. 81-817.

Supreme Court of Ohio.

April 28, 1982.

Syllabus by the Court

1. A person who, after receiving stolen property in violation of R.C. 2913.51(A), uses his motor vehicle to transport such property does not lose any right to possession of his vehicle under R.C. 2933.41.

2. Proceedings under R.C. 2933.41 are criminal in nature but civil in form.

3. Due process requires that proceedings seeking disposition of property used in an unlawful manner, but not in itself unlawful, must comply with the Rules of Civil Procedure.

On February 29, 1980, William R. Lilliock, defendant, appellee herein, was apprehended while driving his 1975 Ford Econoline van on Interstate 70 in Franklin County. Defendant's vehicle matched the description of a van connected with a reported breaking and entering of a truck which occurred earlier at a truck stop in Licking County near Duke's Inn Motel. Defendant voluntarily drove back to the truck stop, and executed a written consent to a search of his vehicle. In addition to various snack food items, office equipment was found in the van and subsequently identified as property stolen from an office located in Duke's Inn. Defendant was charged with breaking and entering (in connection with the snack foods) and receiving stolen property (the office equipment). Following acquittal on the former charge, and conviction on the latter, he was sentenced to two to five years imprisonment.

On August 26, 1980, one day after judgment entry, the state filed an application with the trial court under R.C. 2933.41 for disposition of defendant's van, which had been seized and impounded by the sheriff's department. The court thereafter declared the van forfeited and ordered ownership of the van transferred to the Licking County Commissioners. ¹

Defendant appealed both his conviction and forfeiture to the Court of Appeals, which affirmed the conviction, but vacated the forfeiture in a split decision, finding the van not subject to forfeiture under R.C. 2933.41. The court ordered title restored to defendant.

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

Ray Luther, Newark, for appellant.

Jones, Norpell, List, Miller & Howarth and J. Michael King, Newark, for appellee.

CLIFFORD F. BROWN, Justice.

At issue is the meaning and application of R.C. 2933.41, which governs the disposition of property held by a law enforcement agency. ² This is the first opportunity for this court to construe this statute which appears in R.C. Title 29, the Criminal Code, under the Chapter relating to peace warrants and search warrants. R.C. 2933.41 contains no description of the form of proceedings to determine disposition of property held by a law enforcement agency, but merely specifies the court having jurisdiction over the matter. R.C. 2933.41(D). Nor do the Criminal Rules comprehend such proceedings. We conclude that a proceeding under R.C. 2933.41 is criminal in nature, but civil in form, and is governed by the Rules of Civil Procedure. This accords with the principle contained in Crim.R. 57(B), which directs courts to the Civil Rules when no procedure is specifically prescribed by Criminal Rule. ³

R.C. 2933.41(A) provides, in pertinent part, that "(p)roperty * * * lawfully seized or forfeited, * * * shall be safely kept pending the time it is no longer needed as evidence," when it "shall be disposed of pursuant to this section." Division (C) of R.C. 2933.41, harmonizing with division (A), provides, in pertinent part, that a person loses any right "to possession of property" used "in the commission, of an offense other than a traffic offense * * * (w)hen, in light of the nature of the property or the circumstances of such person, it is unlawful for him to acquire or possess it." Even if, arguendo, defendant's van fulfills the requirements of division (C), R.C. 2933.41 affects only defendant's right to possession of his vehicle and does not disturb his right to title of such property. This determination is in accord with State v. Jacobs (1940), 137 Ohio St. 363, 30 N.E.2d 432, where, in a parallel situation, we held that money seized by a sheriff raiding a gambling place was not subject to confiscation, but that after the fine and costs assessed against the keeper of the gambling premises were satisfied from such money seized, at the termination of the criminal proceedings, the balance should be returned to the person in whose possession it was found.

Although R.C. 2933.41 is not a forfeiture statute, deprivation of defendant's right to possession of his vehicle is as onerous as if the state had declared a forfeiture. This court must construe R.C. 2933.41 strictly, keeping in mind the principle that forfeitures are not favored in law or equity. State, ex rel. Lukens, v. Indus. Comm. (1944), 143 Ohio St. 609, 611, 56 N.E.2d 216; State, ex rel. Cline, v. Indus. Comm. (1939), 136 Ohio St. 33, 35, 23 N.E.2d 636; 24 Ohio Jurisprudence 2d 524, Forfeitures, Section 4; 37 Corpus Juris Secundum 8-9, Forfeitures, Section 4. This accords with the general principle that statutes imposing restrictions upon the use of private property, in derogation of private property rights, must be strictly construed. See Saunders v. Zoning Dept. (1981), 66 Ohio St.2d 259, 261, 421 N.E.2d 152; Perkins v. Hattery (1958), 106 Ohio App. 361, 365, 155 N.E.2d 73. Whenever possible, such statutes must be construed so as to avoid a forfeiture of property. State, ex rel. Jones, v. Board (1915), 93 Ohio St. 14, 16, 112 N.E. 136. No forfeiture may be ordered unless the expression of the law is clear and the intent of the legislature manifest. See Lessee of Bond v. Swearingen (1824), 1 Ohio 395, 404; 37 Corpus Juris Secundum 11, Forfeitures, Section 5.

Applying division (C) of R.C. 2933.41 to the facts in this case results in a determination that the loss of defendant's right to possession is improper. Division (C) is divided into two paragraphs which are separated by a semicolon. Strictly construing the statute against the state and in favor of the defendant, and requiring the clearest expression of legislative intent to order a loss of right to possession, we conclude that the two paragraphs must be read together as a two-part test for determining whether loss of right to possession is appropriate. Not only must the property be used by the offender in the commission of an offense, it also must be unlawful for the offender to possess the property, in light of its nature or the circumstances of the offender. Applying this two-part test to the instant case, we conclude that neither requirement is fulfilled.

First, the property must be used by an offender "in the commission, of an offense other than a traffic offense." R.C. 2913.51(A), the crime for which defendant was convicted, provided in pertinent part: "No person shall receive, retain or dispose of property of another, knowing or having reasonable cause to believe it has been obtained through commission of a theft offense." The "commission of" the offense is complete upon receiving property with reasonable cause to believe it is stolen. The evidence presented at a suppression hearing showed defendant paid an unidentified person for the stolen property in the Duke's Inn bar. Later, defendant gained physical possession of the stolen property in the truck stop parking lot, when the unidentified seller transferred the property from his truck to defendant's van. However, physical possession is not a prerequisite to receiving. Possession may be constructive. State v. Wolery (1976), 46 Ohio St.2d 316, 329, 348 N.E.2d 351, and cases cited therein. "Constructive possession exists when an individual exercises dominion and control over an object, even though that object may not be within his immediate physical possession." Id. We conclude that defendant "received" the stolen property when he paid for it in the Duke's Inn bar. The "commission of the offense" occurred at a point prior to the time the property was placed in the van. Cf. United States v. Lane Motor Co. (1953), 344 U.S. 630, 73 S.Ct. 459, 97 L.Ed. 622. The subsequent use of his vehicle to transport the stolen goods does not make the van subject to a loss of defendant's right to possession under R.C. 2933.41(C), since the offense was complete upon constructive possession of the stolen goods before their placement in his van.

The second aspect of the two-part test provided in R.C. 2933.41(C) requires that possession of the property be unlawful, either from the nature of the property or the circumstances of the person. We find nothing in the nature of the van to deem it unlawful for defendant to possess it. It was not customized in any way to facilitate concealment of property. Nor does defendant's conviction for receiving stolen property render him unfit to own such a vehicle. Defendant's wife testified at the forfeiture hearing concerning her plan to sell the van to satisfy various debts incurred. Given this circumstance, we conclude that defendant retains his equitable and legal rights to possession and title of his vehicle.

Division (D) of R.C. 2933.41 governs disposition of property subject to forfeiture due to its inherent nature, such as drugs, obscene materials, firearms and dangerous ordnance, as well as intoxicating liquor taken from a person not the holder of a permit issued under R.C. Chapters 4301 and 4303. In setting forth various items of evidence which may be ordered forfeited or destroyed, division (D) does not include any category of property broad enough to include defendant's vehicle. See Ryals v. Collins (1975), 46 Ohio Misc. 25, 26-27, 345 N.E.2d 658. Therefore division (D) cannot apply to defendant's vehicle.

There is a clear...