State v. McGowan ( 2010 )

[Cite as State v. McGowan, 2010-Ohio-1309.]
STATE OF OHIO, JEFFERSON COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
) CASE NO. 09 JE 24
PLAINTIFF-APPELLEE, )
)
- VS - ) OPINION
)
TRACY J. MCGOWAN, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas
Court, Case No. 09CR19A.
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Attorney Thomas Straus
Jefferson County Prosecutor
Attorney Jane M. Hanlin
Assistant County Prosecutor
Jefferson County Justice Center
16001 State Route 7
Steubenville, OH 43952
For Defendant-Appellant: Attorney Eric Reszke
Suite 810
Sinclair Building
Steubenville, OH 43952
JUDGES:
Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Dated: March 26, 2010
DeGenaro, J.
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{¶1} This timely appeal comes for consideration upon the record in the trial court
and the parties’ briefs. Appellant, Tracy McGowan appeals the June 5, 2009 decision of
the Jefferson County Court of Common Pleas that imposed two consecutive twelve
month sentences subsequent to a jury finding of guilty on two counts of trafficking in
cocaine in violation of R.C. 2925.03(A)(1)(C)(4), fifth degree felonies under R.C.
2925.03(C)(4)(a), with a forfeiture specification.
{¶2} McGowan argues that his convictions were against the manifest weight of
the evidence, that the trial court abused its discretion by not completely following the
guidelines of R.C. 2929.11 and R.C. 2929.12 when determining McGowan's sentence,
and that there was no competent credible evidence supporting the forfeiture of $500.00.
Upon review, McGowan's arguments are meritless.
{¶3} The jury did not lose its way in deciding that McGowan coordinated or
conducted two crack cocaine sales with an informant during controlled buys that were
observed and recorded by police. The trial court's statements in the sentencing hearing
and decision indicated that it considered R.C. 2929.11 and R.C. 2929.12 before imposing
maximum consecutive sentences, and the failure to explicitly explain certain factors within
the sentencing guidelines did not constitute an abuse of discretion. Finally, although
there were some factors weighing against the forfeiture, there were other factors which
constituted some competent credible evidence supporting the decision to forfeit $500.00
of the money seized from McGowan at the time of his arrest. Accordingly, the decision of
the trial court is affirmed.
Facts and Procedural History
{¶4} Shortly before December 5, 2008, the Jefferson County Drug Task Force
was contacted by a West Virginia police department with information indicating that
McGowan was a crack cocaine dealer. The West Virginia police department had arrested
Helissa Byers for passing a counterfeit bill, and Byers indicated that McGowan regularly
sold her crack cocaine in Steubenville. In consideration for her case in West Virginia,
Byers agreed to cooperate with Jefferson County law enforcement as a confidential
informant in controlled drug purchases. Byers was able to provide McGowan's phone
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number, car description, and current and past known addresses.
{¶5} On December 5, 2008, detectives Jason Hanlin and Thomas Ellis arranged
with Byers to conduct a controlled buy of $100.00 worth of crack cocaine from McGowan.
Byers made a series of phone calls to McGowan, which were observed and recorded by
Hanlin and Ellis. The detectives provided Byers with $100.00 of pre-recorded bills, and
Ellis searched Byers and her vehicle prior to her meeting with McGowan. McGowan met
with Byers during the evening of December 5, 2008, and completed the drug sale at an
intersection near 140 McDowell Avenue in Steubenville, under the observation of Hanlin
and Ellis. Byers was wearing a recording device that captured some of the brief
conversation that occurred between Byers and McGowan during the drug transaction.
After the transaction, Ellis again searched Byers and her vehicle, and Byers handed over
the purchased item, which was confirmed to be 0.8 grams of crack cocaine.
{¶6} On December 8, 2008, the same two detectives and informant set up a
second controlled buy for an additional $100.00 worth of crack cocaine from McGowan.
Byers again made a series of phone calls to McGowan at the same number, and their
telephone conversations were observed and recorded by Hanlin and Ellis. The detectives
again provided Byers with $100.00, fitted her with a recording device, and searched her
and her car prior to the drug transaction. Byers returned to the same intersection near
140 McDowell Avenue. Another individual, Harry Stackhouse, Jr., emerged from
McGowan's house, entered Byers's car, completed the drug transaction, and returned to
McGowan’s house. The detectives again observed the transaction under cover, and
Byers's recording device was able to capture the conversation between Byers and
Stackhouse in Byers's car. The detectives were able to take pictures, as this second
transaction occurred during daylight hours. After the transaction, Ellis again searched
Byers and her vehicle, and Byers handed over the purchased item, which was confirmed
to be 0.7 grams crack cocaine.
{¶7} The detectives then obtained a search warrant for the house at 140
McDowell Avenue, where McGowan had been located around the times of the drug
transactions. The officers searched the house on December 10, 2008. The officers
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found $148.00 on McGowan's person, and another $1000.00 in $20.00 bills in the pocket
of a child's coat in the house. During his arrest, McGowan stated that he had been out of
town for days and did not know why they were arresting him.
{¶8} On February 4, 2009, a grand jury indicted McGowan on two counts of
trafficking in drugs in violation of R.C. 2925.03(A)(1). McGowan's case proceeded to a
jury trial on June 2, 2009. At trial, the State offered the testimony of Detectives Jason
Hanlin and Thomas Ellis, as well as Harry Stackhouse, Jr., who was incarcerated for his
participation in the above-described drug transaction. McGowan did not present any
witnesses for his case in chief. The parties stipulated that the jury was to proceed with a
forfeiture determination during their deliberations, in lieu of a separate proceeding and
determination. The jury returned a guilty verdict for both trafficking charges, and a finding
that $500.00 of the $1,148.00 seized was subject to forfeiture.
{¶9} The trial court held a sentencing hearing the following day, on June 3, 2009.
The trial court explained its sentencing determination according to the sentencing
guidelines, and noted McGowan's high chance of recidivism, failure to favorably respond
to past sanctions, and lack of genuine remorse. The trial court then imposed the
maximum term of twelve months for each conviction, and chose to run the sentences
consecutively. The trial court imposed the $500.00 forfeiture, but did not impose any
further fines or restitution.
Sufficiency of the Evidence
{¶10} In his first of three assignments of error, McGowan asserts:
{¶11} "The jury verdict finding the appellant guilty of two (2) counts of trafficking in
crack cocaine was against the manifest weight of the evidence."
{¶12} McGowan contends that both of his convictions were against the manifest
weight of the evidence. In the body of this assignment of error, McGowan also asserts
that his convictions were based on insufficient evidence. An evaluation of the sufficiency
of the evidence and an evaluation of the weight of the evidence are two distinct
processes. State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541.
Thus, these two concepts will be addressed separately.
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{¶13} Sufficiency of the evidence is a question of law that tests adequacy rather
than the more discretionary weighing of the evidence. Thompkins at 386. In reviewing the
record for sufficiency, the relevant inquiry is whether, after viewing the evidence in a light
most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime to have been proven beyond a reasonable doubt. State v. Smith,
80 Ohio St.3d 89, 113, 1997-Ohio-355, 684 N.E.2d 668.
{¶14} The crimes in question, two counts of trafficking in cocaine, require proof
that McGowan twice knowingly sold or offered to sell cocaine or a compound containing
cocaine. R.C. 2925.03(A)(1),(C)(4). The State presented evidence that McGowan spoke
with Byers on the telephone on December 5, 2008 to coordinate a sale of crack cocaine,
met with Byers that evening, and received $100.00 from Byers in exchange for a
substance that tested presumptive-positive for cocaine, and was confirmed by the Ohio
Bureau of Criminal Investigation and Identification ("BCI") laboratory to be 0.8 grams of
crack cocaine.
{¶15} The State further presented evidence that McGowan spoke with Byers on
the telephone on December 8, 2008 to coordinate a sale of crack cocaine. Another
individual, Stackhouse, left from McGowan's house to meet with Byers to complete the
sale, and returned to McGowan's house after the sale. The substance received from
Stackhouse on that date tested presumptive-positive for cocaine, and was confirmed by
the BCI laboratory to be 0.7 grams of crack cocaine. Although McGowan was not
physically present during the completion of the second crack cocaine sale, his telephone
coordination of the sale alone satisfies the elements of R.C. 2925.03(A)(1),(C)(4).
{¶16} Viewing this evidence in a light most favorable to the State, a rational fact
finder could have found that McGowan knowingly sold crack cocaine to Byers on
December 5, 2008 and again on December 8, 2008. McGowan's convictions were
therefore based on sufficient evidence.
Manifest Weight
{¶17} We now turn to the separate issue of whether McGowan's convictions were
against the manifest weight of the evidence. When a court conducts a manifest-weight
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analysis, it weighs all of the evidence and reasonable inferences, considers the credibility
of each witness, and determines whether the fact-finders clearly lost their way in resolving
conflicts in the evidence to the point that they "created such a manifest miscarriage of
justice that the conviction must be reversed and a new trial ordered." Thompkins at 387.
{¶18} The manifest-weight analysis is a broader inquiry into the original trial, but
only allows for a reversal in exceptional circumstances. Id. This is because the trier of
fact was in the best position to determine the credibility of the witnesses and the weight
due to the evidence. State v. DeHass (1967), 10 Ohio St.2d 230, 231, 39 O.O.2d 366,
227 N.E.2d 212. Thus the reviewing court must determine whether the appellant or the
appellee provided the more believable evidence, but must not completely substitute its
judgment for that of the original trier of fact "unless it is patently apparent that the
factfinder lost its way." See State v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-3395, 813
N.E.2d 964, at ¶81.
{¶19} McGowan lists three factors in support of his manifest weight argument: an
untrustworthy confidential informant, poor visibility conditions during the December 5,
2008 drug sale, and witness testimony exculpating McGowan from the December 8, 2008
drug sale.
{¶20} First, McGowan argues that Byers's participation in both drug transactions
was suspect because she was an admitted drug abuser receiving consideration for her
participation in the controlled buys, and did not testify at McGowan's trial. McGowan
further asserts that the police did not properly search Byers before and after the
controlled buys. McGowan does not explain how Byers's suspiciousness caused his
convictions to be against the manifest weight of the evidence, but we will infer that
McGowan is asserting that the crack cocaine given to the detectives by Byers had been
planted by Byers rather than procured from McGowan.
{¶21} Detective Hanlin testified that when Byers made telephone calls to
McGowan to coordinate the drug purchases on December 5 and 8, both Hanlin and Ellis
supervised and recorded the phone conversations. Hanlin testified that Ellis searched
Byers and her car before and after her meeting with McGowan, though Hanlin admitted
-7-
that male police searches of female informants are less thorough than those of male
informants. Detective Ellis testified that he conducted the searches of Byers before and
after the controlled buys, and he explained that he searched her outer clothing, shoes
and socks, but did not search her underwear. Hanlin testified that he and Ellis monitored
Byers the entire time from her departure from their office, to her arrival near 140
McDowell Avenue for the drug buys, to her return to their office.
{¶22} Although it is certainly conceivable that a confidential informant might wish
to frame an associate in exchange for favorable treatment from law enforcement, the
evidence produced at trial does not provide any indication that Byers did so. Given the
detectives' explanation of their close monitoring of Byers throughout both transactions,
the jury did not lose its way in believing that the controlled buys on December 5 and 8 did
not involve misfeasance by Byers.
{¶23} Second, McGowan argues that the low light and far distance undermined
the detectives' ability to view any actual exchange of money or drugs during the
December 5, 2008 controlled buy. The December 5 controlled buy took place out of
doors at night, and the detectives observed the exchange from a distance in order to
remain under cover. Both Hanlin and Ellis testified that they were too far away to observe
the actual exchange of money and drugs between McGowan and Byers on December 5,
2008.
{¶24} At trial, the State played a recording of the supervised telephone calls made
by Byers on December 5, and Hanlin identified the voices in the conversations as Byers
and McGowan. Hanlin testified that he was able to identify McGowan because he has
known McGowan for some time. The State played a recording of the brief conversation
that occurred between Byers and McGowan during their December 5, 2008 meeting,
while the detectives observed from a distance. The detectives observed Byers as she
met with McGowan at the intersection near 140 McDowell Avenue on December 5.
Although it was dark out, Hanlin testified that he was able to positively identify McGowan
because he was personally familiar with McGowan, and because the intersection was
well-lit.
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{¶25} The detectives searched Byers before and after the transaction with
McGowan, and were able to monitor her activity during the entire span of time. Thus, the
detectives were able to verify that Byers met McGowan with $100.00 and no crack
cocaine, and left McGowan without the money and with 0.8 grams of crack cocaine.
Given this strong circumstantial evidence, the jury did not lose its way in deciding that an
exchange of crack cocaine and money took place between Byers and McGowan on
December 5, even though the detectives were unable to personally see the items
changing hands.
{¶26} Third, McGowan points out that witness Stackhouse claimed that he was
solely responsible for the December 8, 2008 drug transaction, and that McGowan was in
no way involved.
{¶27} Stackhouse testified as a witness for the State, and was already
incarcerated for his participation in the December 8, 2008 controlled buy. Stackhouse
testified that he had been involved in the drug business since the age of twelve.
Stackhouse testified that he had known McGowan since the age of twelve, and that his
step-father is related to McGowan.
{¶28} Stackhouse testified that he had used McGowan's mobile telephone to call
Byers regarding a drug purchase, and that although McGowan answered the telephone
when Byers called back on December 8, McGowan did not know who Byers was and was
not involved with the drug purchase. Stackhouse overheard McGowan stating on the
telephone that he did not sell drugs. Stackhouse did not personally speak with Byers on
his own mobile telephone until after the drug purchase had occurred.
{¶29} Stackhouse testified that after McGowan talked to Byers on the telephone,
McGowan told Stackhouse that Byers had asked for $100.00 worth of drugs. McGowan
was angry with Stackhouse for using his phone, since McGowan did not sell drugs. On
cross-examination, Stackhouse testified that he regularly used McGowan's mobile
telephone for calls and text messages, though he did not have permission to use
McGowan's mobile telephone for drug activities. When asked how he knew where to
meet Byers to complete the drug transaction on December 8, 2008, Stackhouse
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explained that after McGowan hung up on Byers, McGowan told him that Byers had
called, asked for $100.00 of drugs, and was on Euclid Street.
{¶30} However, the State played the recording of the telephone conversation
between Byers and McGowan on December 8, 2008, which included the following
interactions:
{¶31} "Mr. McGowan: Yo.
{¶32} "Ms. Byers: Hey, I'm ready. You ready?
{¶33} "Mr. McGowan: Yeah.
{¶34} "Ms. Byers: Can I work with a 50 or I got to have more?
{¶35} * *
{¶36} "Ms. Byers: All right. Can you hear me?
{¶37} "Mr. McGowan: Yeah.
{¶38} "Ms. Byers: All right. You got a 50?
{¶39} "Mr. McGowan: No.
{¶40} "Ms. Byers: I got to do a buck?
{¶41} "Mr. McGowan: Yeah.
{¶42} "Ms. Byers: All right. I'll be there in like ten, maybe even five. Where you
want me to go?
{¶43} "Mr. McGowan: Same spot.
{¶44} "Ms. Byers: All right. I'll be there in five minutes.
{¶45} "Mr. McGowan: All right."
{¶46} Additionally, Stackhouse testified that he had conducted other drug sales
with Byers prior to the December 8, 2008 transaction. Stackhouse had not yet heard the
recording of his December 8, 2008 conversation with Byers during the drug transaction,
and the State re-played the recording, which included the following interaction:
{¶47} "Ms. Byers: You? All right. I needed to order an 8 ball. Is that all you got
left?
{¶48} "Mr. Stackhouse: I'm not sure.
{¶49} "Ms. Byers: (Inaudible). You ain't got nothing more than that?
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{¶50} "Mr. Stackhouse: That's all he's got right there. That's all you need.
{¶51} "Ms. Byers: Do you got anything?
{¶52} "Mr. Stackhouse: I ain't got nothing. I'm out till later on.
{¶53} "Ms. Byers: Well, can I get your number for when he's out?
{¶54} * *
{¶55} "Ms. Byers: What's your name?
{¶56} "Mr. Stackhouse: White-G.
{¶57} "Ms. Byers: White-G?
{¶58} "Mr. Stackhouse: Yeah.
{¶59} "Ms. Byers: All right. Thanks."
{¶60} Stackhouse admitted that on the recording, Byers asked Stackhouse what
his name was and did not know his telephone number. Stackhouse explained that he
gave Byers his own telephone number for the first time because McGowan had gotten
angry with him for using his telephone. Stackhouse was not able to explain why Byers did
not know his name.
{¶61} The above recorded conversations between McGowan and Byers, and
between Stackhouse and Byers, undermined Stackhouse's claims that McGowan did not
sell drugs and did not know who Byers was. The State's evidence that McGowan had
previously met with Byers on December 5, 2008 further impeached Stackhouse's
statement that McGowan did not know who Byers was. Given that Stackhouse's specific
claims, as well as his overall credibility, was undermined by strong conflicting evidence
from the State, the jury did not lose its way in choosing to disbelieve Stackhouse's claim
that McGowan was in no way involved with the December 8, 2008 sale of crack cocaine.
{¶62} Given the foregoing, the State provided substantial evidence indicating that
McGowan knowingly sold crack cocaine to Byers on December 5, 2008 and December 8,
2008. The jury's decision to resolve credibility issues and any evidentiary conflicts in
favor of the State was not unreasonable, let alone a manifest miscarriage of justice.
McGowan's convictions were therefore not against the manifest weight of the evidence,
and his first assignment of error is meritless.
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Sentencing
{¶63} In his second assignment of error, McGowan asserts:
{¶64} "The trial court abused its discretion in sentencing the appellant to a definite
term of twenty-four (24) months in prison."
{¶65} McGowan contends that the trial court failed to impose a sentence that was
consistent with the Ohio sentencing guidelines. Specifically, McGowan claims that the
sentencing court abused its discretion because it did not state that McGowan had no
record of delinquency adjudications, and did not state any facts to support its finding that
McGowan showed no genuine remorse. McGowan also generally asserts that the
sentencing court made no findings to support its decision to impose maximum
consecutive sentences.
{¶66} When reviewing the constitutionality of a felony sentence, an appellate court
must determine first whether the defendant has shown by clear and convincing evidence
that the sentence is contrary to law, and second whether the court committed an abuse of
discretion. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, at ¶4.
As for the first step, a trial court's sentence would be contrary to law if, for example, it
were outside the statutory range, in contravention of a statute, or decided pursuant to an
unconstitutional statute. Kalish at ¶36; State v. Thomas, 7th Dist. No. 06 MA 185, 2008-
Ohio-1176, at ¶16. As for the second step, a reviewing court must determine whether the
trial court abused its discretion in applying R.C. 2929.11 and R.C. 2929.12. State v.
Gratz, 7th Dist. No. 08-MA-101, 2009-Ohio-695, at ¶8, citing Kalish at ¶13-14. An abuse
of discretion is more than a mere error of law or judgment; it constitutes an unreasonable,
arbitrary or unconscionable use of discretion. Kalish at ¶19.
{¶67} McGowan's convictions were of two fifth degree felony violations of R.C.
2925.03(A)(1),(C)(4)(a). The statutory range for a fifth degree felony is between six and
twelve months. R.C. 2929.14(A)(5). McGowan received a sentence of twelve months for
each conviction, thus within the statutory range. McGowan does not otherwise argue that
the sentences were contrary to law, and instead argues that they were an abuse of
discretion under the second prong of the Kalish analysis.
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{¶68} McGowan seems to contend that the trial court was required to make
specific findings to support its decision to impose maximum consecutive sentences, and
failed to do so. McGowan also contends that the trial court was required to express that it
had considered McGowan's lack of juvenile adjudications, and provide factual findings to
support its statement that McGowan failed to show remorse.
{¶69} When considering the purposes and principles of sentencing under R.C.
2929.11 and the seriousness and recidivism factors under R.C. 2929.12, a trial court
does not need to state its specific reasoning on the record or in its judgment entry as to
how or why particular factors in those statutes apply to the case under consideration.
Kalish, supra, at ¶18, fn. 4; State v. Arnett, 88 Ohio St.3d 208, 215, 2000-Ohio-302, 724
N.E.2d 793; State v. James, 7th Dist. No. 07 CO 47, 2009-Ohio-4392, at ¶50.
{¶70} McGowan had a considerable criminal record, specifically involving
repeated drug offenses. Thus the court's conclusion regarding McGowan's likelihood of
recidivism was well-supported. The sentencing court was not required to list all factors
contained in the sentencing guidelines, thus the fact that the sentencing court did not
specifically discuss McGowan's juvenile record was inconsequential. Further, the
sentencing court was not required to state factual findings to support any specific
conclusions that it did state, thus the court's failure to state facts supporting its lack of
remorse finding was not an abuse of discretion.
{¶71} The sentencing court did state that it considered the purposes and
principles of sentencing under R.C. 2929.11 and the seriousness and recidivism factors
under R.C. 2929.12, both on the record at the June 3, 2009 sentencing hearing, and in its
June 5, 2009 judgment entry. The trial court explained its analysis according to the
sentencing guidelines, and noted McGowan's high chance of recidivism, failure to
favorably respond to past sanctions, and lack of genuine remorse. Thus, the sentencing
decision did not constitute an abuse of discretion.
{¶72} Because the maximum consecutive sentences imposed by the trial court
were not contrary to law, and did not involve any abuse of discretion, McGowan's second
assignment of error is meritless.
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Forfeiture
{¶73} In his third assignment of error, McGowan asserts:
{¶74} "The trial court committed reversible error in ordering the forfeiture of
$500.00."
{¶75} McGowan contends that the State failed to prove by a preponderance of the
evidence that $500.00 of the money seized during McGowan’s arrest was subject to
forfeiture. McGowan asserts that the State did not present any evidence linking the
seized money with any illegal enterprise, and thus that the jury's finding that any of the
money should be forfeited was erroneous.
{¶76} A forfeiture action, while criminal in nature, is a civil proceeding against the
seized property. State v. Casalicchio (1991), 58 Ohio St.3d 178, 181, 569 N.E.2d 916;
State v. Watkins, 7th Dist. No. 07 JE 54, 2008-Ohio-6634, at ¶31. As of July 1, 2007,
R.C. Chapter 2981 governs forfeiture specifications. When a defendant is convicted of a
felony drug offense, the trier of fact normally considers separately whether any of the
property listed in the forfeiture specification in the defendant’s indictment should
ultimately be forfeited. R.C. 2981.04(B). Here, McGowan stipulated that the jury was to
proceed with a forfeiture determination during its primary deliberations, in lieu of a
separate proceeding and determination.
{¶77} The trial court instructed the jury that if they reached a guilty verdict on the
second count of trafficking in cocaine, they were to proceed to a forfeiture determination.
The trial court instructed that the jury should "return a verdict of forfeiture if you find by the
greater weight of the evidence that the [seized $1,148.00 or any portion thereof]
constituted or was derived directly or indirectly from any proceeds that the defendant
obtained directly or indirectly from the commission of trafficking in cocaine." The
language of the trial court's instruction indicates that the seized currency was identified as
"proceeds" pursuant to R.C. 2981.01(B)(11)(a) and R.C. 2981.02(A)(2).
{¶78} Included in the categories of property subject to forfeiture under Ohio law
are "[p]roceeds derived from or acquired through the commission of an offense." R.C.
2981.02(A)(2). In the context of an offense involving unlawful goods, proceeds are
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defined as "any property derived directly or indirectly from an offense," including money,
and "not limited to the net gain or profit realized from the offense." R.C.
2981.01(B)(11)(a). Thus, the finder of fact is not limited to the underlying offense when
determining whether to forfeit alleged proceeds. The action may proceed against
property derived from any act considered to be a felony drug offense, regardless of the
subsequent charges, convictions, or lack thereof. Watkins, at ¶31, State v. Brownridge,
3d Dist. No. 9-09-24, 2010-Ohio-104, at ¶25. However, the law generally does not favor
forfeiture, and such statutes must be strictly construed against the State. State v. Hill, 70
Ohio St.3d 25, 31, 1994-Ohio-12, 635 N.E.2d 1248; State v. Lilliock (1982), 70 Ohio St.2d
23, 24 O.O.3d 64, 434 N.E.2d 723.
{¶79} Pursuant to R.C. 2981.04, if a defendant is convicted of an offense where
the indictment contained a forfeiture specification, the "trier of fact shall return a verdict of
forfeiture that specifically describes the extent of the property subject to forfeiture," if the
State is able to prove "by a preponderance of the evidence that the property is in whole or
part subject to forfeiture." R.C. 2981.04(B). When reviewing a judgment based on a
preponderance of the evidence standard, an appellate court must not substitute its
judgment for that of the finder of fact if there is "some competent, credible evidence going
to all the essential elements of the case." C.E. Morris Co. v. Foley Constr. Co. (1978), 54
Ohio St.2d 279, 8 O.O.3d 261, 376 N.E.2d 578, at syllabus. Therefore, as long as there
is some competent, credible evidence that $500.00 of the currency seized during
McGowan's arrest was derived directly or indirectly from the commission of a drug
offense, the forfeiture decision must not be disturbed.
{¶80} There are a number of factors that might indicate that seized currency was
derived from a drug offense, such as if the currency includes marked bills from a
controlled buy, if the currency is a large sum in small denominations, if it was found with
items associated with the drug trade, or if the defendant was caught in the act of selling
drugs. Watkins at ¶36-41.
{¶81} In support of his argument, McGowan points out that the money was seized
on December 10, 2008, days after the controlled buys. McGowan further points out that
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none of the pre-recorded $200.00 used during the controlled buys was found, and no
crack cocaine was found at the residence at 140 McDowell. McGowan further indicates
that he did not live at 140 McDowell, and that multiple people lived at that residence.
{¶82} In support of the forfeiture, the State points out that $1000.00 of the money
seized was hidden in a child's coat, in the house used by McGowan and other participants
during the two drug transactions. The currency was found in proximity to McGowan's
mobile telephone, which was used to conduct the drug sales and contained text
messages discussing other additional drug transactions.
{¶83} Additionally, other items seized during McGowan's arrest included a small
bag of marijuana, a pistol magazine, a camera, and multiple mobile telephones. The
police also found bills in McGowan's name, with his address listed as 140 McDowell
Avenue. During Detective Hanlin’s testimony, he indicated that McGowan's girlfriend,
Ashley Woods, attempted to claim the $1000.00 as hers at the time of McGowan’s arrest,
but she made no further contact with the police regarding that money after they requested
that she bring proof of her claim.
{¶84} Hanlin testified that, when looking through the mobile telephone identified as
McGowan's, Hanlin found a text message from December 7, 2008, that referenced a drug
transaction. Specifically, the text message shown in Exhibit 16 is listed in the “Outbox,”
which indicates that the message was sent by McGowan to someone else. The message
states “U let me get 1 4, 500 an i gave u 500 an da morning.” According to Hanlin’s
interpretation, the text message referenced a transaction of one ounce of drugs in
exchange for two payments of $500.00.
{¶85} Stackhouse testified that he had used McGowan's mobile telephone to
coordinate drug deals via text message, and also claimed that the $1000.00 seized was
his rather than McGowan's. However, given the review of Stackhouse’s testimony in the
first assignment of error, the jury did not find Stackhouse to be a completely credible
witness. Moreover, Stackhouse stated during his testimony that the $1000.00 was in
denominations of 20 and 10, then stated that the money was in denominations of 50 and
10. When the State presented the seized currency, which did not include any
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denominations of 10, Stackhouse stated that he had been high at the time, and did not
remember. Thus Stackhouse's credibility specific to the forfeiture issue was further
undermined. Insofar as Stackhouse’s claims attempted to indicate a legitimate alternative
source of the money seized from McGowan, the State sufficiently discredited
Stackhouse’s claims for the purposes of forfeiture.
{¶86} Because the State presented evidence that the seized money was hidden in
the coat of a child who would not have been the owner of that money, in the house
associated with the controlled buys for which McGowan was arrested and convicted, and
because McGowan's mobile telephone records indicated that he had probably recently
exchanged drugs and money in the amount of $500.00 or $1000.00, the State met its
relatively low burden of proof. McGowan did not present evidence to refute the forfeiture
specification. Although there is not strong evidence that the specific money found at the
time of McGowan's arrest belonged to McGowan and was derived from the commission
of a drug offense, there is at least some competent credible evidence that it was. Thus,
McGowan's third assignment of error is meritless, and the forfeiture decision will not be
disturbed.
{¶87} In conclusion, McGowan's convictions for trafficking in cocaine were based
upon sufficient evidence and were not against the manifest weight of the evidence, and
the sentencing decision was neither contrary to law nor an abuse of discretion. Further,
there were few, but adequate factors supporting a forfeiture of $500.00 of the money
seized at the time of McGowan's arrest. Accordingly, the judgment of the trial court is
affirmed.
Donofrio, J., concurs.
Waite, J., concurs.