State v. Moss ( 2014 )

[Cite as State v. Moss, 2014-Ohio-5411.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. W. Scott Gwin, J.
Hon. Sheila G. Farmer, J.
-vs-
Case No. 14-CA-3
TIMOTHY A. MOSS
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Fairfield County Common
Pleas Court, Case No. 13 CR 301
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 4, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
GREGG MARX DAVID A. SAMS
Prosecuting Attorney Box 40
Fairfield County, Ohio W. Jefferson, Ohio 43162
239 W. Main Street, Ste. 101
Lancaster, Ohio 43130
Fairfield County, Case No. 14-CA-3 2
Hoffman, P.J.
{¶1} Defendant-appellant Timothy A. Moss appeals the judgment of forfeiture
of cash entered by the Fairfield County Common Pleas Court. Plaintiff-appellee is the
state of Ohio.
STATEMENT OF THE CASE1
{¶2} On September 13, 2013, Appellant entered a plea of guilty to trafficking in
heroin, in violation of R.C. 2925.03(A)(2) and (C)(6)(d), and having weapons under
disability, in violation of R.C. 2925.03. The trafficking violation contained a forfeiture
specification pursuant to R.C. 2941.1417 and a specification for proximity to a school.
Specifically, the state sought forfeiture of $43,100 in cash found pursuant to a search of
Appellant's residence.
{¶3} Upon searching Appellant's residence, the officers found scales, plastic
baggies, knives, a stun gun, a calculator, and a notebook with Appellant’s name on the
front. The notebook contained names with differing dates and amounts. In the basement
of Appellant’s home, officers found two shotguns, two rifles, and two handguns. The
officers also found large amounts of marijuana, prescription pills, needles, over eight
grams of heroin, and $43,100 in currency. The currency included $120 in marked
money used by the Major Crimes Unit to purchase heroin in the controlled buy which
formed the basis for the trafficking charge. The buy money was placed in a recess over
the basement doorway. The remainder of the money was divided into envelopes
throughout the basement and hidden in the insulation. The basement was padlocked
with a combination only known to Appellant. Firearms and drugs were found in close
1
A rendition of the underlying facts is unnecessary for our resolution of the appeal.
Fairfield County, Case No. 14-CA-3 3
proximity to the money. A coffee can contained $20,000 in cash with a large amount of
heroin. In addition, a large stack of cash was found in the joists of the house with
marijuana wrapped inside. The officers testified the area appeared to be a workstation
for Appellant.
{¶4} The trial court accepted Appellant’s plea of guilty to the charges, and
ordered forfeiture of all $43,100 in currency.
{¶5} Appellant appeals, assigning as error:
{¶6} "I. THE FORFEITURE OF DEFENDANT-APPELLANT'S PROPERTY
WAS CONTRARY TO OHIO LAW AND THE STATE AND FEDERAL
CONSTITUTIONS."
{¶7} The issue presented is whether forfeiture is limited to the proceeds
derived from the indicted criminal offense or can include proceeds derived from any
criminal offense, including one(s) for which a defendant has not been convicted.
{¶8} R.C. 2981.02 governs forfeiture proceedings,
(A) The following property is subject to forfeiture to the state or a
political subdivision under either the criminal or delinquency process in
section 2981.04 of the Revised Code or the civil process in section
2981.05 of the Revised Code:
(1) Contraband involved in an offense;
(2) Proceeds derived from or acquired through the commission of
an offense; (Emphasis added.)
{¶9} Ohio courts have recognized there is nothing inherently illegal about
possessing cash. State v. Golston, 66 Ohio App. 3d 423, 431–432, 584 N.E.2d 1336
Fairfield County, Case No. 14-CA-3 4
(1990), citing Chagrin Falls v. Loveman, 34 Ohio App. 3d 212, 217, 517 N.E.2d 1005
(1986). To prove cash is subject to forfeiture, the State must demonstrate it is more
probable than not, from all the circumstances, the cash was used in the commission of
a criminal offense or constituted proceeds from the commission of "an" offense. The
government is required to prove the money constitutes proceeds of “an offense,” not
necessarily proceeds of the offense at issue in the criminal case. Dayton Police Dept.
v. Thompson, 2nd Dist No. 24790, 2012-Ohio- 2660. “An offense” is any act that “could
be charged.” Id. A conviction is not required.
{¶10} Here, Appellant was indicted on charges of engaging in a pattern of
corrupt activity, trafficking in heroin, possession of heroin, and having weapons under
disability. The officers testified herein they found scales, plastic baggies, knives, a stun
gun, a calculator and a notebook with Appellant’s name on the front near Appellant’s
bedroom during their search. The notebook contained names followed by dates and
amounts. In the basement of Appellant’s home, the officers found two shotguns, two
rifles, two handguns, large amounts of marijuana, including some wrapped in cash,
prescription pills, needles, heroin, and $43,100 in currency. The currency was stored
with the drugs or located nearby.
{¶11} Based upon the foregoing, the trial court did not err in finding it was more
probable than not, from all the circumstances, Appellant used the cash or the cash
constituted proceeds from the commission of a criminal offense; therefore, subject to
forfeiture.
{¶12} Appellant's assignment of error is overruled
Fairfield County, Case No. 14-CA-3 5
{¶13} The judgment of the Fairfield County Court of Common Pleas is affirmed.
By: Hoffman, P.J.
Gwin, J. and
Farmer, J. concur