State v. Baas ( 2014 )

[Cite as State v. Baas, 2014-Ohio-1191.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Petitioner-Appellee, :
v. : No. 13AP-644
(C.P.C. No. 11CV-10979)
Jason A. Baas, :
(REGULAR CALENDAR)
Respondent-Appellant. :
D E C I S I O N
Rendered on March 25, 2014
Ron O'Brien, Prosecuting Attorney, and Jeffrey C. Rogers, for
appellee.
Stuart A. Benis, for appellant.
APPEAL from the Franklin County Court of Common Pleas
CONNOR, J.
{¶ 1} Respondent-Appellant, Jason A. Baas ("appellant"), appeals from a
judgment of the Franklin County Court of Common Pleas, granting a petition for civil
forfeiture filed by petitioner-appellee, State of Ohio ("State"). For the reasons that follow,
we affirm in part and reverse in part.
A. Facts and Procedural History
{¶ 2} On January 14, 2011, Columbus police executed a search warrant on
appellant's residence located at 2226 West Mound Street in Columbus, Ohio. Appellant
lived at the residence with his fiancé and his niece. As a result of the search, police
recovered 23 marijuana plants in labeled pots, grow lights, potting soil, ventilation
equipment, vermiculite, dehumidifiers, a digital scale, and empty pots and plastic bags.
Police also uncovered a bag of marijuana, a pan containing marijuana, and marijuana in a
No. 13AP-644 2
number of plastic containers, for a total of 240 grams of marijuana. Some of the
marijuana was found in appellant's vehicle. Police also recovered a total of $9,610 in cash
found on appellant's person and $233 found elsewhere in the residence. Appellant was
arrested and charged with possession of marijuana in an amount exceeding 200 grams
but less than 1,000 grams.
{¶ 3} On September 11, 2011, the prosecutor commenced a civil action seeking
forfeiture, to the Columbus City Police and the office of the Franklin County Prosecutor, of
all property seized from appellant's home in relation to case No. 2011CRA15680. On
September 26, 2011, defendant filed a reply. On October 12, 2011, the trial court granted
the State's motion to stay the case pending criminal proceedings.
{¶ 4} On February 3, 2012, a Franklin County Grand Jury indicted appellant on
charges of possession of marijuana in violation of R.C. 2925.11, and cultivating marijuana
in violation of R.C. 2925.04, both of which are felonies in the fifth degree. On
February 23, 2012, appellant served the State with a demand for discovery and, on
March 26, 2012, appellant served the State with a demand for the deposition testimony of
the State's lab technician and a copy of the technician's report. Appellant also moved the
court to suppress evidence recovered from the search of his home. On August 24, 2012,
appellant pleaded guilty to a single misdemeanor charge of attempting to cultivate
marijuana. Appellant was convicted of that charge and assessed a $300 fine.
{¶ 5} On September 12, 2012, the trial court granted the State's motion to lift the
stay in this case. On March 28, 2013, a magistrate conducted an evidentiary hearing on
the State's petition. At the outset of the proceedings, the parties informed the trial court
that the only disputed issue was the State's claim to the $9,843 in cash that was recovered
from appellant's home. On April 24, 2013, the magistrate issued a decision and
recommendation in favor of the State in the full amount requested, $9,843. The trial court
subsequently overruled appellant's objections and entered judgment in favor of the State
in the total amount of $9,843, plus costs. Appellant timely appeals to this court from the
judgment of the trial court.
B. Assignments of Error
No. 13AP-644 3
{¶ 6} Appellant appeals from the Franklin County Court of Common Pleas,
assigning the following as error:
ASSIGNMENT OF ERROR NO. I:
THE STATE IMPROPERLY SEIZED THE PROPERTY IT
NOW SEEKS TO HAVE FORFEITED, IN VIOLATION OF
APPELLANT'S RIGHTS UNDER THE FOURTH
AMENDMENT TO THE U.S. CONSTITUTION, AND
SECTION 14, ARTICLE I OF THE OHIO CONSTITUTION.
Passim.
ASSIGNMENT OF ERROR NO. II:
THE STATE FAILED TO PROVE BY A PREPONDERANCE
OF THE EVIDENCE THAT THE PROPERTY IT SEEKS TO
HAVE FORFEITED IS SUBJECT TO FORFEITURE UNDER
OHIO REV. CODE §2981.02 IN VIOLATION OF
APPELLANT'S RIGHTS UNDER THE FIFTH, SIXTH AND
FOURTEENTH AMENDMENTS TO THE U.S. FEDERAL
CONSTITUTION AND ARTICLE I, §10 AND 16 OF THE
OHIO CONSTITUTION. Passim.
ASSIGNMENT OF ERROR NO. III:
THE TRIAL COURT ERRED IN HOLDING THAT
PETITIONER, WHO FAILED TO RESPOND TO RESPOND
TO RESPONDENTS REQUESTS FOR ADMISSION, HAD
NOT ADMITTED THE MATTERS SET FORTH THEREIN IN
VIOLATION OF THE FIFTH, SIXTH, AND FOURTEENTH
AMENDMENTS TO THE U.S. FEDERAL CONSTITUTION
AND ARTICLE I, §2, 10, AND 16 OF THE OHIO
CONSTITUTION.
ASSIGNMENT OF ERROR NO. IV:
THE TRIAL COURT ERRED IN ADMITTING THE
LABORATORY REPORTS ABSENT THE TESTIMONY OF
THE ANALYST WHO PERFORMED THE TESTS IN
VIOLATION OF THE FIFTH, SIXTH AND FOURTEENTH
AMENDMENTS TO THE U.S. FEDERAL CONSTITUTION
AND ARTICLE I, §2, 10, AND 16 OF THE OHIO
CONSTITUTION.
C. Standard of Review
No. 13AP-644 4
{¶ 7} "The court shall issue a civil forfeiture order if it determines that the
prosecutor has proved by a preponderance of the evidence that the property is subject to
forfeiture." R.C. 2981.05(D). "[P]roperty is subject to forfeiture to the state or a political
subdivision under * * * the civil process in section 2981.05 of the Revised Code if it
constitutes * * * [p]roceeds derived from or acquired through the commission of an
offense." R.C. 2981.02(A)(2).
{¶ 8} An appellate court may not reverse an order of forfeiture where there exists
in the record "some competent, credible evidence going to all the essential elements of the
case." State v. West, 8th Dist. No. 97398, 2014-Ohio-198, ¶ 24. See also State v. Watkins,
7th Dist. No. 07 JE 54, 2008-Ohio-6634, ¶ 34; State v. Bustamante, 3d Dist. No. 13-12-
26, 2013-Ohio-4975. A reviewing court must defer to a trial court's factual findings in a
forfeiture case, but it must apply a de novo standard of review when considering whether
the forfeiture violates either the federal or state constitutions. State v. Woods, 5th Dist.
No. 12-CA-19, 2013-Ohio-1136, citing State v. Sufronko, 105 Ohio App.3d 504, 506 (4th
Dist.1995).
D. Legal Analysis
1) Fourth Amendment Issues
{¶ 9} In appellant's first assignment of error, appellant argues that the trial court
erred when it determined that the police seized appellant's cash pursuant to a validly-
issued search warrant. More particularly, appellant argues that the affidavit of Detective
Brent L. Planck did not provide sufficient information to support a finding that there was
probable cause to conduct a search.
{¶ 10} A court issuing a search warrant is required to "make a practical, common-
sense decision whether, given all the circumstances set forth in the affidavit ... including
the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a
fair probability that contraband or evidence of a crime will be found in a particular place."
State v. Crumpler, 9 Dist No. 26098, 2012-Ohio-2601, ¶ 10, citing State v. George, 45
Ohio St.3d 325 (1989), quoting Illinois v. Gates, 462 U.S. 213, 238 (1983). "In reviewing
the sufficiency of probable cause in an affidavit submitted in support of a search warrant
.... a reviewing court is simply to ensure that the [trial court] had a substantial basis for
No. 13AP-644 5
concluding that probable cause existed." Id. "[R]eviewing courts should accord great
deference to the [judicial officer's] determination of probable cause, and doubtful or
marginal cases in this area should be resolved in favor of upholding the warrant." Id.,citing Gates.
{¶ 11} Based upon the foregoing, the question in this case is whether, in view of the
totality of the circumstances, Detective Planck's affidavit provided a substantial basis for
the issuing judge to conclude that there was a fair probability that police would find
evidence of a marijuana growing operation in a search of appellant's residence. We find
that the totality of the circumstances clearly supports the issuance of a warrant in this
case.
{¶ 12} Detective Planck's affidavit provides, in relevant part, as follows:
In May of 2011, a complaint was received that residents of
2226 W. Mound Street are conducting an indoor Marijuana
grow operation. The main individual involved is a male white
named Jason Bass. It was discovered through the Ohio Law
Enforcement Gateway (OHLEG) that Jason A. Baas is a
primary resident of 2226 W. Mound Street.
On 5-25-2011 at approximately 1:30 AM, Detectives Brent L.
Planck #1918 and David M. Allen #1343 completed a trash
pull of 2226 W. Mound Street. No contraband was
discovered. There were a large amount of plastic garbage bags
containing dirt, mud and dried leaves. This type of waste is
commonly found during marijuana grow operation
investigations.
On 5-25-2011, an investigative subpoena was generated to
American Electric Power (AEP) for the electrical usage of
2226, 2234 and 2214 W. Mound Street. All of these
residences are similar in size and construction. The AEP
electric service at 2226 W. Mound Street is under the name of
Jason Baas. The equipment used in indoor Marijuana grow
operations consumes high amounts of electricity compared to
non-Marijuana growers.
***
The results from AEP showed the residence of 2226 W.
Mound Street does show a substantial higher usage of electric
compared to similar residences nearby.
No. 13AP-644 6
On 6-30-2011 at approximately 2:15 AM, Detectives Planck
and Allen conducted a trash pull of 2226 W. Mound Street. A
green city of Columbus trash container was directly in front of
2226 W. Mound Street near the roadway on the sidewalk.
Detective Allen opened the trash container and retrieved a
black trash bag from inside. Detectives drove to Columbus
Police 19 Precinct substation on Sullivant Avenue and began
to examine the trash bag. Inside the trash bag, a discarded
United States Postal Service box addressed to Jason Baas
2226 W. Mound Street, Columbus, OH 43223 was found. The
box had a return address of:
H2U
Hydroponicstoyou.com
94 Fairway Ln.
Warwick, RI 02889
Hydroponic businesses and similar establishments are known
locations that cultivators of Marijuana purchase the
equipment and materials to successfully grow and harvest the
product.
{¶ 13} Detective Planck appeared as a witness at the hearing to give testimony
regarding the particulars of his investigation and the results of the search of appellant's
home. On cross-examination, Detective Planck admitted that he was unaware that other
homes he used in the comparison of appellant's electric power usage were either occupied
by fewer residents or were vacant. Appellant contends that, given this fact, the relatively
high rate of power use in appellant’s home was not probative of the existence of a growing
operation.
{¶ 14} However, " 'the focus of the probable cause inquiry is the totality of the
circumstances presented in the affidavit, not each component standing alone.' "
(Emphasis sic.) State v. Edwards, 10th Dist. No. 12AP-992, 2013-Ohio-4342, quoting
State v. Robinson, 7th Dist. No. 10 CO 37, 2011-Ohio-6639, ¶ 23. The relevant case law
suggests that, even if the evidence of appellant's power consumption were disregarded,
the remaining facts in Detective Planck's affidavit give rise to a fair probability that police
would find evidence of a marijuana growing operation in a search of appellant's residence.
See, e.g., Robinson at ¶ 3 ("The affidavit in support of the search warrant sets forth
No. 13AP-644 7
probable cause for the search, namely, information received from several informants
corroborated by drug residue and other evidence of drug activity pulled from Robinson's
trash during the month immediately preceding the issuance of the search warrant.");
State v. McGorty, 5th Dist. No. 2007CA00257, 2008-Ohio-2643, ¶ 16 (Where statements
from an anonymous confidential informant are independently corroborated by marijuana
residue (stems) found in defendant's trash, the search warrant was legally supported with
probable cause); State v. Akers, 12 Dist. No. CA2007-07-163, 2008-Ohio-4164, ¶ 25
(Where informant’s tip that defendant is involved in drug trafficking is partially
corroborated by a positive field-test of marijuana plant remnants found in defendant's
trash, probable cause for search warrant exists). Moreover, there is no evidence in this
case that Detective Planck intentionally misled Judge Peeples. See State v. Baro, 10th
Dist. No. 12AP-968, 2013-Ohio-5139, ¶ 16; State v. Snead, 10th Dist. No. 92AP-663
(Dec. 22, 1992).
{¶ 15} Appellant next contends that the anonymous tip that prompted Detective
Planck's investigation was not worthy of consideration inasmuch as Detective Planck
never personally spoke with the informant and did not even know the informant's name.
While we agree that an anonymous tip of this nature, standing alone, would not supply
probable cause for the issuance of a search warrant, we note that Detective Planck did not
need probable cause to follow-up on the anonymous tip. There is no claim by appellant
that his Fourth Amendment rights were implicated either in the investigation of power
usage at his residence or by the two trash pulls that uncovered the physical evidence of a
marijuana growing operation. Moreover, the relevant case law supports the conclusion
that probable cause for a search warrant can be based entirely upon the evidence
uncovered in a "trash pull," even in the absence of a precipitating tip from a confidential
informant. See, e.g., United States v. Roberson, 6th Cir. No. 08-3489 (June 12, 2009),
citing United States v. Lawrence, 308 F.3d 623, 626 (6th Cir.2002), (Discovery of plastic
bags containing wrappers with cocaine residue in the defendant's trash established
probable cause to search residence, even in the absence of the confidential tip that
No. 13AP-644 8
precipitated the trash pulls).1 Contrary to appellant's assertion, Detective Planck's lack of
knowledge of the informant's identity did not undermine the judge's probable cause
determination.
{¶ 16} In our view, the more important averments in Detective Planck's affidavit
are those regarding the evidence uncovered in appellant's trash including soil and plant
residue, empty boxes from a hydroponics company, and green stems that field-tested
positive for THC. While appellant argues that there may be innocent explanations for the
presence of some of the incriminating items found in his trash, the question is whether
the affidavit provides a substantial basis for Judge Peeples to conclude that there was a
fair probability that police would find evidence of a marijuana growing operation in a
search of appellant's residence. Edwards; Robinson. Applying the appropriate standard
of review, we conclude that the affidavit supplies probable cause to search appellant’s
home.
{¶ 17} For the foregoing reasons, appellant's first assignment of error is overruled.
2) Request for Admissions
{¶ 18} In appellant's third assignment of error, appellant contends that the trial
court abused its discretion when it permitted the State to present evidence in support of
facts that the State had previously admitted. We disagree.
{¶ 19} On January 16, 2013, appellant served the State with its first request for
admissions. When the State failed to respond to the request for admissions, appellant
filed a notice with the court asserting that the State had admitted the matters by operation
of Civ.R. 36(A)(1). The State moved the court for leave to present its evidence on the
matters at the evidentiary hearing. The trial court determined that Civ.R. 36(A)(1) did not
apply because appellant served its discovery request beyond the discovery cut-off date set
out in the court's original scheduling order.
1 See also United States v. Patton, 6th Cir. No. 09-5887 (Jan. 4, 2011), (Remnants of marijuana cigarettes,
marijuana seeds and stems, and a plastic bag containing marijuana residue found in the suspect's trash,
standing alone, provide a fair probability that evidence of drug possession would turn up in a search of
defendant's home); United States v. Briscoe, 317 F.3d 906, 908-09 (8th Cir.2003) (Where police found
marijuana seeds and stems in the suspect's trash, evidence was sufficient, standing alone, to justify the
issuance of a search warrant).
No. 13AP-644 9
{¶ 20} In his third assignment of error, appellant argues that its request for
admissions was timely served inasmuch as the trial court impliedly vacated the original
discovery cut-off date when it stayed the case due to the pending criminal proceedings.
However, the trial court's stay order does not specifically mention discovery, nor did the
trial court set a new discovery cut-off date when it lifted the stay. Appellant did not seek
leave of court to serve the request for admissions. Thus, the record arguably supports the
trial court's ruling that appellant failed to timely serve the State.
{¶ 21} Moreover, Civ.R. 36(B) permits the withdrawal of previous admissions
"when the presentation of the merits will be subserved thereby." Given the broad scope of
the matters covered by appellant's request for admissions, there is no question that the
withdrawal of the admissions would facilitate the presentation of the merits. Under the
circumstances, we cannot say that the trial court abused its discretion by permitting the
State to present evidence regarding matters allegedly admitted. Appellant's third
assignment of error is overruled.
3) Expert Testimony
{¶ 22} In his fourth assignment of error, appellant argues that the trial court erred
when it permitted Detective Planck to testify regarding the reports issued by the State's
criminologist.2 Appellant argues that the contents of the reports are inadmissible because
the State failed to timely disclose the reports to appellant as required by a court order and
because the reports are hearsay. Appellant further maintains that, absent Planck's
testimony regarding the results of the reports, the State presented no evidence to
substantiate its claim that the substance seized from appellant's home was, in fact,
marijuana.
{¶ 23} While we agree that Planck's testimony regarding the results of the
criminologist's report was arguably inadmissible, we find that any error with respect to
the admission of such testimony was harmless to the proceedings given appellant's own
testimony that he grew marijuana in his home for personal consumption and given the
fact that appellant had been convicted of the misdemeanor offense of cultivating
marijuana. The question whether marijuana was recovered from the search of appellant's
2 In the interest of clarity, we will consider appellant's second assignment of error last.
No. 13AP-644 10
home was simply not in dispute. Moreover, the magistrate expressly stated that the
objectionable testimony did not impact the ruling on the merits of the forfeiture petition.
(Magistrate's Decision, 7.)
{¶ 24} For the foregoing reasons, appellant's fourth assignment of error is
overruled.
4) Competent, Credible Evidence
{¶ 25} Having determined that the State seized the cash recovered in the search of
appellant's home pursuant to a constitutionally valid search warrant, the next question is
whether the cash was "[p]roceeds derived from or acquired through the commission of an
offense." R.C. 2981.02(A)(2). Appellant argues that there was no direct evidence linking
the cash to the commission of a drug offense.
{¶ 26} According to Detective Planck's testimony, the City of Columbus Police
Department received an anonymous tip that marijuana was being grown at the residence
located at 2226 West Mound Street. As a result of the tip, Detective Planck conducted a
"trash pull" which uncovered evidence corroborating the anonymous tip, including
organic plant material that field-tested positive for marijuana. After receiving
information, via subpoena, of relatively high power usage at the residence, Detective
Planck conducted a second "trash pull" which yielded further evidence of a growing
operation. Detective Planck testified that he incorporated his findings into an affidavit
and that he presented the affidavit to Judge Peeples, who issued a search warrant for the
home.
{¶ 27} On January 14, 2011, Detective Planck and his team executed the search
warrant. According to Detective Planck, in addition to the large sum of cash at issue
herein, he recovered the following items from appellant's home: 23 marijuana plants in
labeled pots, grow lights, potting soil, ventilation equipment, vermiculite, dehumidifiers,
empty pots and plastic bags, a bag of marijuana, a pan containing marijuana, and a
number of plastic containers containing marijuana, totaling approximately 240 grams. In
short, the search uncovered evidence of a sizeable marijuana growing operation which
would have produced relatively large quantities of marijuana and which would have
required considerable sums of money to maintain.
No. 13AP-644 11
{¶ 28} Appellant argues that the marijuana he grew in his home was strictly for
treatment of his hypertensive disorder and for relief of stress, not for sale. He also claims
that he obtained the rather large sum of cash found on his person from various sources,
including roofing work he performed for cash, tax refunds received by him and his fiancé,
and cash tips his fiancé received from her job as a waitress. Appellant, however, did not
provide any documentation corroborating his claims. The magistrate determined that
appellant's testimony was not credible given the large sum of cash found at the residence
and the absence of corroborating documentation. The trial court agreed with the
magistrate's assessment of appellant.
{¶ 29} As a general rule, we defer to the trial court’s determination of witness
credibility in a civil forfeiture action. State v. Hall, 8th Dist. No. 9295, 2010-Ohio-1665.
And, we disagree with appellant's contention that the State cannot prove that cash
recovered from his person was proceeds of drug trafficking absent direct evidence that he
sold the marijuana. State v. Owen, 2d Dist. No. C.A. 3039 (Dec. 29, 1993) (Even though
defendant was charged with marijuana possession only, the State proved circumstantially
that the $1,191 in cash found on defendant's person was proceeds from the sale of
marijuana where defendant possessed a much greater quantity of marijuana than he
claimed to require for his personal use). Here, the trial court's determination finds
support from the fact that police recovered the large sum of cash in a home containing 23
marijuana plants in labeled pots, 240 grams of marijuana, a digital scale and a thriving
marijuana growing operation. In our view, given the scope of the marijuana growing
operation found at appellant's home, the obvious time and expense associated with such
an operation, and the quantity of marijuana recovered, it was certainly reasonable for the
trial court to conclude that the large sum of cash found on appellant's person was
"[p]roceeds derived from or acquired through the commission of an offense." R.C.
2981.02(A)(2). Appellant's claim that he required a growing operation of this scale simply
to satisfy his own personal needs is simply not credible.
{¶ 30} However, we find that the State failed to satisfy its burden of proof with
regard to the $233 found in a basket in the kitchen. The evidence shows that someone in
the home intentionally segregated that sum of money from the cash appellant kept on his
No. 13AP-644 12
person. The sum of $233, in one dollar bills, is also quite small in comparison to the sum
of cash found on appellant’s person. These facts corroborate appellant's claim that this
particular sum of cash was derived from a separate source. Additionally, one would not
expect there to be any documentary proof for cash received as tips. In short, the weight of
the evidence does not support the conclusion that the $233 in cash found in a basket in
the kitchen was proceeds derived from or acquired through the commission of an offense.
{¶ 31} In short, with the exception of the $233 found in the jar in the kitchen, we
find that there is competent, credible evidence in the record to support the trial court's
conclusion that the sums of cash found in appellant's home was "[p]roceeds derived from
or acquired through the commission of an offense." R.C. 2981.02(A)(2). Accordingly,
appellant's second assignment of error is sustained in part.
E. Conclusion
{¶ 32} Having overruled appellant's first, third, and fourth assignments of error,
but having sustained appellant's second assignment of error in part, the judgment of the
Franklin County Court of Common Pleas is affirmed in part, and reversed in part, and the
case is remanded to the trial court for further proceedings consistent with the law and this
decision.
Judgment affirmed in part; reversed in part;
remanded for further proceedings
SADLER, P.J. and TYACK, J., concur.
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