State v. Ly ( 2020 )

[Cite as State v. Ly, 2020-Ohio-4265.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2019-12-091
: OPINION
- vs - 8/31/2020
:
MICHAEL LY, :
Defendant, :
and
LILLIAN WANG, et al.,
Appellants.
CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
Case No. 2018 CR 000799
D. Vincent Faris, Clermont County Prosecuting Attorney, Nick Horton, 76 South Riverside
Drive, 2nd Floor, Batavia, Ohio 45103, for appellee
Harry P. Hellings, Jr., 214 East 4th Street, Covington, Kentucky 41011, for appellants
S. POWELL, J.
{¶ 1} Appellants, Michael Ly's wife, Lillian Wang ("Lillian"), and Ly's mother-in-law,
Yang Nu Wang ("Yang Nu"), appeal the decision of the Clermont County Court of Common
Clermont CA2019-12-091
Pleas denying their petition for remission of property forfeited as a result of Ly's conviction
for conspiracy to trafficking in marijuana. For the reasons outlined below, we affirm the trial
court's decision.
{¶ 2} On March 29, 2019, Ly entered into a plea agreement and pled guilty to
conspiracy to trafficking in marijuana, a fourth-degree felony, with a forfeiture specification.
By pleading guilty, Ly acknowledged that over $200,000 in cash and $25,000 in money
orders recovered from his restaurant, The Pacific Kitchen, as well as his Butler County
home, were proceeds that were derived from his conspiracy to trafficking in marijuana. This
included $34,811 in cash recovered from his and Lillian's master bathroom, $6,800 in cash
recovered from his and Lillian's master bedroom, and $124,500 in cash recovered from a
safe located in a back bedroom of his and Lillian's home.1
{¶ 3} On April 30, 2019, the trial court held a sentencing hearing and sentenced Ly
to four years of community control. The trial court also ordered the above referenced cash
and money orders forfeited to the Clermont County Narcotics Unit and the Hamilton County
Drug Abuse Reduction Task Force, in equal shares, as proceeds derived from Ly's
conspiracy to trafficking in marijuana.
{¶ 4} On May 29, 2019, Lillian and Yang Nu filed a petition for remission of forfeiture
pursuant to R.C. 2981.04(E)(1). In support of their petition, Lillian alleged the cash
recovered from her and Ly's master bathroom and master bedroom was proceeds from the
sale of real estate in Ohio that she had "hidden" from Ly after they "experienced marital
problems" in order "to protect herself and her children in the event of a divorce." Lillian also
alleged that the cash recovered from the safe located a back bedroom in her and Ly's home
1. The trial court also ordered the forfeiture of a van alleged to have been purchased from the proceeds of
Ly's conspiracy to trafficking in marijuana. The state later conceded that the van was not derived from those
proceeds and therefore not subject to forfeiture.
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belonged to her mother, Yang Nu, as proceeds from the sale of real estate in New York.
{¶ 5} On August 21, 2019, the trial court held a hearing on Lillian and Yang Nu's
petition.2 At this hearing, the trial court heard testimony from five witnesses. This included
testimony from Ly, Lillian, and Yang Nu. After taking the matter under advisement, the trial
court issued a decision denying Lillian and Yang Nu's petition. In so holding, the trial court
noted that it had found most, if not all, of the testimony offered by Ly, Lillian, and Yang Nu
lacked credibility. Specifically, as it relates to the credibility of Ly's testimony, the trial court
stated:
[Ly] pleaded guilty to Conspiracy to Trafficking in Marijuana, and
guilty to the forfeiture specification which included the case at
issue. By pleading to the specification, he acknowledged that
the property in question was proceeds from marijuana
trafficking. His testimony at the August 21, 2019 hearing that
he wasn't aware of the $34,811.00 in cash in the master
bathroom, which he used every day, is simply not credible. His
testimony that he was unaware that his mother-in-law [Yang Nu]
kept $124,500.00 in a safe in his house is likewise not credible
in light of his plea to the forfeiture specification. He has a clear
motive to avoid the forfeiture of the money by supporting his wife
and mother-in-law's claims to the cash. Upon observing Ly's
demeanor while testifying, and considering the reasonableness
of his testimony in light of all of the evidence, the Court simply
does not believe Ly's testimony concerning the stacks of $100
bills found inside his home when the search was conducted.
{¶ 6} Continuing, as it relates to the credibility of Lillian's testimony, the trial court
stated:
Likewise, the Court does not find [Lillian's] testimony to be
credible. She testified that in 2013-2014, she hid approximately
$35,000 in $100 bills under the sink in the master bathroom to
keep it from her husband, [Ly], in the event he divorced her.
Later, she testified [that] she hid the money under the sink
approximately a year before the search of her house on January
31, 2018. The cash remained there until the house was
2. Pursuant to R.C. 2981.04(E)(3), "[t]o the extent practicable and consistent with the interests of justice," the
trial court was to have held the hearing on Lillian and Yang Nu's petition within 30 days after the petition was
filed. However, as noted by the trial court, both parties agreed to hold the hearing on August 21, 2019 after
they experienced difficulty in obtaining a Chinese interpreter and to accommodate counsels' otherwise busy
schedules.
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searched on January 31, 201[9]. Prior to the search, she was
asked if there was any money in the house, and she did not
inform the officers of the $34,811.00 found in the bathroom. She
was dishonest with law enforcement concerning the presence
of the cash she now claims is hers. She testified that she did
not disclose the money because she didn't want Ly to know she
had hid[den] money from him. Upon observing [Lillian's]
demeanor while testifying, and considering the reasonableness
of her testimony in light of all of the evidence, the Court does
not find [Lillian] to be a credible witness, and does not believe
her testimony that the cash under the sink was proceeds from
the sale of property in 2015. She testified both on direct and
cross examination that she put the money under the sink in
2013-2014, which was before the Blue Ash home was sold in
2015.
{¶ 7} Finally, as it relates to the credibility of Yang Nu's testimony, the trial court
initially stated:
[Yang Nu], [Lillian's] mother, claims that the $124,500 in cash
located in the safe in her bedroom was her money, and not the
proceeds of [Ly's] drug trafficking. She testified that the money
was from life insurance proceeds when her husband passed in
2004, and from the sale of New York property in September,
2015. * * * She testified that she put $145,000.00 in cash in the
safe in October, 2017, and that the money was a wedding gift
for her grandson. She testified that she then returned to China
in November of 2017. She testified she withdrew money from
the bank little by little, in $100.00 bills, and then withdrew a lump
sum of approximately $80,000 before returning to China. She
indicated that the money in the safe came from these bank
withdrawals. She offered no bank records to verify these
withdrawals. The last bank statement provided for [Yang Nu]
was for the period of September 26 through October 27, 2015.
{¶ 8} The trial court then stated:
The Court accepts that [Yang Nu] received over $219,000.00 at
the September 2015 closing on the sale of the New York
property. However, the Court does not believe that the
$124,500.00 found in the safe consisted of those funds. The
Court does not find [Yang Nu's] testimony that she put the
money in the safe because she didn't trust banks to be credible.
Her explanation that she withdrew money "little by little" in
$100.00 bills, and then withdrew a lump sum of $80,000.00
before returning to China is not corroborated by the bank
records provided. Upon observing [Yang Nu's] demeanor while
testifying, and considering the reasonableness of her testimony
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in light of all of the evidence, the Court does not find her
testimony as to the source of the $124,500.00 found in the safe
to be credible. [Yang Nu] has not proven by a preponderance
of the evidence that the $124,500.00 found in the safe was hers.
{¶ 9} Lillian and Yang Nu now appeal the trial court's decision denying their petition
for remission of property, raising the following single assignment of error.
{¶ 10} THE TRIAL COURT ERRED IN DENYING THE APPELLANTS REMISSION
OF FORFEITURE REQUEST.
{¶ 11} In their single assignment of error, Lillian and Yang Nu argue the trial court
erred by denying their petition for remission of forfeiture. We disagree.
{¶ 12} "R.C. 2981.04(E) grants the trial court limited jurisdiction to amend the final
forfeiture order under the procedures set forth in that statutory section." State v. Waycaster,
8th Dist. Cuyahoga No. 108476, 2020-Ohio-1604, ¶ 12. To that end, any person, other than
the offender whose conviction is the basis of the forfeiture order, may petition the trial court
that issued the order for a hearing to "adjudicate the validity of the person's alleged interest
in the [forfeited] property." R.C. 2981.04(E)(1). In other words, "R.C. 2981.04(E)(1) allows
any person (other than the offender) who asserts a legal interest in the forfeited property to
petition the court for a hearing to adjudicate the validity of that interest after the court has
entered the forfeiture order." State ex rel. West v. McDonnell, 139 Ohio St. 3d 115, 2014-
Ohio-1562, ¶ 20. "If, after the hearing, the court determines that the interested person
proved by a preponderance of the evidence that the interest in the property [was] vested in
the petitioner and not the offender, the trial court 'shall amend its forfeiture order' under R.C.
2981.04(F)(1)." Waycaster.
{¶ 13} "'The preponderance of the evidence means that amount of evidence on one
side which outweighs or is of greater probative value than that on the other.'" State v.
Laghaoui, 12th Dist. Warren No. CA2017-06-098, 2018-Ohio-2261, ¶ 14, quoting State v.
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Puckett, 12th Dist. Butler No. CA88-12-178, 1990 Ohio App. LEXIS 1463, *5 (Apr. 16,
1990). This is essentially the same standard that is applied in a manifest weight of the
evidence challenge. See State v. Barnett, 12th Dist. Butler No. CA2011-09-177, 2012-
Ohio-2372, ¶ 14 (a manifest weight of the evidence challenge examines the "inclination of
the greater amount of credible evidence, offered at a trial, to support one side of the issue
rather than the other"); see also State v. Simpson, 1st Dist. Hamilton No. C-100789, 2011-
Ohio-4578, ¶ 15 ("[t]he phrase, 'greater weight of the evidence,' equates with a
preponderance of the evidence"). "When reviewing a judgment based on a preponderance
of the evidence, we will not reverse the judgment if there is 'some competent, credible
evidence going to all the essential elements of the case.'" State v. Johnson, 11th Dist.
Trumbull No. 2009-T-0042, 2010-Ohio-1970, ¶ 28, quoting C.E. Morris Co. v. Foley
Construction Co., 54 Ohio St. 2d 279, 280 (1978).
{¶ 14} Lillian and Yang Nu initially argue that the trial court erred by denying their
petition by finding their testimony lacked credibility. However, unlike this court on appeal,
it is the trial court that is in the best position to resolve factual questions and evaluate
witness credibility. The trial court, as the trier of fact, is also free to believe all, part, or none
of the testimony offered. This includes Ly's testimony that he was unaware that there was
$34,811 in cash stored underneath the sink in his and Lillian's master bathroom, as well as
Ly's testimony alleging he did not know his mother-in-law, Yang Nu, kept $124,500 in cash
in a safe located in the back bedroom of his and Lillian's home. The trial court choose to
discredit Ly's testimony, as well as most, if not all, of the testimony offered by Lillian and
Yang Nu. The trial court did this after observing their demeanor in relation to the
reasonableness of their testimony in light of the evidence presented. This court will not
substitute its evaluation of Ly's, Lillian's, and Yang Nu's credibility for that of the trial court.
{¶ 15} Lillian and Yang Nu also argue that the trial court erred by denying their
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petition since the state offered no evidence "in contradiction to their claim to the currency,"
no evidence that they were "in some manner complicit" in Ly's conspiracy to trafficking in
marijuana, and no evidence that they "received proceeds therefrom with guilty knowledge."
However, as the petitioners, the burden of proof was on Lillian and Yang Nu to prove that
they were entitled to the forfeited property. Waycaster, 2020-Ohio-1604 at ¶ 12 (the burden
of proof is on the petitioner to prove by a preponderance of the evidence "that the interest
in the property vested in the petitioner and not the offender * * * "). Therefore, because it
was Lillian and Yang Nu who carried the burden of proof, the state was under no obligation
to present any evidence, let alone evidence that Lillian and Yang Nu were "in some manner
complicit" in Ly's conspiracy to trafficking in marijuana or that they "received proceeds
therefrom with guilty knowledge." Accordingly, finding no error in the trial court's decision
denying Lillian and Yang Nu's petition for remission of forfeiture, Lillian and Yang Nu's single
assignment of error lacks merit and is overruled.
{¶ 16} Judgment affirmed.
M. POWELL, P.J., and PIPER, J., concur.
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