State v. Germany

[Cite as State v. Germany, 2014-Ohio-3202.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-130777
TRIAL NOS. B-1300518
Plaintiff-Appellee, : B-1305435
vs. : O P I N I O N.
BYRON GERMANY, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
Remanded
Date of Judgment Entry on Appeal: July 23, 2014
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
David Hoffmann, Office of the Hamilton County Public Defender, for Defendant-
Appellant.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
D E W INE , Judge.
{¶1} This is an appeal from a trial court’s denial of a motion to return
property seized pursuant to a search warrant.
{¶2} Byron Germany was convicted of several drug offenses. On the day that
he was sentenced to prison, he filed a motion to return various items that the state had
obtained during a search of his property. The items included a gun, automobiles,
paperwork, and drug paraphernalia.
{¶3} Under Ohio law, the state may retain property seized during the
execution of a lawfully-issued search warrant as long as the state needs the property as
evidence. In addition, “drug paraphernalia” is automatically forfeited to the state. But
to retain other items that are no longer needed for a lawful purpose, the state must
follow the procedures in Ohio’s forfeiture laws.
{¶4} Here, the trial court summarily denied the motion. The trial court
provided no explanation for its decision, and, except as to the drug paraphernalia, there
is nothing in the record that would allow us to determine the propriety of the trial court’s
decision. As a consequence, we must reverse the trial court’s denial of the motion and
remand the cause to the trial court for consideration of the matter on a proper record.
The Proceedings Below
{¶5} On January 23, 2013, federal, state, and local law enforcement officers
entered Mr. Germany’s house to execute a federal warrant for the arrest of his wife,
Regina Shields. Ms. Shields was apprehended on allegations of federal income tax fraud
relating to Free Truth Enterprises, a charity believed to be a front to hide assets from
drug sales. During a protective sweep of the home, the police saw a hydraulic “kilo”
press—a machine commonly used for packaging cocaine—in plain view. Based on that
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observation, the police obtained a search warrant for the home, and seized the following
items:
1. One kilo press and its parts, including two weights, two metal pipes,
and a hollow wood block;
2. A 9 mm handgun with a silencer, and a magazine for the gun;
3. Paperwork related to Free Truth Enterprises and other miscellaneous
paperwork;
4. A digital scale;
5. Keys;
6. Two vehicles, a Mercedes and a Porsche; and
7. Two cell phones, an iPhone and a Cricket.
{¶6} A grand jury initially indicted Mr. Germany on three counts of
possession of criminal tools, but that indictment was ultimately dismissed. The trial
court denied a motion to suppress filed in the initial case. Mr. Germany was
subsequently charged with two counts of possession of cocaine, two counts of possession
of drug paraphernalia, and one count of possessing criminal tools. He pleaded guilty to
all five counts.
{¶7} On the day of the sentencing hearing, Mr. Germany filed a motion that
he styled “Motion to Restore Forfeited Property and Grant Petitions for Mitigation or
Return of Forfeitures.” The caption of the motion was poorly chosen. At the time of his
sentencing, the only item for which the state had sought forfeiture was the Porsche, for
which it had obtained a default judgment of forfeiture in a separate proceeding. The
state had not sought or obtained forfeiture of any other items. In the motion, Mr.
Germany requested return of all the items seized, but the only argument that he
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OHIO FIRST DISTRICT COURT OF APPEALS
advanced was that the value of the Porsche was disproportionate to the crimes for which
he had been convicted.
{¶8} The trial court took up Mr. Germany’s freshly-filed motion immediately
after imposing sentence. Without allowing opportunity for argument, the trial court set
aside the default judgment as to the Porsche, but denied the motion to restore property.1
{¶9} Mr. Germany now appeals, raising one assignment of error challenging
the court’s denial of his motion to return property. Specifically, Mr. Germany contends
that the trial court failed to properly address his motion and requests that this court
remand the cause for application of the statutory provisions governing forfeiture.
Retention and Forfeiture of Personal Property
{¶10} There are three bodies of law governing the retention of personal
property that are relevant to this appeal. The first deals with property seized during the
execution of a lawfully-issued search warrant and retained by the state for evidentiary or
investigative purposes. The second addresses the automatic forfeiture of drug
paraphernalia upon a conviction for the use or possession of that paraphernalia. And
the third pertains to property that is the subject of a forfeiture action instituted by the
state, where the court finds that the property is contraband, proceeds, or
instrumentalities of the underlying offense.
A. Property Retained for Evidentiary Purposes
{¶11} With respect to items seized pursuant to a properly-issued search
warrant, R.C. 2981.11(A)(1) provides: “Any property that has been * * * seized pursuant
to a search warrant * * * and that is in the custody of a law enforcement agency shall be
kept safely by the agency, pending the time it no longer is needed as evidence or for
1 Because the disposition of the Porsche is the subject of a separate forfeiture action, we will not
consider it in our analysis.
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OHIO FIRST DISTRICT COURT OF APPEALS
another lawful purpose.” Thus, even in the absence of a forfeiture proceeding, a court
may permit the state to retain lawfully-seized property “[i]f, during consideration of a
motion for return of property, the court properly finds that seized property is being held
for evidence or as part of an ongoing investigation[.]” State v. Bates, 6th Dist. Williams
No. WM-11-007, 2012-Ohio-1397, ¶ 15.
{¶12} The state argues on appeal that the trial court properly allowed the state
to retain the cell phones and paperwork because they are needed as part of an ongoing
investigation. It asserts that “it is believed that Germany was involved in more than
what was charged in the underlying matter.” This may well be the case, but there is little
in the record below that would allow us to evaluate this assertion. No hearing was held
on the motion. And there was also no written response filed by the state—a
circumstance that is understandable in light of the fact that the motion was filed and
ruled upon on the same day.
{¶13} Absent a proper record, we are unable to evaluate the state’s claim that it
is entitled to retain the property for evidentiary purposes. Nor can we assess Mr.
Germany’s countervailing contention that the items should be returned to him because
they are no longer needed for any lawful purpose.
B. Items Subject to Automatic Forfeiture
{¶14} Ohio law provides for the automatic forfeiture of certain contraband to
the state. R.C. 2925.14, Ohio’s drug paraphernalia statute, provides that “any drug
paraphernalia that was used, possessed, sold, or manufactured in violation of this
section shall be seized, after a conviction for that violation shall be forfeited, and upon
forfeiture shall be disposed of pursuant to [R.C. 2981.12(B)].” R.C. 2925.14(E). Thus,
items found to constitute drug paraphernalia are automatically forfeited upon a
defendant’s conviction for a violation of R.C. 2925.14.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶15} Mr. Germany pleaded guilty to two counts of possession of drug
paraphernalia—a digital scale and a kilo press containing cocaine residue—in violation
of R.C. 2925.14. Because R.C. 2925.14(E) mandates that drug paraphernalia “shall be
forfeited,” the trial court did not err in denying Mr. Germany’s request to return the
digital scale and kilo press.
{¶16} With respect to Mr. Germany’s handgun, the state argues that Mr.
Germany is subject to a weapons disability as a result of his convictions, so he cannot
legally possess the firearm. But the fact that Mr. Germany may face legal consequences
for possessing a firearm has no bearing on the forfeiture of that property under R.C.
Chapter 2981. See State v. Brimacombe, 195 Ohio App.3d 524, 2011-Ohio-5032, 960
N.E.2d 1042, ¶ 68 (6th Dist.) (the defendant’s “acquisition of that disability * * * is
distinct from the consequences of forfeiture under R.C. 2981”). Unlike drug
paraphernalia, there is no provision exempting firearms from the forfeiture process
upon the attachment of a weapons disability. Thus, the existence of a weapons disability
does not render a weapon automatically forfeited.
C. General Forfeiture Procedures
{¶17} R.C. Chapter 2981 permits the state to seek forfeiture of an offender’s
property through either a criminal process under R.C. 2981.04 or a civil process under
R.C. 2981.05. R.C. 2981.03(A)(2) authorizes a law enforcement officer to “seize
property that the officer has probable cause to believe is property subject to forfeiture.”
“Property subject to forfeiture” consists of “contraband,” “proceeds,” or
“instrumentalities” used in the commission of a felony and certain misdemeanors. R.C.
2981.01(B)(13) and 2981.02(A). Upon the commission of a criminal offense, the state or
political subdivision acquires “provisional title” to the property and may hold it until
such time that title vests pursuant to a final forfeiture order. R.C. 2981.03(A)(1).
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{¶18} Where property is seized in accordance with R.C. 2981.03, that section
mandates that if “a criminal forfeiture has not begun under section 2981.04 of the
Revised Code, the prosecutor * * * shall commence a civil action to forfeit that property
under section 2981.05[.]” R.C. 2981.03(F). A criminal forfeiture action is initiated by
including a specification in the charging instrument or by furnishing the defendant with
“prompt notice” in a bill of particulars. R.C. 2981.04(A). A civil forfeiture action is
initiated by filing “a complaint requesting an order that forfeits the property to the state
or a political subdivision.” R.C. 2981.05(A).
{¶19} As of yet, the state has not instituted a forfeiture action for any property
except the Porsche. The indictment contained no forfeiture specifications, and the state
does not contend that any civil process has begun with respect to the gun, cell phones,
keys, paperwork, or Mercedes. Many of these items could conceivably fall within the
ambit of “instrumentalities,” meaning “property otherwise lawful to possess that is
used in or intended to be used in an offense.” R.C. 2981.01(B)(6). But the trial court
has made no determination that they were instrumentalities used in the commission of
the offenses in this case, and were therefore subject to forfeiture under R.C. 2981.02,
because no forfeiture action has been filed.
{¶20} To the extent that the property is not needed for evidentiary purposes
and does not fall within the exception for drug paraphernalia, the state must comply
with the statutory provisions governing forfeiture.
Conclusion
{¶21} Although the state may retain property seized pursuant to a search
warrant and needed as evidence, there is nothing in the record indicating that the
property in this case is being held for such purposes. Nor has the state attempted to take
title to the property by means of a forfeiture action. Therefore, we sustain Mr.
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OHIO FIRST DISTRICT COURT OF APPEALS
Germany’s sole assignment of error with respect to the Mercedes, paperwork, cell
phones, keys, and firearm. We reverse the court’s order denying Mr. Germany’s motion
to return that property and remand the cause for the court to make a determination on a
proper record. We overrule the assignment of error as to the digital scale and the kilo
press, and we affirm the trial court’s judgment as to those items.
Judgment affirmed in part, reversed in part, and cause remanded.
C UNNINGHAM , P.J., and D INKELACKER , J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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