Elyria v. Mudge

[Cite as Elyria v. Mudge, 2011-Ohio-2199.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
STATE OF OHIO/CITY OF ELYRIA C.A. Nos. 10CA009838, 10CA009839,
10CA009841, 10CA009842,
Appellee 10CA009843, 10CA009844,
10CA009845, 10CA009846,
v. 10CA009847
JERALD V. MUDGE
DANIEL E. CSACH APPEAL FROM JUDGMENT
WILLIAM A. JANOWICH ENTERED IN THE
ELYRIA MUNICIPAL COURT
Appellees COUNTY OF LORAIN, OHIO
CASE Nos. 2009CRB01812,
and 2009CRB1813, 2009CRB01815
2009CRB01816, 2009CRB01818,
GAMETRONICS, INC. 2009CRB01819,2009CRB01820,
2009CRB01821, 2009CRB01822
Appellant
DECISION AND JOURNAL ENTRY
Dated: May 9, 2011
BELFANCE, Presiding Judge.
{¶1} Gametronics, Inc. (“Gametronics”) appeals from the order of the Elyria Municipal
Court denying its Request for Immediate Return of Property. We affirm.
I.
{¶2} In May 2009, Jerald Mudge, Daniel Csach, and William Janowich (the
“Defendants”) were indicted for operating a gambling house and related charges. During the
Elyria Police Department’s investigation in that case, police seized certain equipment (the
“Equipment”), primarily computers, in the Defendants’ possession. The Defendants later
pleaded no contest to disorderly conduct charges and agreed to forfeit the Equipment.
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{¶3} In March 2010, the City of Elyria (the “City”) filed a notice that it intended to
dispose of the Equipment. Gametronics filed a request that the property be returned to it,
alleging that the Defendants never owned the Equipment and that the City had not complied with
the statutory requirements for forfeiture. In May 2010, Gametronics and the City presented
evidence regarding the ownership of the Equipment at a hearing before the trial court, which
subsequently entered an order denying Gametronics’ request. It is from that order that
Gametronics now appeals, presenting two assignments of error that we have rearranged to
facilitate our analysis.
II
ASSIGNMENT OF ERROR II
“THE TRIAL COURT[] ABUSED ITS DISCRETION IN DENYING THE
ADMISSION OF APPELLANT’S EXHIBITS 1 AND 2 AFTER THE
HEARING ON THE APPELANT[’S] REQUEST FOR IMMED[IA]TE
RETURN OF PROPERTY WHEN BOTH EXHIB[I]TS WERE PROPERLY
AUTHENTICATED IN ACCORDANCE WITH OHIO RULES OF
EVIDENCE.”
{¶4} In its second assignment of error, Gametronics asserts that the trial court’s
decision excluding certain exhibits should be reversed as an abuse of discretion. We disagree.
{¶5} At the May 2010 hearing, Danielle McIsac, executive assistant to Gametronics’
president, testified that two exhibits Gametronics submitted (the “Exhibits”) were sales invoices
for computers purchased by Gametronics and shipped to the Defendants. The State argued that
the Exhibits did not demonstrate that Gametronics retained any interest in the Equipment after
the Defendants took delivery of it. The trial court determined that the Exhibits were not
authenticated and excluded them because they were photocopies on which someone other than
Ms. McIsac had made handwritten notations. Gametronics did not proffer the Exhibits.
Gametronics argues the trial court committed reversible error in excluding the Exhibits.
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{¶6} “A party may not predicate error on the exclusion of evidence during the
examination in chief unless two conditions are met: (1) the exclusion of such evidence must
affect a substantial right of the party and (2) the substance of the excluded evidence was made
known to the court by proffer or was apparent from the context within which questions were
asked.” (Emphasis sic.) State v. Gilmore (1986), 28 Ohio St.3d 190, syllabus. See, also, Evid.R.
103.
{¶7} Gametronics has not demonstrated that the exclusion of the Exhibits affected a
substantial right as required under Gilmore. See Gilmore, 28 Ohio St.3d at syllabus. It is
apparent that the Exhibits were not in any way determinative of the trial court’s factual
determination as to whether Gametronics retained an interest in the Equipment. The trial court
agreed with the State’s contention that, notwithstanding the Exhibits, if Gametronics retained an
interest in the Equipment after it was delivered to the Defendants, there would be an agreement
demonstrating as much. Because Gametronics did not present such an agreement, the court
concluded that Gametronics had not provided sufficient evidence of its current interest in the
Equipment. The court did not base its final decision on any facts to which it appears that the
Exhibits were relevant. Because it did not affect the court’s final decision, the exclusion did not
affect Gametronics’ substantial rights as required for this Court to reverse a trial court’s
exclusion of evidence. See Gilmore, 28 Ohio St.3d at syllabus.
{¶8} Under Gilmore, a party may not predicate error on the exclusion of evidence
unless both requirements are met. Id. Thus, although Gametronics failed to proffer the excluded
exhibits, it is unnecessary to engage in further inquiry as to whether Gametronics satisfied
Gilmore’s second requirement.
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{¶9} We conclude that Gametronics has failed to demonstrate that the exclusion of the
evidence affected a substantial right, and therefore overrule its second assignment of error.
ASSIGNMENT OF ERROR I
“THE TRIAL COURT’S DENIAL OF THE APPELLANT[’S] REQUEST FOR
IMMED[IA]TE RETURN OF PROPERTY WAS CONTRARY TO LAW SINCE
THE CITY OF ELYRIA FAILED TO COMPLY WITH THE STATUTES
GOVERNING FORFEITURE CONTAINED IN OHIO REVISED CODE
CHAPTER 2981.”
{¶10} In its first assignment of error, Gametronics asserts that it is entitled to return of
the Equipment because the City of Elyria did not comply with the statutory requirements for
valid forfeiture. Because Gametronics did not prove it had an ownership interest in the
Equipment, it could not mount a challenge to the forfeiture.
{¶11} For an alleged owner to challenge the forfeiture of property, it must have an
ownership interest in that property. State v. Heintz, 9th Dist. No. 02CA007997, 2003-Ohio-242,
¶8. If it lacks such an interest, then it lacks standing to challenge the forfeiture. See, e.g.,
Cleveland v. Shaker Heights (1987), 30 Ohio St.3d 49, 51; In re 1995 Mercedes C280 (2006),
168 Ohio App.3d 48, 2006-Ohio-1565, ¶¶4-5.
{¶12} The trial court determined that Gametronics has no interest in the Equipment. We
note that Gametronics has not challenged the trial court’s determination as being against the
manifest weight of the evidence. Consequently, because it failed to demonstrate its ownership of
the property, any error in the forfeiture proceedings would not entitle Gametronics to return or
possession of the Equipment. We need not determine whether the City properly followed the
statutory requirements for forfeiture because we conclude that Gametronics lacks standing to
challenge the forfeiture. Gametronics’ first assignment of error is overruled.
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III.
{¶13} Gametronics did not demonstrate that the exclusion of the Exhibits affected a
substantial right. Gametronics also has not demonstrated a current interest in the Equipment and
therefore lacks standing to challenge the forfeiture of the Equipment. Gametronics’ two
assignments of error are overruled.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Elyria Municipal
Court, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
EVE V. BELFANCE
FOR THE COURT
DICKINSON, J.
CONCURS
CARR, J
CONCURS IN JUDGMENT ONLY
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APPEARANCES:
JEFFRY V. SERRA Attorney at Law, for Appellant.
CYNTHIA ADAMS, ELyria City Prosecutor, for Appellee.