State v. Bustamante

[Cite as State v. Bustamante, 2013-Ohio-4975.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 13-12-26
v.
TYLER J. BUSTAMANTE, OPINION
DEFENDANT-APPELLANT.
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 13-13-04
v.
TYLER J. BUSTAMANTE, OPINION
DEFENDANT-APPELLANT.
Appeals from Seneca County Common Pleas Court
Trial Court Nos. 11-CR-0209 and 11 CR 0209
Judgments Affirmed in Part, Reversed in Part and Causes Remanded
Date of Decision: November 12, 2013
APPEARANCES:
Anthony D. Hall for Appellant
Derek W. DeVine and Heather N. Jans for Appellee
Case No. 13-12-26, 13-13-04
SHAW, J.
{¶1} Defendant-appellant Tyler J. Bustamante (“Bustamante”) appeals the
June 7, 2012, judgment entry sentencing Bustamante to 22 months in prison after
Bustamante was convicted in a bench trial of Trafficking in Heroin in violation of
R.C. 2925.03(A)(1),(C)(6)(a), a felony of the fifth degree, Possession of Drugs
(heroin) in violation of R.C. 2925.11(A),(C)(6)(a), a felony of the fifth degree, and
Possession of Drugs (boldenone undecylenate) in violation of R.C.
2925.11(A),(C)(2)(a), a felony of the fifth degree.1 Bustamante also appeals the
January 3, 2013, judgment entry ordering that certain property of Bustamante be
forfeited.
{¶2} The facts relevant to this appeal are as follows. On September 8,
2011, during a controlled drug buy, Bustamante sold heroin to a confidential
informant in exchange for a Lowe’s gift card in the amount of $423. The sale took
place at Bustamante’s residence. After the heroin was given to the confidential
informant, Bustamante sat in his vehicle in the driveway of his residence with the
informant while the informant snorted some of the heroin. The informant claimed
that Bustamante ordered him to use the heroin.
1
Possession of boldenone was elevated from a first degree misdemeanor to a felony of the fifth degree due
to the court’s finding that Bustamante had previously been convicted for a drug abuse offense.
-2-
Case No. 13-12-26, 13-13-04
{¶3} Subsequently, on September 12, 2011, Bustamante’s residence—
which he shared with his mother—was searched pursuant to a warrant. At the
residence, police seized what was later determined to be heroin and boldenone
undecylenate,2 a Schedule III controlled substance. The police also seized cash in
the amount of $1,415.00, various electronics, and Bustamante’s two vehicles.
{¶4} On October 20, 2011, Bustamante was indicted by the Seneca County
Grand Jury for Trafficking in Heroin in violation of R.C. 2925.03(A)(1),(C)(6)(a),
a felony of the fifth degree, Corrupting Another with Drugs in violation of R.C.
2925.02(A)(2),(C)(1), a felony of the second degree, Possession of Drugs (heroin)
in violation of R.C. 2925.11(A),(C)(6)(a), a felony of the fifth degree, with the
specification that property seized during the commission of the offense were
proceeds derived from or acquired through the commission of the offense, and
Possession of Drugs (boldenone undecylenate), in violation of R.C.
2925.11(A),(C)(2)(a), a felony of the fifth degree as a result of Bustamante being
previously convicted of a drug abuse offense. (Doc. 2).
{¶5} On November 4, 2011, Bustamante pled not guilty to the charges
against him. (Doc. 12).
2
Revised Code 3719.41(E)(1)(a) lists boldenone as a Schedule III controlled Substance under the heading
of Anabolic Steroids. Unlike the heroin, which was found in Bustamante’s room in the residence, the
boldenone was found in the grass outside the home, but still on the property.
-3-
Case No. 13-12-26, 13-13-04
{¶6} On April 25, 2012, Bustamante waived his right to a jury trial and
elected to have a trial by the court. (Doc. 55).
{¶7} On April 25-26, 2012, the court held a bench trial. At the trial,
thirteen witnesses were called including the officers conducting the controlled
drug buy, the confidential informant involved in the controlled drug buy, the
officers involved in the search of Bustamante’s residence and property, and the
individuals involved in testing the substances sent to the BCI crime lab for
chemical analysis.
{¶8} On May 2, 2012, the court found Bustamante not guilty of the most
serious offense, “Corrupting Another with Drugs.” (Doc. 58). However, the court
found Bustamante guilty of Trafficking in Heroin, and both counts of Possession
of Drugs as charged in the indictment.3 (Id.) With regard to the Possession of
Heroin charge, the court made the additional finding that the property specified in
the indictment was subject to forfeiture as instrumentalities and/or proceeds from
illegal activity. (Id.)
{¶9} On June 7, 2012, Bustamante was sentenced to serve 11 months in
prison on his conviction for Trafficking in Drugs, and 11 months in prison on each
Possession of Drugs conviction. (Doc. 61). The sentences for Possession of
3
With regard to Bustamante’s conviction for possession of boldenone, the court made the additional
finding that Bustamante had previously been convicted of a drug abuse offense to elevate the charge to a
felony of the fifth degree.
-4-
Case No. 13-12-26, 13-13-04
Drugs were to be served concurrent to each other, but consecutive to the sentence
for Trafficking in Drugs, for an aggregate prison term of 22 months. (Id.) As
there was a discussion regarding the items to be forfeited, the court set a forfeiture
hearing for a later date. (Id.) Bustamante appeals from this judgment entry of
sentence. (Id.)
{¶10} On November 21, 2012, the court held a hearing on forfeiture of
property that was seized and subject to forfeiture. On January 3, 2013, the court
filed an entry listing the items to be distributed to those who had a valid claim, and
detailing those items that were to be forfeited by Bustamante as either
instrumentalities or proceeds of a crime. (Doc. 110).
{¶11} On February 15, 2013, the trial court filed a nunc pro tunc judgment
entry correcting an address on the forfeiture entry. (Doc. 111). Bustamante also
appeals from this forfeiture entry.
{¶12} It is from the June 7, 2012, judgment entry of sentence, and the
February 15, 2013, judgment entry regarding forfeiture that Bustamante appeals,
asserting the following assignments of error for our review.
ASSIGNMENT OF ERROR 1
THE TRIAL COURT ERRED WHEN IT ORDERED THE
APPELLANT TO PAY RESTITUTION TO A NON-VICTIM.
-5-
Case No. 13-12-26, 13-13-04
ASSIGNMENT OF ERROR 2
THE TRIAL COURT COMMITTED A REVERSIBLE ERROR
BY DEPRIVING THE APPELLANT OF HIS
CONSTITUTIONAL RIGHTS.
ASSIGNMENT OF ERROR 3
THE TRIAL COURT HAD INSUFFICIENT EVIDENCE TO
CONVICT THE APPELLANT OF THE CRIME OF
POSSESSION OF DRUGS.
ASSIGNMENT OF ERROR 4
THE TRIAL COURT’S DECISION TO SEIZE THE
APPELLANT’S PROPERTY WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
{¶13} For the sake of clarity, we elect to address the assignments of error
out of the order in which they were raised.
Second Assignment of Error
{¶14} In Bustamante’s second assignment of error, Bustamante argues that
he was deprived of his constitutional rights. Specifically, Bustamante contends
that the State failed to disclose that the confidential informant involved in the
controlled drug buy was “fired” for using drugs in a different controlled drug buy
shortly after Bustamante sold the informant heroin. In addition, Bustamante
argues that his counsel was ineffective for failing to object when this information
was presented and for failing to move for a mistrial.
{¶15} At the outset, we would note that no objection was raised at the trial
regarding this issue, therefore, Bustamante has waived all but plain error. In order
-6-
Case No. 13-12-26, 13-13-04
to have plain error under Crim.R. 52(B) there must be an error, the error must be
an “obvious” defect in the trial proceedings, and the error must have affected
“substantial rights.” State v. Barnes, 94 Ohio St.3d 21, 27, (2002). Plain error is
to be used “‘with the utmost caution, under exceptional circumstances and only to
prevent a manifest miscarriage of justice.’” Id. quoting State v. Long, 53 Ohio
St.2d 91 (1978), paragraph three of the syllabus.
{¶16} On appeal, Bustamante claims that the State failed to disclose that
the confidential informant in this case was “fired” as an informant after he
purportedly used drugs during a subsequent investigation involving a different
individual. According to Bustamante, the State thus failed to disclose potential
exculpatory evidence.
{¶17} To begin our analysis, we would note that there is no indication from
the transcript that the State ever failed to disclose the fact that the confidential
informant was subsequently “fired.” When this information was first presented at
trial through the cross-examination testimony of Detective Charles Boyer, no
objection was made that the information was not disclosed, and defense counsel
cross-examined Detective Boyer with this information. (Tr. at 96). There is no
indication in the record that trial counsel was surprised by this information, or that
the State ever failed to disclose this information.
-7-
Case No. 13-12-26, 13-13-04
{¶18} However, even assuming the State failed to disclose this information,
Bustamante’s counsel was still able to fully cross-examine both Detective Boyer
and the confidential informant regarding the informant being “fired” for his use of
drugs during the controlled buy operations. Therefore, Bustamante can show no
resulting prejudice.
{¶19} Furthermore, Bustamante strangely argues on appeal that the
information of the informant’s “firing” was most relevant as exculpatory evidence
to the charge of “Corrupting Another with Drugs.” However, Bustamante was
acquitted of that charge and thus no error could further assist him regarding that
acquittal. As Bustamante’s claim of the State’s purported failure to disclose the
confidential informant’s subsequent drug use might relate to Bustamante’s
convictions for possession of heroin, possession of boldenone undecylenate, and
for trafficking in heroin, we find that the confidential informant’s subsequent
termination would have no bearing on the outcome of those charges and no
relevance to Bustamante’s guilt.
{¶20} Thus for all of the foregoing reasons we cannot find any error, let
alone plain error. As we have found no error, we cannot find that Bustamante’s
counsel was ineffective for failing to object or move for a mistrial. Accordingly,
Bustamante’s second assignment of error is overruled.
-8-
Case No. 13-12-26, 13-13-04
Third Assignment of Error
{¶21} In Bustamante’s third assignment of error, Bustamante contends that
there was insufficient evidence to convict him of Possession of boldenone
undecylenate. Specifically, Bustamante argues that the State failed to present any
evidence that Bustamante had either actual or constructive possession of a vial that
contained a syringe and boldenone undecylenate4 that was seized from
Bustamante’s yard.
{¶22} At the outset, we note that Bustamante failed to move for a Crim.R.
29(A) judgment of acquittal. Failing to move for a judgment of acquittal pursuant
to Crim.R. 29(A), Bustamante waived all but plain error regarding the sufficiency
of the evidence. See Crim.R. 29(A); State v. Cooper, 3d Dist. No. 9-06-49, 2007-
Ohio-4937, ¶ 23, citing State v. Roe, 41 Ohio St.3d 18, 25 (1989).
{¶23} Sufficiency of the evidence is a test of adequacy rather than
credibility or weight of the evidence. State v. Thompkins, 78 Ohio St.3d 380, 386
(1997). Whether the evidence is legally sufficient to sustain a verdict is a question
of law. Id. In reviewing the record for sufficiency, the relevant inquiry is whether,
after viewing the evidence in a light most favorable to the prosecution, any
rational trier of fact could have found the essential elements proven beyond a
reasonable doubt. State v. Smith, 80 Ohio St.3d 89, 113 (1997).
4
The Boldenone Undecyclenate was “a liquid inside a glass vial, which weighed 9.1 grams.” (Tr. at 118).
-9-
Case No. 13-12-26, 13-13-04
{¶24} Possession of Drugs, specifically possession of schedule III
controlled substances (which includes boldenone undecylenate), is criminalized
pursuant to R.C. 2925.11(A),(C)(2)(a), which reads,
(A) No person shall knowingly obtain, possess, or use a
controlled substance or a controlled substance analog.
***
(C) Whoever violates division (A) of this section is guilty of one
of the following:
***
(2) If the drug involved in the violation is a compound,
mixture, preparation, or substance included in schedule III, IV,
or V, whoever violates division (A) of this section is guilty of
possession of drugs. The penalty for the offense shall be
determined as follows:
(a) Except as otherwise provided in division (C)(2)(b), (c), or
(d) of this section, possession of drugs is a misdemeanor of the
first degree or, if the offender previously has been convicted of a
drug abuse offense, a felony of the fifth degree.
{¶25} Possession of drugs can be either actual or constructive. Cooper,
supra, at ¶ 25. See also State v. Wolery, 46 Ohio St.2d 316, 329 (1976), certiorari
denied, 429 U.S. 932, 97 S.Ct. 339; State v. Haynes, 25 Ohio St.2d 264 (1971). “A
person has ‘actual possession’ of an item if the item is within his immediate
physical possession.” State v. Williams, 4th Dist. No. 03CA2736, 2004-Ohio-
1130, ¶ 23 citing State v. Fugate, 4th Dist. No. 97CA2546 (Oct. 2, 1998). A
-10-
Case No. 13-12-26, 13-13-04
person has “constructive possession” if he is able to exercise domination and
control over an item, even if the individual does not have immediate physical
possession of it. State v. Hankerson, 70 Ohio St.2d 87 (1982), syllabus; Wolery,
supra. For constructive possession to exist, “[i]t must also be shown that the
person was conscious of the presence of the object.” Hankerson, 70 Ohio St.2d at
91. Finally, the State may prove the existence of the various elements of
constructive possession of contraband by circumstantial evidence alone. State v.
Stewart, 3d Dist. No. 13-08-18, 2009-Ohio-3411, ¶ 51; State v. Jenks, 61 Ohio
St.3d 259, 272-73 (1991), superseded by constitutional amendment on other
grounds as stated in State v. Smith, 80 Ohio St.3d 89, 1997-Ohio-355.
{¶26} In this case, the State introduced evidence that Bustamante shared a
residence with his mother. Bustamante’s residence and the premises were
searched pursuant to a search warrant subsequent to the controlled drug buy
operation wherein Bustamante sold a confidential informant heroin. During the
search of Bustamante’s residence and the premises, officers located “a vial of
suspected steroids outside [the residence] in the grass area next to the shed * * *
along with a small vial containing a * * * needle or syringe.”
{¶27} Inside the residence, the police found what was later determined to
be heroin, and they also “located a syringe the same size, same make, same
everything * * * in [Bustamante’s] bedroom” as the syringe in the yard. (Tr. at
-11-
Case No. 13-12-26, 13-13-04
59). According to the police, “the two needles were the same but one was found
with the suspected steroids outside in the grass area with the vial of * * *
suspected steroids and the – the syringe. And then [the police] found another
syringe or needle in the same * * * size, shape, make in the bedroom with Tyler
Bustamante.” (Tr. at 59).
{¶28} Thus police located the vial on the property where Bustamante
resided, where he was able to exercise dominion and control over it. A needle was
found with the vial of steroids that was identical to the type of needle located in
Bustamante’s room, enabling the trier of fact to infer a connection. In addition to
this evidence, Bustamante sold heroin during the controlled drug buy to the
confidential informant and had the informant use the heroin outside the residence
in a car parked in the driveway. Therefore the factfinder could infer that
Bustamante was in the habit of possessing, selling, or using drugs in the yard
where he resided.5
{¶29} Based on the facts of this case we cannot find that there is an
“obvious defect” in the trial court’s finding or that a “manifest miscarriage of
justice” existed giving rise to plain error. Accordingly, we cannot find that
5
The State also contends that because Bustamante was at the gym at one point on the day of the controlled
buy that the factfinder could infer that Bustamante was using the steroids. However, there is no indication
that Bustamante used the steroids and mere use of a gym would not entitle the State to such an inference.
-12-
Case No. 13-12-26, 13-13-04
insufficient evidence existed to convict Bustamante of Possession of Drugs.
Therefore, Bustamante’s third assignment of error is overruled.
Fourth Assignment of Error
{¶30} In Bustamante’s fourth assignment of error, he argues that the trial
court’s decision to order that certain property of his be forfeited was against the
manifest weight of the evidence. Specifically, Bustamante disputes the trial
court’s order regarding the following items: digital camera, Samsung cell phones,
flip video camera, numerous gift cards, visa debit card, Bustamante’s
identification card, Dell Inspiron laptop computer, Panasonic flat-screen
television, HP Notebook computer, silver LG Verizon phone, numerous cell phone
chargers, numerous GPS units, rims with tires, $1,415.00 in cash, and the 1972
Chevrolet Chevelle SS.
{¶31} Revised Code Chapter 2981 permits “‘[a] law enforcement officer
[to] seize property that the officer has probable cause to believe is property subject
to forfeiture.’” State v. North, 1st Dist. No. C-120248, 2012-Ohio-5200 ¶ 7
quoting R.C. 2981.03(A)(2). “Property subject to forfeiture” is defined to include
“[p]roceeds derived from or acquired through the commission of an offense.”
R.C. 2981.02(A)(2). In Dayton Police Dept. v. Byrd, 2d Dist. No. 23551, 2010–
Ohio–4529 ¶ 10, the court explained as follows:
-13-
Case No. 13-12-26, 13-13-04
Generally, the term “proceeds” refers to the profit gained
directly or indirectly from an offense. R.C. 2981.01(B)(11). The
burden is on the state to show that the money has any connection
to the underlying criminal offense. State v. Ali (1997), 119 Ohio
App.3d 766, 770, 696 N.E.2d 285. The state “must demonstrate
that it is more probable than not, from all the circumstances,
that the defendant used [the money] in the commission of
criminal offenses.” (Citations omitted.) Id. at 769. The same
logic applies regarding sufficient proof that the money was
proceeds of the criminal offense. Id. at ¶ 10.
{¶32} A prosecuting attorney may pursue forfeiture of seized property in a
criminal proceeding under R.C. 2981.04, a civil proceeding under R.C. 2981.05,
or both. R.C. 2981.03(F). Criminal forfeiture is initiated by including in the
charging instrument a specification consistent with R.C. 2941.1417 or by
providing the defendant with “prompt notice,” in conformity with Crim.R. 7(E),
that the property is subject to forfeiture. R.C. 2981.04(A)(1) and (A)(2). In such
actions, the State bears the burden of proof to show by a preponderance of the
evidence that the seized property is subject to forfeiture under R.C. 2981.02. See
R.C. 2981.04; See also State v. Brownridge, 3d Dist. No. 9–09–24, 2010–Ohio–
104, ¶ 21.
{¶33} Generally, forfeiture is not favored in Ohio. State v. Clark, 173 Ohio
App.3d 719, 2007–Ohio–6235, ¶ 8 (3d Dist.); Marmet Drug Task Force v. Paz, 3d
Dist. No. 9-11-60, 2012-Ohio-4882. “Whenever possible, [forfeiture] statutes
must be construed so as to avoid a forfeiture of property.” State v. Lilliock, 70
-14-
Case No. 13-12-26, 13-13-04
Ohio St.2d 23, 26 (1982). Moreover, forfeiture is only appropriate when “the
expression of the law is clear and the intent of the legislature manifest.” Id.{¶34} We do not disturb a trial court's findings in forfeiture cases if there is
“‘some competent, credible evidence going to all the essential elements of the
case.’” State v. Watkins, 7th Dist. No. 07 JE 54, 2008–Ohio–6634, ¶ 34, quoting,
C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279 (1978), syllabus. When
employing this standard of review, a court has an obligation to presume the
findings of the trier of fact are correct. Seasons Coal Co. v. City of Cleveland, 10
Ohio St.3d 77, 79–80 (1984). Mere disagreement over the credibility of witnesses
or evidence is not sufficient reason to reverse a judgment. Id. at 80.
{¶35} In the trial court’s verdict, the trial court found Bustamante guilty of
Possession of Heroin, and made the additional finding that:
the property specified in the search warrant inventory, all
owned and in the possession of the defendant, Tyler J.
Bustamante, during the commission of the offense and used for
purposes of facilitating the offense and/or are proceeds derived
from or acquired through the commission of an offense * * *
shall be subject to forfeiture.
(Doc. 58).6 The court then set the matter of the forfeiture of Bustamante’s
property for a hearing.
6
The finding of guilt specifically listed the property that was subject to forfeiture.
-15-
Case No. 13-12-26, 13-13-04
{¶36} On November 21, 2012, the court held a Forfeiture Hearing pursuant
to R.C. 2981.04. At that hearing, the State informed the court that it had been
notified by two parties claiming some of the seized property. The court also heard
the testimony of Chelsea Dunn, who testified that some of the seized items were
hers. After hearing the arguments of the parties and Dunn’s testimony, the court
ordered that the following items were to be forfeited:
(1) Silver digital scale; numerous packages of black tar heroin;
(1) digital camera; (1) vial of steroids; numerous balloons and
papers with residue; numerous Samsung cell phones; (1) Flip
video camera; numerous Gift Cards; (1) Visa Debit Card; (1)
Tyler J. Bustamante Ohio ID card; (1) Dell Inspiron laptop
computer; (1) Panasonic flat-screen t.v.; (1) HP Notebook
computer; (1) silver LG Verizon phone; numerous cell phone
chargers; numerous GPS units; (4) rims with tires; and one
thousand four hundred fifteen dollars ($1,415.00) U.S. currency
seized in the above-captioned case is FORFEITED * * *.
It is further ORDERED, ADJUDGED AND DECREED that the
1972 Chevrolet Chevelle SS motor vehicle * * * and 2002
Cadillac Deville motor vehicle * * * seized in the above-
captioned case are FORFEITED.
(Doc. 111).7
{¶37} On appeal, Bustamante challenges the forfeiture of all but the 2002
Cadillac Deville, the digital scale, and the drugs and paraphernalia. Bustamante
argues that the remaining items were not instrumentalities used in a crime, and that
the State did not show that the forfeited items were purchased through proceeds of
7
Specific items claimed by the Tiffin Motel, and Lindsey Whitehead were returned and not forfeited.
-16-
Case No. 13-12-26, 13-13-04
a crime by a preponderance of the evidence. Bustamante contends that the State
only showed evidence of one drug trafficking transaction, not ongoing conduct.
Conversely, the State contends that all of the forfeited items Bustamante is
complaining about were purchased with money Bustamante obtained through drug
trafficking and that therefore as proceeds of a crime, the items were subject to
forfeiture.
{¶38} As proof to satisfy its burden that the forfeited items were “proceeds”
of a crime, the State introduced a certified letter from the Ohio Department of
Taxation stating that as of October 19, 2011, Bustamante had not filed any tax
returns for the years of 2000 through 2010, showing that Bustamante had no
reported income.8 (Tr. at 64); (State’s Ex. 28). In addition, the State introduced
evidence that Bustamante had otherwise been involved in selling drugs on and off
for over a decade,9 and that the police were aware Bustamante lacked gainful
employment. (State’s Ex. 6); (Tr. at 169). Detective Sergeant Donald Joseph
testified that these were the reasons that Bustamante’s vehicles were seized,
8
In State v. Dodson, 12th Dist. No. CA2010-08-191, 2011-Ohio-6222, the Twelfth District Court of
Appeals determined that a lack of an income through tax records, when combined with statements of the
defendant that he made $10,000 to $15,000 per month were sufficient to show that cash subject to forfeiture
“was proceeds derived from or acquired through the commission of trafficking in marijuana.” Dodson, at ¶
60.
9
State’s Exhibit 6 contained Detective Charles Boyer’s affidavit used in obtaining the warrant to search
Bustamante’s residence. In that exhibit, Detective Boyer averred that Bustamante had been involved in
drug activity dating back to 1998, when Bustamante was still a Juvenile. Detective Boyer averred that over
the following thirteen years Bustamante had been involved in numerous investigations and charged
numerous times with drug related crimes. In the affidavit, Detective Boyer provides summaries of those
incidents and investigations.
-17-
Case No. 13-12-26, 13-13-04
because he believed they were paid for by drug proceeds. (Tr. at 169). The State
thus contends that Bustamante had no income based on the tax records, and
therefore he could not have afforded the forfeited items if not for his continuing
history of selling drugs.
{¶39} In countering the State’s evidence, Bustamante contends that the tax
records were insufficient. Bustamante also argues that he was a student at Tiffin
University and had received loan “checks” from the university; however, there is
no testimony regarding this issue in the record. The only statements made
regarding the alleged checks were made by Bustamante’s counsel, rather than
elicited as testimony at trial or at the forfeiture hearing.
{¶40} Notably Bustamante cites no case law in support of his argument that
the State failed to meet its relatively low burden of preponderance of the evidence.
While the tax records alone may only have indicated that Bustamante did not
make enough money to file taxes, the State also introduced some competent
credible evidence that Bustamante had been involved in a continuous course of
drug conduct for over a decade. Bustamante produced no contrary evidence
whatsoever to contradict the State’s assertion that Bustamante purchased the
valuable items through proceeds of a crime. Thus unlike in State v. Conway, 8th
Dist. No. 96905, 2012-Ohio-590, wherein the Eighth District Court of Appeals
found forfeiture improper where there was some other indication that the
-18-
Case No. 13-12-26, 13-13-04
defendant had made money in the preceding years, here there is absolutely no
evidence that Bustamante had earned any money otherwise.10
{¶41} Thus evidence of Bustamante being involved in drug trafficking on
and off for over a decade, when combined with the tax records showing that
Bustamante had no reported income, provides some competent credible evidence
that supports the trial court’s finding that it was more likely than not that the
forfeited items were purchased with drug proceeds.
{¶42} However, one item does not fall into the same category as the others.
Specifically, Bustamante’ ID card is not an instrumentality used in the offense and
it is not an item necessarily purchased with drug proceeds. Moreover, there is no
showing that unlike the other forfeited items of obvious value, Bustamante could
not have acquired the ID card without expending drug proceeds. Therefore, we
vacate the forfeiture of Bustamante’s ID card.
{¶43} Accordingly, we sustain Bustamante’s assignment of error only to
the extent that we vacate the forfeiture of his ID card; however, Bustamante’s
fourth assignment of error is overruled in all other respects.
10
Bustamante also claims that he worked as a confidential informant, but the record seems to establish that
rather than working for money as the confidential informant in this case did, Bustamante was working as a
confidential informant to “work off” drug trafficking charges.
-19-
Case No. 13-12-26, 13-13-04
First Assignment of Error
{¶44} In Bustamante’s first assignment of error, Bustamante contends that
the trial court erred by ordering Bustamante to pay restitution to the Seneca
County Drug Task Force METRICH Enforcement Unit. Specifically, Bustamante
argues that the trial court erred by ordering him to pay back the $423 that
METRICH used to purchase a Lowe’s gift card that was exchanged for heroin
from Bustamante.
{¶45} This Court has held that the plain language of R.C. 2929.18(A)(1)
makes restitution available only to actual victims of an offense. State v. Taylor, 3d
Dist. No. 13-10-49, 2011-Ohio-5080, ¶ 57, citing State v. Stewart, 3d Dist. No.
16–08–11, 2008–Ohio–5823, ¶ 9, citing State v. Toler, 174 Ohio App.3d 335, 338,
2007–Ohio–6967. “A victim of a crime is defined as the person or entity that was
the ‘object’ of the crime.” State v. Samuels, 4th Dist. No. 03CA8, 2003-Ohio-
6106, ¶ 5, citing Black's Law Dictionary (5th Ed.1979) 1405. In certain
circumstances, a government entity may be considered a victim of a crime under
R.C. 2929.18(A)(1), for example, when government funds are embezzled or when
government property is vandalized. Id. However, a government entity voluntarily
advancing its own funds to pursue a drug buy through an informant is not one of
the scenarios contemplated by R.C. 2929.18(A)(1). Taylor, at ¶ 57, citing State v.
Pietrangelo, 11th Dist. No.2003–L–125, 2005–Ohio–1686, ¶ 12–15; State v.
-20-
Case No. 13-12-26, 13-13-04
Justice, 5th Dist. No. 09–CA–66, 2010–Ohio–4781, ¶ 24; State v. Jones, 7th Dist.
Nos. 08 JE 20, 08 JE 29, 2010–Ohio–2704, ¶ 44; State v. Collins, 6th Dist. Nos.
H–09–001, H–09–005, 2009–Ohio–6346, ¶ 52, State v. Frazier (Mar. 9, 2011), 4th
Dist. No. 10CA15.
{¶46} Seneca County Drug Task Force METRICH Enforcement Unit in
the amount of $423 for the purchase of the Lowe’s gift card. The State concedes
that the trial court’s order is error, and under our own case law, we find that this is,
in fact, error. In light of this error, we hereby remand the matter with instructions
for the trial court to vacate the order of restitution. Accordingly, Bustamante’s
first assignment of error is sustained.
{¶47} For the foregoing reasons the judgment of the Seneca County
Common Pleas Court is affirmed in part, vacated in part, and reversed in part and
the matter is remanded to the trial court for further proceedings consistent with our
disposition of the first assignment of error.
Judgment Affirmed in Part,
Reversed in Part and
Cause Remanded
PRESTON, P.J. and WILLAMOWSKI, J., concur.
/jlr
-21-