State v. Fort

[Cite as State v. Fort, 2014-Ohio-3412.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100346
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
RICHARD FORT
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-13-572511
BEFORE: Stewart, J., Celebrezze, P.J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: August 7, 2014
ATTORNEY FOR APPELLANT
James R. Willis
Willis Blackwell & Watson
323 W. Lakeside Avenue, Suite 420
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Katherine Mullin
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
MELODY J. STEWART, J.:
{¶1} Defendant-appellant Richard Fort was pulled over for a traffic violation
and attempted to flee from police resulting in a high-speed chase. When police
caught up with Fort, the investigating officer searched him incident to his arrest and
found drugs, drug paraphernalia, a large amount of cash, and several cell phones,
among other items. Fort was indicted on multiple counts that all included
forfeiture specifications with two counts having major drug offender specifications
attached. A jury found Fort guilty of the offenses, and the court found Fort guilty
of the major drug offender specifications.
{¶2} On appeal, Fort argues that the trial court erred by determining that the
cash and other items seized were proceeds of a criminal offense and, therefore, the
court should have granted his motion to return the items. He also argues that the
court committed reversible error when it allowed the state to comment on his
constitutional right to remain silent upon arrest, and lastly, that the court erred by
finding him to be a major drug offender. Finding no merit to Fort’s arguments, we
affirm the decision of the trial court.
{¶3} Officers Kevin Pozek and Kyle French of the Maple Heights Police
Department were involved in the arrest of Fort. Officer Pozek testified that in
March 2013, he observed a vehicle drive straight through a turn-only lane. He
activated his overhead lights and called for backup assistance. Once the vehicle
stopped, Pozek turned on the personal camera attached to his uniform and
approached the vehicle. The driver, later identified as Fort, rolled down his
window slightly. Pozek testified that he immediately smelled marijuana and asked
Fort where he had stored the marijuana inside of the car. Fort stated that it was
inside his pocket and went to reach for it, but Pozek demanded that Fort keep his
hands on the steering wheel. Fort then sped away while Pozek was standing next
to the driver’s side window.
{¶4} Officer French arrived on scene, and the officers pursued Fort in their
police vehicles. Fort was eventually apprehended when he stopped his car in a
driveway. Pozek patted down Fort and searched the vehicle. Fort had a large
amount of cash on him, and inside the vehicle, police found drugs and drug-related
items. Specifically, the search yielded $9,436.73, five cell phones, a folding knife,
a marijuana cigarette, 31.4 grams of crack cocaine, 8.6 grams of raw marijuana, a
bag of coins, 137.7 grams of cocaine, a digital scale, and some electronics and
clothing items.
{¶5} Fort was charged with drug trafficking, drug possession, possession of
criminal tools, and failure to comply, with forfeiture specifications. The drugs, cash,
vehicle, and the contents of the vehicle seized by police were deemed to be
contraband or proceeds from illegal activity. Fort pleaded not guilty to the charges
and moved to have the cash, vehicle, and personal items returned to him. The
state opposed the motion, and the trial court held a hearing. The court denied Fort’s
motion in part relating to the cash, vehicle, and personal items, but granted the
motion in part as it related to tools Fort needed for work as a handyman.
{¶6} During the trial after the stated rested its case, Fort moved for an
acquittal pursuant to Crim.R. 29. With regard to the forfeiture specifications,
Fort argued that the state failed to prove that any of the personal items were
connected to criminal activity. The court denied the motion in part and granted it
in part finding that the state had met its burden in demonstrating that the money, the
vehicle, and cell phones were connected to drug trafficking, but that there was
inadequate proof with respect to the clothing and other personal items. At the
conclusion of trial, Fort again moved for an acquittal relating to the forfeiture
specifications and the drug charges. The court denied the motion. The jury
found Fort guilty of the offenses with the forfeiture specifications, and the trial
court found Fort guilty of major drug offender specifications. Fort was sentenced
to 11 years in prison.
{¶7} In his first four of six assignments of error, Fort argues that the trial
court erred by denying his motion for the return of the cash and other personal
items.
{¶8} Fort first asserts that the trial court violated his due process rights when
it did not promptly conduct a hearing or rule on his motion to return the seized
property. Fort argues that he had a constitutional right to an immediate
post-seizure, pretrial hearing and also that he needed the seized money to pay his
attorney fees — suggesting that the court’s taking 37 days to rule on the motion
deprived him of his constitutional right to counsel. We find, however, that the
trial court committed no violation with regard to the timeliness in which it
conducted a hearing and ruled on Fort’s motion.
{¶9} Fort was arrested on March 12, 2013. On May 14, 2013, he moved for
the immediate return of the cash, the vehicle, and the personal items taken from the
vehicle. The state opposed the motion on May 24, 2013, and the trial court
conducted a hearing on June 20, 2013. Later that day, the court denied the motion
in part and granted it in part. The court considered the motion to be a motion for
judicial release based on hardship but determined that in this case the alleged
hardship was not financial.
{¶10} R.C. 2981.03(D)(3) provides:
Except when there is probable cause that the property is contraband, *
* * a court may conditionally release property subject to forfeiture to a
person who demonstrates all of the following:
(a) A possessory interest in the property;
(b) Sufficient ties to the community to provide assurance that the
property will be available at the time of trial;
(c) That failure to conditionally release the property will cause a
substantial hardship to the claimant.
{¶11} The court properly found that any possible hardship suffered by Fort
was not the type of hardship covered under the statute. Under R.C.
2981.03(D)(4), when determining whether a substantial hardship exists, the court
must weigh the claimant’s alleged hardship from the state’s continued possession of
the property against the risk that the property will be destroyed, damaged, lost,
concealed, or transferred if returned to the claimant. Where withholding property
would prevent a legitimate business from functioning, prevent the claimant or an
innocent person from maintaining employment, or leave the claimant or an innocent
person homeless, release of the property is favored. Id. As shown in greater
detail when addressing Fort’s second assigned error, the court properly analyzed
Fort’s claims against the state’s interest in determining what items — namely the
cash — should be returned to Fort.
{¶12} Additionally, Fort was not prejudiced by the court’s timing in ruling
on the motion, and Fort has not demonstrated that the time it took the court to rule
was unreasonable. Furthermore, Fort was not deprived of his right to counsel.
{¶13} Fort retained counsel of his choice on April 5, 2013. On June 3,
2013, Fort was declared indigent by the court, and this same counsel was appointed
by the court to represent him. At no time was Fort denied counsel due to his
inability to pay. Additionally, at all times he was represented by the same trial
counsel and cites to no authority for the proposition that ruling on his motion within
37 days is any kind of constitutional violation. Fort’s first assigned error is
without merit.
{¶14} In his second assigned error, Fort argues that the court failed to comply
with Crim.R. 12(F) by not making the proper factual findings when it denied his
motion for the return of property. We find this argument equally unpersuasive.
{¶15} Crim.R.12(F) states in pertinent part, “[w]here factual issues are
involved in determining a motion, the court shall state its essential findings on the
record.” A review of the record demonstrates that the court made the proper
findings under Crim.R.12(F) before denying Fort’s motion. The transcript from
the June 20, 2013 hearing demonstrates that the court found that the items were
lawfully seized and that the court balanced the state’s interest in preventing the
seized items from being “destroyed, damaged, lost, concealed or transferred” if
returned, with that of any alleged hardship suffered by Fort. The court rejected
Fort’s argument that without the cash he was unable to pay his attorney fees and
additionally stated, “no business will fail to operate and no loss of employment or
housing has been demonstrated.” Fort’s second assigned error is overruled.
{¶16} In his third and fourth assigned errors, Fort argues that the money,
vehicle, cell phones, electronics, knife, and scale were not shown to be proceeds of
criminal activity and should not have been subject to forfeiture. He also argues
that the court’s finding that these items were proceeds was based on insufficient
evidence.
{¶17} In general, forfeiture is disfavored in Ohio. State v. Clark, 173 Ohio
App.3d 719, 2007-Ohio-6235, 880 N.E.2d 150 (3d Dist.). The state bears the
burden of proving by a preponderance of the evidence that property is subject to
forfeiture. See State v. Watkins, 7th Dist. Jefferson No. 07 JE 54,
2008-Ohio-6634. On review, an appellate court may not reverse the trial court’s
decision where there is “‘some competent, credible evidence going to all the
essential elements of the case.’” Watkins at  34, quoting C.E. Morris Co. v. Foley
Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978), at syllabus.
{¶18} Under R.C. 2981.02, there are three kinds of property that may be
forfeited to the state: (1) contraband involved in an offense, (2) proceeds derived
from or acquired through the commission of an offense, or (3) an instrumentality
that is used in or intended to be used in the commission or facilitation of a felony.
“Contraband” is defined as property that is illegal for a person to acquire or possess
under a statute, ordinance, or rule, or that a trier of fact determines to be illegal to
possess by reason of the property’s involvement in an offense. R.C.
2901.01(A)(13). R.C. 2981.01(A)(11)(a) defines the term “proceeds” as “any
property derived directly or indirectly from an offense. ‘Proceeds’ may include,
but is not limited to, money or any other means of exchange. ‘Proceeds’ is not
limited to the net gain or profit realized from the offense.” “Instrumentality”
refers to property that is otherwise lawful to possess but is used or intended to be
used in the commission of an offense. R.C. 2981.02(A)(3).
{¶19} Contrary to Fort’s arguments, the state demonstrated that the cash and
personal items seized were instrumentalities or proceeds of criminal activity. The
state’s evidence showed that a large amount of cash in small denominations was
found on Fort incident to his arrest. Fort offered no documented source of income
to support legal employment. In fact, Fort testified that he had not disclosed any
taxable income for several years. It goes without noting that the drugs and drug
paraphernalia found in the vehicle demonstrated criminal activity. However, Fort
testified that he had lent his car to a friend a few days prior to the arrest and was
unaware of the drug items in his vehicle and also stated that the money found on
him was won from gambling. Apparently, the jury was unconvinced.
{¶20} Although the state’s evidence was circumstantial, it demonstrated by a
preponderance of the evidence that the vehicle, knife, and scale were used to
facilitate a drug operation and that the money and other forfeited personal items
were proceeds from the illegal drug trade as opposed to being the fruits of Fort’s
labor as a handyman or of his gambling prowess. Verdicts based on circumstantial
evidence will not be disturbed based on a claim of insufficiency unless it is apparent
that reasonable minds could not come to the conclusion reached by the trier of fact.
State v. Collins, 8th Dist. Cuyahoga No. 98350, 2013-Ohio-488, ¶ 22.
{¶21} In State v. Parks, 8th Dist. Cuyahoga No. 90368, 2008-Ohio-4245,
we sustained a forfeiture challenge based on a claim of insufficient evidence
where the defendant was convicted of drug possession but argued on appeal that the
state had not met its burden of demonstrating that the money seized was subject to
forfeiture because the jury acquitted him of drug trafficking and possession of
criminal tools, and the defendant’s girlfriend testified that the money seized was
hers. Id. at  25-28. In upholding the forfeiture, we reasoned that based on the
evidence presented at trial, a reasonable trier of fact could have concluded by a
preponderance of the evidence that the large amount of cash found in small
denominations inside the defendant’s pocket had been used to commit or facilitate
criminal activity. Id.{¶22} Similarly in State v. Brownridge, 3d Dist. Marion No. 9-09-24,
2010-Ohio-104, the reviewing court overruled the defendant’s claim challenging
the sufficiency of the evidence as to whether cash seized upon arrest constituted
proceeds from criminal activity. In that case, the Third District held that the trial
court properly considered that money was derived from a criminal drug offense
where large amounts of cash appeared in small denominations. The court also
found that where cash was discovered among items associated with drug trade, the
money was likely connected to criminal activity. Id. at  25.
{¶23} As mentioned earlier, the state pointed out that Fort’s lack of tax
filings in the previous five years suggested that he was not employed. The state
also pointed out that Fort was arrested in another case in April 2013 where he was
in possession of cocaine and $5,203. In that case, he also fled from police before
being arrested. Since these two cases happened within a short span of time, these
large sums of money in small denominations evidenced Fort’s continued
involvement in criminal activities. We overrule Fort’s third and fourth
assignments of error.
{¶24} In Fort’s fifth assignment of error, he argues that the trial court
violated his due process rights when it allowed the state to ask him questions
regarding his conversation with the police when he was arrested. He argues that
the trial court committed reversible error when the state asked a question relating to
Fort’s post-arrest conversation with police.
{¶25} On cross-examination, the prosecutor asked Fort to describe details
about the chase on the day he was arrested. Fort testified that when the police
stopped him after the chase, he threw a gun out of the window in order to avoid
having the police find it. The prosecutor then asked Fort, “[a]t any point during
your arrest did you tell police?” Fort’s attorney objected and stated that “[h]e’s
not obligated to tell the police anything including his name.” The court sustained
this objection. Fort argues that despite the court’s ruling, this line of questioning
constitutes reversible error pursuant to Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240,
49 L.Ed.2d 91 (1976). However we find Doyle is inapplicable to this case.
{¶26} In Doyle, the United States Supreme Court held that “it would be
fundamentally unfair and a deprivation of due process to allow the arrested person’s
silence to be used to impeach an explanation subsequently offered at trial.” Id. at
618. In contrast, in this case the state’s inquiry about whether Fort told the police
about the gun was not asked in order to impeach any version of events previously
offered by Fort.
{¶27} On direct examination, Fort testified that after he won money
gambling, he asked a friend to borrow a gun for protection in the event that he was
robbed. Fort stated that once he realized he was being pulled over by the police,
he panicked due to his having the gun and his prior run-ins with police. Fort
admitted to being in illegal possession of the gun and explained to the jury that his
fear of police uncovering the gun was the reason he fled. Fort was not offering
any explanation related to the violations for which he was charged and the state’s
question did not seek to disprove any prior account of the events. Doyle is
therefore not on point. Additionally, the trial court sustained the objection before
Fort had a chance to answer the question, so the jury remained unaware of whether
Fort said anything to the police about the gun. We see no prejudice derived from
the question. Fort’s fifth assigned error is overruled.
{¶28} In Fort’s sixth and final assigned error, he argues that the trial court
erred when it found him to be a major drug offender. According to Fort, the trial
court’s finding violates the United States Supreme Court decision in Alleyne v.
United States, 570 U.S. 1___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). Fort
argues that under Alleyne, only the jury can make a determination regarding any
fact that increases his sentence. Fort is correct, however, Alleyne is inapplicable to
the facts in this case.
{¶29} In Alleyne, the jury relied on the testimony of the victim of an armed
robbery that one of the perpetrators possessed a gun. The trial court relied on the
same testimony to determine that Alleyne or his accomplice brandished a gun.
The testimony was the same, but the findings were different. The jury found that
Alleyne possessed a gun, but made no finding with regard to whether the weapon
was brandished. The court, however determined that the gun was brandished.
The Supreme Court reviewed the statutory punishment structure, which included a
mandatory minimum sentence of five years if a crime of violence was committed
while the offender carried a firearm, seven years if the firearm was brandished, and
ten years if the firearm was discharged during the crime. 18 U.S.C. 924(c)(1)(A).
The crime was otherwise punishable by a term of imprisonment not exceeding 20
years. 18 U.S.C. 1951(a). The court held that where facts were not found by a
jury that enhanced the mandatory minimum penalty for a crime, principles of the
Sixth Amendment were violated. Alleyne at paragraph one of the syllabus.
Specifically, “[b]ecause mandatory minimum sentences increase the penalty for a
crime, any fact that increases the mandatory minimum is an ‘element’ that must be
submitted to the jury.” Id. Indeed,
“[j]uries must find any facts that increase either the statutory maximum
or minimum because the Sixth Amendment applies where a finding of
fact both alters the legally prescribed range and does so in a way that
aggravates the penalty.” [Alleyne at fn.1] “When a finding of fact
alters the legally prescribed punishment so as to aggravate it, the fact
necessarily forms a constituent part of a new offense and must be
submitted to the jury.” Id. [at 2162.]
People v. Osuna, 225 Cal.App.4th 1020, 1039, 171 Cal.Rptr.3d 55 (2014).
{¶30} Ohio’s major drug offender specifications designate a defendant
convicted of possessing or trafficking a certain amount of drugs a major drug
offender and require courts to impose as a mandatory sentence the maximum prison
term prescribed for the commission of the offense. For example, R.C.
2925.03(C)(4) provides in part:
(f) If the amount of the drug involved equals or exceeds
twenty-seven grams but is less than one hundred grams of cocaine and
regardless of whether the offense was committed in the vicinity of a
school or in the vicinity of a juvenile, trafficking in cocaine is a felony
of the first degree, and the court shall impose as a mandatory prison
term one of the prison terms prescribed for a felony of the first degree.
(g) If the amount of the drug involved equals or exceeds one
hundred grams of cocaine and regardless of whether the offense was
committed in the vicinity of a school or in the vicinity of a juvenile,
trafficking in cocaine is a felony of the first degree, the offender is a
major drug offender, and the court shall impose as a mandatory prison
term the maximum prison term prescribed for a felony of the first
degree.
(Emphasis added.) So in order for a jury to find defendants guilty of a first-degree
felony offense of drug trafficking or drug possession dealing with cocaine, it must
find that they possessed over 27 grams of the drug. For a court to sentence
defendants as major drug offenders, the court must find that they possessed over
100 grams of cocaine. These are two different findings that rely on the same
evidence.
{¶31} In Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d
524 (2002), the Supreme Court held that judicial fact-finding that increases the
mandatory minimum sentence for a crime is permissible under the Sixth
Amendment. In Alleyne, the court specifically overruled Harris and held that the
imposition of a mandatory minimum sentence above the normal minimum
punishment set by statute is an increase in the punishment a defendant may receive.
Therefore, elements necessary for a court to impose such an enhancement must be
found by the trier of fact.
{¶32} The Supreme Court’s decision in Alleyne leads to the conclusion that
Ohio’s major drug offender statutes could be constitutionally infirm where a trial
court makes factual determinations, apart from those made by the jury, that are used
to enhance a defendant’s minimum sentence. But this is not the scenario we have
before us. In Fort’s case, the jury made the determination that he possessed over
100 grams of cocaine. As a result, the court did not have to make any factual
determination that enhanced the minimum penalty of an offense in contravention of
the dictates of the Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 120
S.Ct. 2348, 147 L.Ed.2d 435 (2000), and now Alleyne. The enhancing element
was found by the jury.
{¶33} While the jury was only required to find that Fort possessed more than
27 grams of cocaine in order to find him guilty of a first-degree felony, the jury
found that appellant possessed over 100 grams. The transcript provides, “[w]ith
respect to the further finding, we the jury in this case find that the [appellant] is
guilty of trafficking in drugs. We further find that the amount of the controlled
substance in Count 1, to-wit, cocaine, was an amount at least equal to or in excess
of a hundred grams.” Tr. 228. Therefore, the fact necessary for the court to find
that Fort is a major drug offender and sentence him to the maximum term of
incarceration is a fact found by the jury. Therefore, Fort’s Sixth Amendment right
to a jury trial was not violated by the court’s finding. This final assigned error is
overruled.
{¶34} Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
Cuyahoga County Court of Common Pleas to carry this judgment into execution.
The defendant’s conviction having been affirmed, any bail pending appeal is
terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
MELODY J. STEWART, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
EILEEN T. GALLAGHER, J., CONCUR