State v. Bustamante
2013 Ohio 4975
Ohio Ct. App.2013Background
- Bustamante was convicted after a bench trial of fifth-degree trafficking in heroin and two fifth-degree possession offenses (heroin and boldenone undecylenate); acquitted of corrupting another with drugs.
- Controlled buy on Sept. 8, 2011: Bustamante sold heroin to a confidential informant for a $423 Lowe’s gift card at Bustamante’s residence; informant used the heroin in Bustamante’s presence.
- Search warrant executed Sept. 12, 2011 at Bustamante’s home seized heroin (inside), a vial of boldenone and a syringe (found in grass), cash ($1,415), electronics, and two vehicles.
- Trial court sentenced Bustamante to concurrent 11-month terms for the possession counts, consecutive to an 11-month trafficking term (aggregate 22 months).
- Forfeiture hearing awarded forfeiture of multiple items (electronics, cash, vehicles, phones, gift cards, steroid vial, scale, etc.), but the court later corrected a clerical error; Bustamante appealed sentence and forfeiture.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Restitution to Drug Task Force for $423 used to buy the gift card | State sought restitution to recoup the buy money used in the controlled purchase | Bustamante argued government is not a "victim" entitled to restitution under R.C. 2929.18 | Reversed: restitution order vacated; government informant buy money not restitution-eligible victim reimbursement |
| 2) Alleged Brady/constitutional violation and ineffective assistance (informant later "fired") | State had no prejudicial non-disclosure; information was explored at trial | Bustamante argued State failed to disclose informant’s later termination and counsel was ineffective for not objecting/moving for mistrial | Overruled: no plain error; disclosure occurred on record and defense cross-examined informant and officer, no prejudice shown |
| 3) Sufficiency of evidence for possession of boldenone (constructive/actual possession) | State relied on location of vial/syringe on property, identical syringe in his bedroom, prior drug activity, and ability to control premises | Bustamante argued no proof he had actual or constructive possession of the vial/syringe found in the yard | Overruled: viewing evidence in light most favorable to prosecution, rational factfinder could infer constructive possession; no plain error |
| 4) Forfeiture — manifest weight / proceeds or instrumentalities | State argued items were proceeds of long-term drug activity (tax records showing no reported income, investigative history) | Bustamante argued State failed to prove items were purchased with drug proceeds; only one trafficking act proved | Mostly affirmed: trial court’s forfeiture supported by competent, credible evidence (preponderance) except Bustamante’s ID card — forfeiture of ID vacated |
Key Cases Cited
- State v. Barnes, 94 Ohio St.3d 21 (2002) (plain-error standard in criminal cases)
- State v. Thompkins, 78 Ohio St.3d 380 (1997) (sufficiency reviewed as a question of law)
- State v. Jenks, 61 Ohio St.3d 259 (1991) (circumstantial evidence may sustain conviction)
- State v. Hankerson, 70 Ohio St.2d 87 (1982) (constructive possession requires ability to exercise dominion and control and awareness of presence)
- State v. Lilliock, 70 Ohio St.2d 23 (1982) (forfeiture statutes construed narrowly; presumption against forfeiture)
- Seasons Coal Co. v. City of Cleveland, 10 Ohio St.3d 77 (1984) (appellate standard defers to trier of fact where competent, credible evidence exists)