IN RE: $449 U.S. CURRENCY; а 1965 FORD MUSTANG, VIN 5707T643579 and 5F0703711212; and FOUR NEW TOYO TIRES SEIZED FROM DARWIN FRIERSON.
APPEAL NO. C-110176
TRIAL NO. M-09-1298
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
April 18, 2012
[Cite as In re $449 U.S. Currency, 2012-Ohio-1701.]
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Rodney J. Harris, for Appellee.
Please note: This case has been removed from the accelerated calendar.
O P I N I O N.
{¶1} This appeal arises in the context of a civil forfeiture action instituted by the Hamilton County Prosecutor involving $449 in currency, a 1965 Ford Mustang,1 and four unattached Toyo tires that the Cincinnati police had sеized from the residence of Darwin Frierson. At the conclusion of the forfeiture hearing, a magistrate ordered forfeiture of the property.
{¶2} Upon Frierson‘s objection, the trial court rejected the magistrate‘s decision in part and ordered the state to return the Mustang and the tires to Frierson. The state appealed. Because the record demonstrates that Frierson had standing to challenge the forfeiture and that misconduct by the trial judge at the objection hearing was harmless error, we affirm.
I. Background Facts
{¶3} Frierson was arrested on December 4, 2009, for drug trafficking. The arrest occurred after the police had observed Frierson make two drug sales to an informant for $2,800. The police recovered approximately five pounds of marijuana from the Oldsmobile that Frierson was operating at the time of his arrest. Later that day the police seized from Frierson‘s house the property that became the subject of these forfeiture proceedings. The police believed that these items were proceeds of Frierson‘s drug trafficking activity.
{¶4} During an interview, Frierson admitted to selling marijuana “to make ends meet” while unemployed and informed the police that the Mustang had been given to him. The police found nо drug paraphernalia in the Mustang, nor had they seen Frierson operate it during a few weeks of surveillance. Later, Frierson was convicted of drug trafficking.
{¶6} When Dillman contacted Frierson, he told her that Vollmer had recently given the Mustang to Frierson‘s father, Lenny, and that his father had then given it to him. Dillman contacted Vollmer, who confirmed that he had recently given the Mustang to Lenny, a friend and former business colleague. During the same conversation, Dillman advised Vollmer that the Mustang remained titled in his name.
{¶7} Although the state had identified both Frierson and Vollmer as persons with interest in the рroperty in the complaint for forfeiture, only Frierson answered the forfeiture complaint and requested the return of the property.
{¶8} At the forfeiture hearing, Vollmer testified that after unsuccessfully trying to sell the Mustang, he gifted it to Lenny in mid-November with the understanding that Lenny wanted to give it to Frierson. Further, he stated that his first attеmpt to transfer title was unsuccessful, but that he successfully transferred the title out of his name after the property had been seized.
{¶9} Frierson and his father Lenny testified that Vollmer gave the Mustang to Lenny, that Lenny gave it to Frierson without any consideration or expectation of future consideration, and that Lenny еventually had the Mustang titled directly in Frierson‘s name. Neither the state nor Frierson, however, presented documentary evidence of the Mustang‘s certificate of title information after Dillman‘s initial search.
{¶11} The remainder of the testimony at the hearing focused on Frierson‘s unemployment during the several months before his arrest, after years of employment with the same compаny, and Frierson‘s monthly expenses and revenue sources, including unemployment compensation and contributions from family members, during the months of unemployment. The record contains no evidence that Frierson, who possessed the Mustang for a short time before the seizure, expended any money for the upkeep of the Mustang.
{¶12} The magistrate ordered all the property forfeited after finding that Frierson‘s expenses had exceeded his legitimate income. Additionally, with respect to the Mustang, the court found that Vollman‘s gift had not been completed because the certificate of title had not been suсcessfully transferred out of Vollman‘s name and that Frierson “was never in the chain of title for the Mustang, never gave any consideration for it, and did not have sufficient income to afford it.” Frierson filed objections contesting the forfeiture of the Mustang and the tires, claiming that the state failed to prove the requisite nexus between the property and the offense.
{¶13} At a hearing on the objections, the state argued for the first time that Frierson lacked standing to contest the forfeiture of the Mustang. The trial judge continued the case for the stated reasons of reviewing the transcript from the magistrate‘s hearing and retrieving thе current “VIN registration” for the Mustang.
{¶14} When the objections hearing resumed, the trial judge adopted the state‘s position that in Ohio ownership of a vehicle is determined by the certificate of title, that “forfeiture pertains to title,” and that, therefore, a person outside of the chain of title lacks standing to contest a forfeiture. Frierson argued otherwise.
{¶16} After an “independent review of the evidence” presented, the trial judgе sustained Frierson‘s objections, rejected the magistrate‘s decision with respect to the Mustang and tires, and ordered that the state return the Mustang and tires to Frierson because the state failed to establish any nexus between that seized property and Frierson‘s drug trafficking. This appeal followed.
{¶17} In the first assignment of error, the state challenges the trial court‘s decision to return the Mustang and the tires to Frierson on the ground that Frierson lacked standing to contest their forfeiture. In the second assignment of error, the state argues that the trial judge exceeded the scope of the “independent review” permittеd under
II. Standing
{¶18} The civil forfeiture proceedings in this case are governed by
{¶20} In a civil forfeiture proceeding brought under
{¶21} The forfeiture statutes provide procedures for “a person with an interest in the property subject to forfeiture” to petition for release of the property аt various times during the civil forfeiture proceedings. See
{¶22} According to the state, Frierson lacked standing to contest the forfeiture of the Mustang because it was titled in Vollmer‘s name at the time of the
{¶23} As recognized by the Ohio Supreme Court, the main goal of Ohio‘s Certificate of Motor Vehicle Title Law is to protect innocent purchasers of motor vehicles. Saturn of Kings Automall, Inc. v. Mike Albert Leasing, Inc., 92 Ohio St.3d 513, 516, 751 N.E.2d 1019 (2001). See also State ex rel. City Loan & Sav. Co. v. Taggert, 134 Ohio St. 374, 375, 17 N.E.2d 758 (1938) (discussing predecessor to current statute that contained similar language.) To that end, a change in ownership occurs when a certificate of title is issued in the name of the purchaser.
{¶24} “Standing” involves “[a] party‘s right to make a legal claim оr seek judicial enforcement of a duty or right.” Black‘s Law Dictionary 1442 (8th Ed.2004). The party must have “some real interest in the subject matter of the action.” State ex rel. Dallman v. Court of Common Pleas, 35 Ohio St.2d 176, 298 N.E.2d 515 (1973), syllabus, cited in Wells Fargo Bank, N.A. v. Byrd, 178 Ohio App.3d 285, 2008-Ohio-4603, 897 N.E.2d 722, ¶ 7 (1st Dist.).
{¶25} The state cites two federal cases applying federal forfeiture statutes to demonstrate that Frierson‘s possession of the Mustang had not provided him standing. The courts in those cases, however, held that the claimants’ possessory interests had confered Article III standing, but that the claimants had failed to establish their claims as “innocent owners” due to the application of the relevant state certificate of title laws. See United States v. One Lincoln Navigator 1998, 328 F.3d 1011 (8th Cir.2003) (applying Arkansas law) and United States v. 1977 Porsche Carrera 911, 946 F.2d 30 (5th Cir.1991) (applying Texas law).
{¶26} Ohio courts have held that Ohio‘s Certifiсate of Motor Vehicle Title Law has limited application beyond cases where the parties are rival claimants to
{¶27} Specifically, the Ohio Supreme court has rejected the state‘s position that in a forfeiture action there can be no interest in a vehicle except аs evidenced by the certificate of title. State v. Shimits, 10 Ohio St.3d 83, 85, 461 N.E.2d 1278 (1984). See also State v. Wegmiller, 88 Ohio App.3d 68, 623 N.E.2d 131 (8th Dist.1993) (holding that in a proceeding brought under a former forfeiture statute, the state can demonstrate the existence of an equitable interest in a vehicle that is then subject to forfeiture notwithstanding the Certificate of Motor Vehicle Title Law); In re: 1990 LEXUS LUS VIN JT8UF11E7L001377 SEIZED FROM DARRICK BOSTON, 1st Dist. No. C-990403, 2000 Ohio App. LEXIS 1344, 41 U.C.C. Rеp. Serv. 2d (Callaghan) 337 (Mar. 31, 2000) (holding that perfection by possession under
{¶28} Further, forfeitures are not favored in law or equity, and the statutory forfeiture provisions must be strictly construed against such a result. See Dept. of Liquor Control v. Sons of Italy Lodge 0917, 65 Ohio St.3d 532, 534, 605 N.E.2d 368 (1992); City of Dayton Police Dept. v. Byrd, 189 Ohio App.3d 461, 2010-Ohio-4529, 938 N.E.2d 1110, ¶ 28 (2nd Dist.).
{¶29} This case simply involves whether Frierson‘s interest in the Mustang had been acquired by proceeds. It does not involve competing claims of title and ownership. As soon as the state seized the Mustang as proceeds from Frierson‘s criminal behavior, the state took the position thаt Frierson had an interest in the Mustang, even though the interest fell short of legal ownership of the vehicle.
{¶30} We reject the state‘s position that Frierson lacked standing to challenge the forfeiture of the Mustang because he lacked legal ownership evidenced
{¶31} Finally, the state failed to present any argument to support its claim that Frierson lacked standing to challenge the forfeiture of the tires, which were not attached to any vehicle at the time of seizure. Accordingly, the first assignment of error is meritless and we overrule it.
III. Judicial Misconduct
{¶32} In its second assignment error, the state argues that the trial judge exceeded the bounds of the independent review of the magistrate‘s decision when she procured her own evidence and consulted an unsworn witness, whom the state could not cross-examine. We agree.
{¶33} In this case, the matter was referred to a magistrate for a forfeiture hearing, implicating
{¶34} The trial court clearly exceeded its authority under
{¶35} Rather, as we have already held, after our de novo review of
{¶36} Therefore, although thе trial court‘s misconduct was error, we hold that the error was harmless, and we overrule the second assignment of error. Accordingly, we affirm the trial court‘s decision denying the state‘s complaint for a civil forfeiture order pertaining to the Mustang and the tires and ordering a release of this property to Frierson.
{¶37} The judgment of the trial court is affirmed.
Judgment affirmed.
DINKELACKER, P.J., HENDON and CUNNINGHAM, JJ.
Please note:
The court has recorded its own entry on the date of the release of this decision.