MARMET DRUG TASK FORCE, PETITIONER-APPELLEE, v. OSCAR PAZ, RESPONDENT-APPELLANT.
CASE NO. 9-11-60
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY
October 22, 2012
2012-Ohio-4882
ROGERS, J.
Appeal from Marion County Common Pleas Court Trial Court No. 11 CV 0241
Judgment Reversed
APPEARANCES:
Robert E. Wilson for Appellant
Brent W. Yager and Gregory A. Perry for Appellee
{¶1} Defendant-Appellant, Oscar Paz, appeals the judgment of the Court of Common Pleas of Marion County ordering the forfeiture of $4,450.00 in United States currency that was seized from Paz‘s person after a traffic stop. On appeal, Paz argues that the trial court‘s order should be reversed because (1) Petitioner-Appellee, Marmet Drug Task Force (“Petitioner“), lacked standing to initiate forfeiture proceedings against him; and (2) Petitioner presented insufficient evidence to establish that the seized money was connected to criminal activity. For the reasons that follow, we reverse the trial court‘s judgment.
{¶2} This matter arose from an April 4, 2011 incident in which Marion police authorities stopped Paz‘s truck due to inoperative taillights. When Officer Andrew Isom approached the vehicle, he smelled the odor of marijuana from the truck cabin. Paz was driving the truck at the time of the stop and Sharee Fraker was seated on the passenger side. Due to Officer Isom‘s previous investigations, he recognized both Paz and Fraker as persons with criminal drug trafficking histories.
{¶3} After Officer Isom informed Paz of the infraction, Paz requested to get out of the vehicle so he could inspect the taillights. When Paz got out of the truck, Officer Isom performed a pat down search. In the course of the search, he discovered a knife and a substantial amount of cash on Paz‘s person.
{¶5} There is significant divergence between the authorities’ and Paz‘s versions of the events that occurred next. Officer Isom testified that Paz failed to identify the correct amount of money and instead said he had around $3,000.00. Officer Isom‘s testimony also indicates that Paz provided a variety of reasons for his possession of the money. First, Paz said he had withdrawn the money from the bank so he could buy a car for Fraker. Then, he offered that the money was for the purpose of visiting his mother in Florida. Finally, Paz stated that he had just been paid for his work with a pest control business in Columbus, but he provided no further details as to the company‘s name or the amount of his wages. Officer Isom wrote these purported reasons in the incident‘s police report, which Paz signed, although he said he did not read the report before signing it.
{¶7} After his interaction with Paz, Officer Isom decided to seize the cash since he believed it constituted proceeds from drug trafficking. On April 7, 2011, Petitioner filed a petition for civil forfeiture under
{¶8} After the forfeiture petition was filed, the trial court set a hearing date of May 19, 2011. Paz did not respond to the petition until May 16, 2011, when he filed a motion to return the seized cash. The sole basis for the motion was that there was insufficient evidence to connect the seized cash with criminal activity. Attached to the motion was an affidavit from Paz, who now claimed that the
{¶9} Since Paz‘s motion was filed so close to the original hearing date, the trial court continued the hearing until July 18, 2011. At the hearing, in addition to the above evidence regarding Paz‘s interaction with the authorities, testimony was adduced from the following four witnesses.
{¶10} First, Layne testified regarding the circumstances of the note‘s notarization. She indicated that she had no previous relationship with Paz or Hardy and that her mother and grandson signed the note as witnesses. Further, she remembered notarizing the note on April 1, 2011 because her grandson played an April Fool‘s joke on her that day. Finally, she vouched that she would not sign a backdated document: “Well, I never looked at the calendar, so — it was — you know, it had to be [April 1, 2011] cause I usually — I won‘t backdate nothing.” July 18, 2011 Hearing Tr., p. 9.
{¶11} Second, Paz testified that the seized money represented the loan from Hardy. When questioned why the amount of cash seized was less than the
{¶12} Paz also indicated that he was planning to start the business with a partner, but that the forfeiture proceedings precluded him from further pursuing the opportunity. At first, Paz refused to identify his business partner but then relented, upon instruction by the trial court, and testified that his partner‘s name was Mike Wilson. Moreover, Paz admitted that he did not tell Officer Isom about the loan or purported business plan during the April 4, 2011 incident. He also acknowledged that he did not bring the note or loan to the attention of the police after the seizure.
{¶13} Third, Hardy testified that she had indeed provided the $5,000.00 loan to Paz so that he could start a pest control business. She said that Paz was going to start the business with Richard Holmes, his cousin, and not the Mike Wilson that Paz identified in his testimony. Hardy indicated that she did not know who Mike Wilson was.
{¶14} Hardy is the mother of two of Paz‘s children and she has physical custody of them. She is a licensed practical nurse who earned a federal adjusted
{¶15} Hardy indicated that she does not maintain a bank account. She also stated that she had a negative credit history, which included approximately $100,000.00 of debts and several collection attempts by her creditors. She had received public assistance, including food stamps and medical cards, before 2011. Meanwhile, Hardy never collected any child support payments from Paz.
{¶16} In August 2010, Hardy did attempt to obtain child support from Paz. However, Paz became angry at a meeting with the family services caseworker, which prompted Hardy to drop her case because she believed “[Paz] can make things very hard on me if he wanted to.” Id. at 68. When asked why Hardy would give a $5,000.00 loan to Paz in light of her outstanding debts, she replied: “Because I want him to help me. I mean, he was supposed to help me, you know. He was supposed to start this business, now you guys have the money, he can‘t possibly help me if he has no money to start a business now.” Id. at 75.
{¶17} Fourth, Officer Isom testified as follows regarding his decision to seize the money:
Q: The — You said the evidence that you had there at the scene that night, what — you said there was intel, as far as what you saw or
observed that night at the scene, what other evidence was there in terms of your decision-making process?
A: [Paz‘s] past history.
Q: Okay. What else?
A: Just intel that we had — that narcotics had received information on him.
Q: Did the fact that you took drugs from the car influence your decision?
A: Sure it did.
Q: Large sums of cash, is that something you‘ve seen in your experience as a Police Officer in the drug trade?
A: Yes. * * *
Q: Anything else you can think of from that night that would make you think this was drug money as opposed to some other innocent explanation?
A: Different denominations, separated in different pockets.
Q: Different denominations, do you recall what types of denominations we‘re talking about?
A: 20‘s, 50‘s, hundreds, fives, 10‘s. Id. at 93-94.
Officer Isom said that every denomination is used in drug transactions and that the trade is based on cash. On cross-examination, Officer Isom testified as follows regarding the connection between the seized money and drug trafficking:
Q: Where? Where did the drug transaction take place? When did it take place?
A: I couldn‘t tell you that, sir.
Q: Don‘t even have a clue, do you?
A: Do I have a clue? Yeah, I have a clue.
Q: I mean, can you even put that money with somebody else in a drug transaction?
A: I cannot, sir.
Q: Can you put that money with somebody else that he was going to to (sic?) buy drugs?
A: I can‘t, no. * * *
Q: Don‘t know where it came from, did you?
A: Where exactly it came from? No, sir.
Q: Did you ever even test that money to see whether there was any residue on it?
A: We don‘t do that anymore.
Q: That‘s not my question. My question is did you do it?
A: No. Id. at 102-03.
{¶18} On August 12, 2011, Petitioner moved to supplement evidence and requested a hearing. The basis for the motion was that Officer Isom, in a separate investigation, discovered that Layne had previously backdated motor vehicle titles. As a result, she pleaded no contest to a charge of violating the duties of a notary public under
{¶19} On November 15, 2011, the trial court ordered that the seized money be forfeited to Petitioner. The trial court found that Layne‘s “credibility is seriously in doubt” (Docket No. 32, p. 3) and that Paz‘s explanation for his possession of the money was “incredible” (id. at 5). It summarized Officer Isom‘s reasons for viewing the seized cash as proceeds from drug trafficking as follows:
- His knowledge that both Paz and Fraker were previously convicted of drug trafficking;
- His awareness that current police department intelligence indicated that Paz was still dealing in Marion;
- His observation of the odor of marijuana coming from the inside of [Paz‘s] vehicle;
- [Paz‘s] admission that there [were] drugs in the car;
- A drug dog‘s alerting on the vehicle;
- [Paz‘s] initial statement that he had $3,000 on him when in fact he had $4,450, separated into two pockets;
- [Paz‘s] claim that he had just taken the money out of the bank to buy a car but the deal had fallen through;
- [Paz‘s] claim that he had just gotten paid but stated that he only sometimes worked for a pest control business in Columbus and was unable to say when he was last paid, whether he was paid by cash or check, or how much he was paid;
- [Paz] changing his story to say that he had the money at home and was intending to use it to travel to Florida to see his mother.
[Officer] Isom further testified that drug traffickers deal exclusively in cash and usually in small denominations which is what was obtained from [Paz] in this case. All of this tended to indicate to the
{¶20} Paz filed this timely appeal, presenting the following assignments of error for our review.
Assignment of Error No. I
PETITIONER MARMET DRUG TASK FORCE IS NOT A PROPER PARTY PETITIONER TO A REVISED CODE CHAPTER 2981 FORFEITURE PROCEEDING.
Assignment of Error No. II
THERE WAS NO EVIDENCE THAT THE MONEY SEIZED FROM THE RESPONDENT, OSCAR PAZ WAS SUBJECT TO FORFEITURE AS THAT TERM IS DEFINED IN REVISED CODE 2981.01(11).
{¶21} Due to the nature of the assignments of error, we elect to address them out of order.
Assignment of Error No. II
{¶22} In his second assignment of error, Paz argues that Petitioner failed to present sufficient evidence to support the trial court‘s forfeiture order. We agree.
{¶23}
{¶24} Generally, forfeiture is not favored in Ohio. State v. Clark, 173 Ohio App.3d 719, 2007-Ohio-6235, ¶ 8 (3d Dist.). “Whenever possible, [forfeiture] statutes must be construed so as to avoid a forfeiture of property.” State v. Lilliock, 70 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.
{¶25} 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,
{¶26} Here, the trial court indicated that Petitioner offered ten items of evidence that supported an order of forfeiture. These items essentially established that: (1) Paz has a criminal history and is suspected of drug trafficking by the Marion police authorities; (2) Paz had a small amount of marijuana in his possession on the night of the traffic stop; (3) Paz‘s explanation for the money was unbelievable; and (4) Officer Isom testified that Paz was found with small denominations of cash in separate pockets, which is typical for drug transactions. Based on prevailing case law, we find that these items are insufficient to show by a preponderance of the evidence that the seized cash constitutes proceeds from Paz‘s alleged drug trafficking.
Evidence of Paz‘s Criminal History and Suspicion of Drug Trafficking
{¶27} It is a central tenet of our legal system that an individual‘s past conduct does not prove that the individual is currently engaged in the same type of criminal behavior. See, e.g.,
Paz‘s Possession of Marijuana During Traffic Stop
{¶28} Petitioner does not cure its reliance on Paz‘s past conduct and unsubstantiated claims about his current activities by emphasizing that Officer Isom found marijuana in Paz‘s truck during the traffic stop. Courts have
{¶29} Here, Paz was found with only two marijuana roaches and some burnt marijuana seeds. This limited amount in no way suggests that Paz was engaged in drug trafficking. Compare Dayton Police Dept. v. Thompson, 2d Dist. No. 24790, 2012-Ohio-2660, ¶ 13 (finding that person in interest was involved in drug trafficking where police discovered an amount of crack cocaine on him that
Deficiencies in Paz‘s Explanation for the Seized Cash
{¶30} Petitioner additionally focuses on the glaring deficiencies in Paz‘s explanation for his possession of the money to support the forfeiture order. Indeed, the record reflects that, at its best, Paz‘s explanation is tenuous. The trial court found his version to be unworthy of credence, and we decline to disturb this finding. See In re T.W., 3d Dist. No. 9-10-63, 2012-Ohio-2361, ¶ 20 (“The trial court serves as the trier of fact and is the primary judge of the credibility of the witnesses.“).
{¶31} But, the central inquiry here is not whether Paz has developed a credible explanation. The burden rests on Petitioner to show how the seized cash constitutes proceeds from drug trafficking and flaws in Paz‘s story do not assist in Petitioner‘s case. See, e.g., $765 in United States Currency,
The Denominations of the Seized Cash
{¶32} The trial court also based its forfeiture order partly on Officer Isom‘s purported testimony that the seized cash was in small denominations, which suggested drug trafficking. In support of this finding, Petitioner cites to State v. Owens, 9th Dist. No. 23267, 2007-Ohio-49, and State v. Balwanz, 7th Dist. No. 02-BE-37, 2004-Ohio-1534, both of which allowed forfeiture since the person in interest was found with substantial amounts of money in small denominations. But, the record reveals that Officer Isom testified to the contrary. He stated that the seized money included “different denominations” and there is no indication in his testimony that the seized cash was predominantly composed of smaller denominations. July 18, 2011 Hearing Tr., p. 93-94. In light of this testimony, Owens and Balwanz are inapposite here and the trial court‘s finding in this regard was erroneous.
{¶33} The trial court found that Paz had the seized cash separated into his two pants pockets. Under certain scenarios, the location of seized cash might support a forfeiture order. For instance, in Jones, the seized cash was found in both the defendant‘s pockets and his boots. Jones, 2009-Ohio-670, at ¶ 12. According to the investigating officer‘s testimony, this method of carrying cash is common in the drug trade. Id. Based on this and the fact that the defendant was found with a significant amount of drugs, the trial court properly found that the defendant‘s cash constituted proceeds from drug trafficking. Id. at ¶ 13.
{¶34} Here, Officer Isom did testify that the location of the seized money on Paz‘s person was consistent with drug sellers. But, there was no other evidence tying the seized money to drug trafficking. Unlike Jones, Paz only had a small amount of illegal drugs on his person. As a result, Paz‘s possession of the money here is more akin to case law that stands for the proposition that the mere possession of money is not inherently illegal. See Ali, 119 Ohio App.3d at 770 (finding that the defendant‘s possession of money and small amount of drugs was insufficient to support forfeiture). Consequently, the location of the money on Paz‘s person, standing by itself, does not support forfeiture.
{¶35} Based on the foregoing evidence, Petitioner suggests that we should follow Balwanz and find that the trial court‘s forfeiture order was appropriate. But, a review of Balwanz and the record in this matter discloses that there are significant factual differences that render Balwanz inapplicable here. There, the defendant led police on a high speed automobile chase. Balwanz at ¶ 2. During the course of the chase, he threw a plastic bag out of his automobile, which was later discovered to have 193.5 grams of cocaine in it. Further, the cocaine was individually wrapped in seven smaller baggies and testimony indicated that such packaging was consistent with drug sales. Id. at ¶¶ 4, 24-25.
{¶36} This matter presents significantly different facts. Rather than leading authorities on a car chase, Paz was compliant with Officer Isom‘s requests and even admitted to the possession of a small amount of marijuana during the traffic stop. Unlike Balwanz, Paz had two marijuana roaches and not a large plastic bag with individually wrapped cocaine. In light of these manifest dissimilarities, Petitioner‘s reliance on Balwanz is misplaced and we decline to follow it here.
Officer Isom‘s Testimony
{¶37} The most prominent flaw with the trial court‘s order and Petitioner‘s argument is the failure to account for Officer Isom‘s following testimony regarding the connection between the seized cash and drug transactions:
Q: Where? Where did the drug transaction take place? When did it take place?
A: I couldn‘t tell you that, sir.
Q: Don‘t even have a clue, do you?
A: Do I have a clue? Yeah, I have a clue.
Q: I mean, can you even put that money with somebody else in a drug transaction?
A: I cannot, sir.
Q: Can you put that money with somebody else that he was going to to buy drugs?
A: I can‘t, no. . . .
Q: Don‘t know where it came from, did you?
A: Where exactly it came from? No, sir.
Q: Did you ever even test that money to see whether there was any residue on it?
A: We don‘t do that anymore.
Q: That‘s not my question. My question is did you do it?
A: No. July 18, 2011 Hearing Tr., p. 102-03.
The foregoing testimony is effectively an admission by Petitioner that it cannot prove that the seized cash constitutes proceeds from drug trafficking. Rather than offering concrete proof to carry its burden, Petitioner relied on a “clue” as to Paz‘s purported drug activities. Id. at 102. When pressed as to the evidence behind the
{¶38} In sum, Petitioner offered evidence that Paz has a criminal history, is suspected of drug trafficking, and had a small amount of marijuana on him when the cash was seized. Further, there was no testimony to indicate that the amount of seized money was predominantly in small denominations so as to suggest drug trafficking. This paucity of evidence makes the observation that Paz had money in both of his pockets meaningless since mere possession of money is not inherently illegal.
{¶39} Consequently, Petitioner‘s evidence does not prove by a preponderance that Paz‘s money constitutes proceeds from drug trafficking. Indeed, Officer Isom‘s admission that he cannot tie the seized cash to any drug transaction fatally handicaps Petitioner‘s argument. As a result, we find that Petitioner failed to present sufficient evidence to show that the seized money was subject to forfeiture under
{¶40} Accordingly, we sustain Paz‘s second assignment of error.
Assignment of Error No. I
{¶41} In his first assignment of error, Paz essentially contends that Petitioner is not a proper party petitioner to bring this civil forfeiture action
{¶42} It is well-established that an argument that is not advanced in the trial court is waived for the purposes of appeal. See, e.g., Niskanen v. Giant Eagle, Inc., 122 Ohio St.3d 486, 2009-Ohio-3626, ¶ 34; Lillie v. Meachem, 3d Dist. No. 1-09-09, 2009-Ohio-4934, ¶ 20. In the hearing on this matter, Paz only asserted the defense that Petitioner lacked sufficient evidence to show a nexus between the seized cash and criminal activity. He never contended that Petitioner lacked the ability to bring this action. Consequently, the argument is waived. See Dayton Police Dept. v. Byrd, 189 Ohio App.3d 461, 2010-Ohio-4529, fn. 1 (2d Dist.) (allowing police department to maintain forfeiture action where neither party raised issue of police department‘s status as a proper party petitioner under forfeiture statutes); Dayton Police Dept. v. Grigsby, 2d Dist. No. 23362, 2010-Ohio-2504, fn. 2 (same).
{¶43} Although we find that the argument is waived, we note that Petitioner is indeed not a proper party petitioner under the forfeiture statutes.
A political subdivision of the state is a geographic or territorial division of the state rather than a functional division of the state. Almost invariably the statutory definitions of ‘political subdivision’ involve a geographic area of the state which has been empowered to perform certain functions of local government within such geographic area. Accordingly, a ‘political subdivision of the state’ is a geographic or territorial portion of the state to which there has been delegated certain local governmental functions to perform within such geographic area. Fair v. School Emps. Retirement Sys., 44 Ohio App.2d 115, 119 (10th Dist. 1975).
{¶44} In re Forfeiture of the Property of Louis, 187 Ohio App.3d 504, 2010-Ohio-1792 (2d Dist.) provides significant guidance here. There, the court, applying the above definition, found that “a municipal police department * * * is not itself a body corporate and politic responsible for governmental activities in a geographic area smaller than that of the state.” Id. at ¶ 27. As a result, the Dayton Police Department was not a political subdivision and consequently was not a proper party petitioner that could maintain a civil forfeiture action. Id. at ¶ 37.
{¶45} Here, Petitioner is a joint police task force between the Marion County Prosecuting Attorney, the Marion County Sheriff‘s Office, and the City of Marion Police Department. Like the Dayton Police Department, Petitioner is not responsible for the governmental activities in a limited geographical area. As such, it is not a political subdivision and it not a proper party petitioner under
{¶47} Despite the merits of Paz‘s contention on the issue of Petitioner‘s status as a proper party petitioner, it is still indisputable that Paz waived this argument by failing to assert it in the trial court.
{¶48} Accordingly, Paz‘s first assignment of error is overruled.
{¶49} Having found no error prejudicial to Paz, in the particulars assigned and argued in the first assignment of error, but having found error prejudicial to Paz, in the particulars assigned and argued in the second assignment of error, we reverse the judgment of the trial court.
Judgment Reversed
WILLAMOWSKI, J., concurs.
PRESTON, J., concurs in Judgment Only.
/jlr