STATE OF OHIO, PLAINTIFF-APPELLEE, v. TYLER J. BUSTAMANTE, DEFENDANT-APPELLANT.
CASE NO. 13-12-26, 13-13-04
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SENECA COUNTY
November 12, 2013
2013-Ohio-4975
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.
Anthony D. Hall for Appellant
Derek W. DeVine and Heather N. Jans for Appellee
{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
{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.
{4} On October 20, 2011, Bustamante was indicted by the Seneca County Grand Jury for Trafficking in Heroin in violation of
{5} On November 4, 2011, Bustamante pled not guilty to the charges against him. (Doc. 12).
{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
{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.
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
{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.
{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.
{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
{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).
(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
{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
{28} Thus police located the vial on the property where Bustamante resided, where he was able to exercise domination 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
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}
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
{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
{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.
(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
{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,
{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
{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.
{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
{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.
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