THE STATE OF OHIO, APPELLEE, v. HILL, APPELLANT.
No. 93-715
SUPREME COURT OF OHIO
August 3, 1994
70 Ohio St.3d 25 | 1994-Ohio-12
Submitted April 20, 1994
Forfeiture of property, pursuant to
APPEAL from the Court of Appeals for Lorain County, No. 92CA005332.
{¶ 1} Appellant, Frederick A. Hill, is the owner of various rental properties. One of his properties is an apartment complex located at 47 Morgan Street, Oberlin, Ohio. The complex consists of two buildings. There is a building which contains seven apartment units and a separate garage building containing an apartment where appellant resides. According to appellant, the complex is valued at approximately $110,000.
{¶ 2} Benjamin Newbauer, while a tenant at the 47 Morgan Street apartment complex, asked appellant if he could use an area in the basement of the complex, which apparently was adjacent to Newbauer‘s apartment, to grow
{¶ 3} On February 27, 1991, a police officer for the village of Grafton executed a search warrant at the 47 Morgan Street apartment complex. It appears that the search uncovered eighty-five marijuana plants. The total weight of marijuana seized was 6,172 grams. Subsequently, Newbauer pleaded guilty to trafficking in marijuana. He was placed on probation and apparently ordered to pay a mandatory fine of $2,000.
{¶ 4} Appellant also was indicted for trafficking in marijuana in violation of
{¶ 5} At trial, Newbauer was a witness for appellee, the state of Ohio. Newbauer testified that initially he intended to grow marijuana solely for his personal use. However, when more seeds germinated than anticipated, Newbauer changed his mind. Newbauer then decided to sell some of the marijuana, give a portion to friends and retain some for his personal use. The state essentially attempted to demonstrate that appellant gave Newbauer permission to grow the marijuana plants, that appellant knew the quantity of plants being grown, and that he aided and abetted Newbauer in the illegal operation.
{¶ 6} With regard to proving that appellant assisted Newbauer, the state emphasized that appellant allowed his credit card to be used to order some equipment needed to grow the marijuana. Newbauer testified that appellant actually ordered the equipment and that he (Newbauer) agreed to reimburse appellant. Newbauer also testified he owed appellant $700. The record further indicates appellant paid certain utility bills for Newbauer‘s apartment, and that a
{¶ 7} Appellant admitted that he gave Newbauer permission to grow marijuana for Newbauer‘s personal use. It is undisputed appellant knew the plants were being grown by Newbauer and that appellant had even seen the plants on various occasions. The mainstay of appellant‘s defense, however, was that he did not know Newbauer had changed his mind and intended to sell some of the marijuana or give some of it away. Further, when questioned about the use of his credit card in acquiring certain equipment, appellant maintained he owed Newbauer money for work Newbauer had performed as a handyman in the apartment complex. Newbauer testified that he had worked for appellant. Appellant admitted that he allowed Newbauer to use his credit card, but denied he (appellant) actually ordered the equipment. In addition, appellant denied that he had ever cared for the plants or had ever received watering instructions from Newbauer.
{¶ 8} The jury found appellant not guilty of trafficking in marijuana, but guilty of complicity to the offense charged in violation of
{¶ 9} On appeal, the Court of Appeals for Lorain County affirmed appellant‘s conviction and sentence. The court of appeals also affirmed the forfeiture of appellant‘s apartment complex.
{¶ 10} The cause is now before this court pursuant to the allowance of a motion for leave to appeal.
Gregory A. White, Lorain County Prosecuting Attorney, and Jonathan E. Rosenbaum, Assistant Prosecuting Attorney, for appellee.
Gold, Rotatori & Schwartz Co., L.P.A., and Niki Z. Schwartz; and Robert A. Nagy, for appellant.
DOUGLAS, J.
{¶ 11} Appellant raises various propositions of law for our determination. Appellant essentially challenges the jury‘s finding of guilt, the sentence imposed by the trial court, and the forfeiture of his apartment complex.
Finding of Guilt
{¶ 12} As a threshold matter, appellant assails his conviction of complicity to trafficking in marijuana.
{¶ 13} Appellant contends that the evidence demonstrated he was only aware that Newbauer intended to grow the marijuana for Newbauer‘s personal use. Appellant further claims he could not have known that Newbauer intended to sell the drug because of his (appellant‘s) ignorance of the drug and, based on his naivety, would not have known how many marijuana plants would be appropriate for personal use. Therefore, appellant claims there was no evidence from which a
{¶ 14} The state disagrees with appellant‘s contentions and raises the issue that appellant, as an aider and abettor, is not entitled to the personal-use defense set forth in
{¶ 15} It is obvious that appellant did not assert a “personal use” defense regarding his possible consumption of the drug. Rather, appellant attempted to demonstrate that he acquiesced in Newbauer‘s original intent allowing Newbauer to grow marijuana for Newbauer‘s personal use. The state‘s argument, if followed to its extreme, would allow a defendant who has been charged with aiding and abetting to be prosecuted for assisting a principal in an act which the principal is privileged to do. This would be comparable to allowing a defendant to be convicted for aiding and abetting without proof that a principal offense was committed. We have held that although the state need not establish the principal‘s identity, it must, at the very least, prove that a principal committed the offense. State v. Perryman (1976), 49 Ohio St.2d 14, 3 O.O.3d 8, 358 N.E.2d 1040, paragraph four of the syllabus.
{¶ 16} We believe that appellant was entitled to raise the defense provided for in
{¶ 17} In the case at bar, the jury was instructed by the trial court that in order to find appellant guilty of complicity to trafficking in marijuana, it must determine that appellant knowingly aided or abetted Newbauer in cultivating or manufacturing marijuana, or that appellant engaged in any part of the production of the drug. Further, the jury was charged that “* * * if you find that this [d]efendant had a good faith belief that Benjamin Newbauer was merely growing marijuana at 47 Morgan Street solely for Benjamin Newbauer‘s personal use, then the [s]tate has not proven the element of knowingly.”
{¶ 18} The jury, having been properly instructed on the law, returned a verdict of guilty and apparently rejected appellant‘s defense. Resolution of these issues was clearly within the province of the jury which heard all the evidence and observed the demeanor and candor of the witnesses. The court of appeals stated, and we agree, that “[t]he record in this case shows that the jury could infer from the sheer volume of marijuana and the number of plants confiscated that appellant must have known that Newbauer intended to sell the drug.” There was sufficient evidence to support the jury‘s finding of guilt and, accordingly, we are unwilling to disturb the jury‘s determination on these matters.
II
The Sentence
{¶ 19} Appellant also challenges the trial court‘s imposition of a one-year prison sentence. Appellant claims that by not pleading guilty to the offense he was punished for exercising his constitutional right to a jury trial. Appellant‘s underlying criticism is that the trial court abused its discretion in giving him a harsher sentence than that given to Newbauer.
{¶ 20} There is no question that on its face the sentence received by appellant, when compared to Newbauer‘s punishment, is disproportionate. Given
{¶ 21} In the case sub judice, the trial court followed the sentencing scheme set forth by the General Assembly and apparently elected the median imprisonment permitted for a fourth-degree felony. See
III
Forfeiture
{¶ 22} As a final matter, appellant contests the forfeiture of his apartment complex. Appellant argues that forfeiture of his entire property does not fall within the scope of
R.C. 2925.42(A)(1)(b)
{¶ 23}
“(A)(1) In accordance with division (B) of this section, a person who is convicted of or pleads guilty to a felony drug abuse offense, * * * loses any right to the possession of property and forfeits to the state any right, title, and interest he may have in that property if * * *:
“* * *
“(b) The property was used or intended to be used in any manner to commit, or to facilitate the commission of, the felony drug abuse offense or act.
“(2) All right, title, and interest of a person in property described in division (A)(1) of this section vests in the state upon the person‘s commission of the felony drug abuse offense of which he is convicted or to which he pleads guilty and that is the basis of the forfeiture * * *.” (Emphasis added.)
{¶ 24} Appellant contends that forfeiture of his entire apartment complex was beyond the intended scope of
{¶ 25} While there are similarities and obvious differences between
{¶ 26} We begin our analysis of
{¶ 27} The General Assembly, in enacting
{¶ 28} By its very terms, the statutory provision at issue incorporates a proportionality requirement. The state had the initial burden of proving by a preponderance of the evidence that the apartment complex was used to facilitate the illegal activity. Notwithstanding, appellant claims that the portion of the complex where the marijuana was actually grown was the area limited to forfeiture or, alternatively, a monetary value should have been placed on that area because it “constitutes the statutory outer limits of permissible forfeiture in this case.” Given the situation here, we disagree.
{¶ 29} The language of
B
Constitutionality of the Forfeiture
{¶ 31} Appellant also maintains that the forfeiture of his entire interest in the apartment complex violated the Excessive Fines Clauses of
{¶ 32} In Austin, the federal government, pursuant to
{¶ 33} As a threshold matter, the court determined that the Excessive Fines Clause is applicable to criminal and civil cases and, further, ascertained that its purpose is to prevent government from abusing its power to punish. Id. at 607-610, 113 S.Ct. at 2805, 125 L.Ed.2d at 497. The court, after exploring historical aspects of forfeiture and the legislative history of the federal provisions at issue, concluded
{¶ 34} In Alexander, the defendant was convicted in a federal district court of obscenity offenses and Racketeer Influenced and Corrupt Organizations Act (“RICO“) violations. In addition to imposing a six-year prison term and a $100,000 fine, the court ordered the defendant to forfeit his wholesale and retail businesses and approximately $9,000,000 acquired through racketeering activity. The court of appeals affirmed. The appellate court did not consider whether the forfeiture provision resulted in an “excessive” penalty within the meaning of the
{¶ 35} On appeal, the United States Supreme Court held, inter alia, that “[t]he in personam criminal forfeiture at issue here is clearly a form of monetary punishment no different, for
{¶ 36} The tone of the court in Austin and Alexander, and other recent cases from the United States Supreme Court,3 seems to be one of caution, encouraging fairness in the enforcement of forfeiture laws. The court, however, has given little guidance as to what factors constitute an “excessive fine” within the meaning of the
{¶ 37} Some courts have recognized certain factors that may be relevant in determining whether forfeiture is grossly disproportionate to the seriousness of the offense, thereby violating the
{¶ 38} Similarly, in United States v. Busher (C.A.9, 1987), 817 F.2d 1409, 1415, the court wrestled with the issue of forfeiture of a defendant‘s business and observed that the
“In considering the harm caused by defendant‘s conduct, it is certainly appropriate to take into account its magnitude: the dollar volume of the loss caused, whether physical harm to persons was inflicted, threatened or risked, or whether the crime has severe collateral consequences, e.g., drug addiction. * * * In
addition, the court may consider the benefit reaped by the convicted defendant. However, the forfeiture is not rendered unconstitutional because it exceeds the harm to the victims or the benefit to the defendant. After all, RICO‘s forfeiture provisions are intended to be punitive. The eighth amendment prohibits only those forfeitures that, in light of all the relevant circumstances, are grossly disproportionate to the offense committed.” (Emphasis sic.) Id. at 1415.
{¶ 39} The court in Busher also added the caveat that a court should be reluctant to order forfeiture of a defendant‘s entire interest in an enterprise where the defendant has committed minor violations. “Conversely, if illegal activity accounts for all or almost all of an enterprise‘s activity, or an interest in an enterprise was acquired entirely or almost entirely with ill-gotten funds, it would not normally violate the eighth amendment to order forfeiture of all of defendant‘s interest in that enterprise.” Id. at 1415-1416.
{¶ 40} With the foregoing discussion in mind, we hold that forfeiture of property, pursuant to
{¶ 41} In this case, the lower courts did not have the benefit of the United States Supreme Court‘s decisions in Austin and Alexander, supra, or assistance of our discussion on the issue. Hence, the lower courts did not consider whether the forfeiture of appellant‘s property, under the circumstances, was “excessive” within the contemplation of
Judgment affirmed in part, reversed in part and cause remanded.
MOYER, C.J., F.E. SWEENEY and PFEIFER, JJ., concur.
RESNICK, J., concurs separately.
A.W. SWEENEY and WRIGHT, JJ., concur in part and dissent in part.
THE STATE OF OHIO, APPELLEE, v. HILL, APPELLANT.
No. 93-715
SUPREME COURT OF OHIO
August 3, 1994
ALICE ROBIE RESNICK, J., concurring.
{¶ 42} I concur in the majority opinion, but write separately to highlight certain concerns with today‘s holding.
{¶ 43} Drug abuse and trafficking are at the root of many other crimes in this state and nation. That is the very reason that forfeiture of property used or intended to be used to facilitate illegal activity was devised and is employed. While I concur that forfeiture of property amounts to a penalty, I hope that today‘s holding will not emasculate our forfeiture statute. I am afraid that it will result in disparate and unequal treatment of persons charged with crime. Under the present system any property used or intended to be used in furtherance of criminal activity is forfeited. Under such a procedure, all persons are treated equally, all property used or intended to be used to facilitate a crime is forfeited and, lastly, everyone engaging in criminal activity is forewarned that if one acts in this illegal manner, one‘s property will be seized. Resultantly, forfeiture acts as a deterrent to certain criminal behavior. Given today‘s ruling, forfeiture will occur on a case-by-case
{¶ 44} Forfeiture of property is good policy. It deters criminal activity and it assists in paying for costs involved in law enforcement. While I reluctantly concur in today‘s majority opinion, I do hope that it does not weaken or erode a very wise and useful tool of law enforcement.
THE STATE OF OHIO, APPELLEE, v. HILL, APPELLANT.
No. 93-715
SUPREME COURT OF OHIO
August 3, 1994
A. WILLIAM SWEENEY, J., concurring in part and dissenting in part.
{¶ 45} While I agree with the law enunciated by the majority in the syllabus, I believe that the nature of the instant forfeiture was so excessive as to constitute a clear violation of
{¶ 46} The emerging trend established by the United States Supreme Court in both Alexander v. United States (1993), 509 U.S. 544, 113 S.Ct. 2766, 125 L.Ed.2d 441, and Austin v. United States (1993), 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488, is to emphasize the scrutiny that courts must employ when confronting forfeitures of property authorized by statute as punishment for certain criminal offenses.
{¶ 47} I appreciate the majority‘s desire to allow the trial court to specifically address the excessive-fine issue as an orderly disposition of this case. However, I believe that the instant forfeiture was so excessive as to constitute a clear violation of the “excessive fines” clauses of both the state and federal Constitutions. Accordingly, in the interests of judicial economy, I would reverse the forfeiture of appellant‘s apartment complex as a patent constitutional violation of the “excessive fines” clauses under the facts and circumstances of this case.
WRIGHT, J., concurs in the foregoing opinion.