DISSENTS SAYING:

The majority has upheld an order of the Cuyahoga Falls Municipal Court directing the City of Twinsburg to destroy four firearms in the possession of the police department of that city. I respectfully dissent.

The majority properly points out that the appellant has not clearly, from the record presented to this court for review, established ownership of the firearms. On the other hand, the City of Twinsburg has failed to provide this court with either an appellate brief or argument in support of the trial court's decision. App.R. 18(C) provides that when an appellee fails to file a brief, the court may accept the appellant's statement of the facts and issues as correct and reverse the judgment if appellant's brief reasonably appears to sustain such action. Significantly, appellant states in his brief that he is the owner of these four firearms, that he requested their return, and that he was ignored until he filed a complaint in the Summit County Court of Common Pleas. Appellant further related that on the same day that the magistrate dismissed his case, the city filed a petition to destroy Appellant's property before Appellant had the opportunity to object to the magistrate's decision. The above facts are derived from the appellant's brief and are uncontroverted by the appellee.

Firearms are personal property of an especially valued sort, as referenced in the Constitution of the State of Ohio. Section 4, ArticleI, Ohio Constitution (stating in part that "[t]he people have the right to bear arms for their defense and security"). The City of Twinsburg's cavalier treatment of appellant's constitutionally protected property rights is reflected in their obtaining an ex parte order before the final judgment in the Summit County Court of Common Pleas was rendered.

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution states "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb[.]" Section 10, Article I of the Ohio Constitution contains similar language stating "[n]o person shall be twice put in jeopardy for the same offense." These prohibitions on double jeopardy guard against three distinct abuses: (1) a second prosecution for the same offense after an acquittal, (2) a second prosecution for the same offense after a conviction, and (3) multiple punishments for the same offense. State v. Gustafson (1996),76 Ohio St.3d 425, 432. In State v. Epstein (May 17, 2000), Lorain App. No. 99CA007390, unreported, at 3-4, we reviewed the circumstances upon which a forfeiture is barred by the double jeopardy cause. We held that the double jeopardy clause prohibits forfeiture "if the property could be lawfully possessed by the party in question, and therefore, the forfeiture is sought only as a penalty for the underlying criminal activities that already form the basis of the criminal conviction[.]"Id. at 4.

However inartfully the matter is presented to us, this court ought not to allow the seizure and destruction of personal property in violation of appellant's right to due process of law and right not to placed twice in jeopardy for the same offense. I would remand this case to the Cuyahoga Falls Municipal Court for further proceedings including adjudgment of due process and notice to the appellant consistent with the Ohio State Constitution and the Ninth District Court of Appeals' decisions prohibiting a defendant from being tried twice for the same offense.

This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made: On August 29, 2000, the Municipal Court of Cuyahoga Falls ordered the destruction of four firearms. Appellant, Ramon Griffin ("Griffin"), appeals this order. We affirm.

Griffin timely filed his appeal with this court.

THE TRIAL COURT ERRED IN GRANTING APPELLEE TWINSBURG'S PETITION TO DESTROY/FORFEIT APPELLANT RAMON GRIFFIN'S PERSONAL PROPERTY UNDER R.C. 2933.41 BECAUSE THE GRANTING OF THE PETITION [AFTER] CONVICTION AND SENTENCE VIOLATES MR. GRIFFIN'S RIGHT UNDER THE OHIO CONSTITUTION NOT TO BE TRIED TWICE FOR THE SAME OFFENSE (DOUBLE JEOPARDY).

Assignment of Error No. 2:

THE TRIAL COURT ERRED IN GRANTING APPELLEE TWINSBURG'S PETITION TO DESTROY/FORFEIT APPELLANT RAMON GRIFFIN'S PERSONAL PROPERTY BECAUSE THE PETITION WAS GRANTED [EX PARTE], WITH NO NOTICE TO MR. GRIFFIN OR HIS COUNSEL UNTIL AFTER THE PETITION WAS GRANTED, IN VIOLATION OF THE DUE PROCESS GUARANTEES OF THE U.S. AND OHIO CONSTITUTIONS.

In his two assignments of error, Griffin argues that appellee's action seeking destruction of his firearms after sentencing amounted to a forfeiture of his personal property in violation of the double jeopardy and due process provisions of the Ohio Constitution. We disagree.

Pursuant to App.R. 9(B), the appellant bears the burden of ensuring that the record necessary to determine the appeal is filed with the appellate court. See State v. Williams (1995), 73 Ohio St.3d 153, 160; App.R. 9(B). The record filed with this court consists of one original paper, the August 29, 2000 order and a certified copy of the docket and journal entry from the trial court. The August 29, 2000 order describes four firearms and states that the firearms shall be destroyed pursuant to R.C. 2933.41. There is no indication in the record of a relationship between the firearms and Griffin.

We find that the appellate record does not support the issues that Griffin assigns as error. Accordingly, his two assignments of error are overruled and the judgment of the trial court is affirmed.

The Court finds that there were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the County of Summit, Cuyahoga Falls Municipal Court, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E).

Costs taxed to Appellant.

Exceptions.

______________________________________ WILLIAM R. BAIRD

WHITMORE, J. CONCURS.