[Cite as State v. Brownridge,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 9-09-24

v.

CHIA BROWNRIDGE, OPINION

DEFENDANT-APPELLANT.

Appeal from Marion County Common Pleas Court Trial Court No. 08-CR-486

Judgment Affirmed

Date of Decision: January 19, 2010

APPEARANCES:

Kevin P. Collins for Appellant

Gregory A. Perry for Appellee Case No. 9-09-24

ROGERS, J.

{¶1} Defendant-Appellant, Chia Brownridge, appeals the judgment of the

Court of Common Pleas of Marion County convicting her of possession of

cocaine, possession of crack cocaine, and tampering with evidence, sentencing her

to an aggregate ten-year prison term, and ordering her to forfeit $3,821 seized

from her residence to the Marion Metropolitan Drug Task Force (hereinafter

“MARMET”). On appeal, Brownridge argues that the record contained

insufficient evidence to support the forfeiture of the cash seized from her

residence, and that the trial court abused its discretion by imposing an extreme and

unfair sentence. Based upon the following, we affirm the judgment of the trial

court.

{¶2} In November 2008, the Marion County Grand Jury indicted

Brownridge on Count One: possession of cocaine in violation of R.C.

2925.11(A),(C)(4)(d), a felony of the second degree; Count Two: possession of

crack cocaine in violation of R.C. 2925.11(A),(C)(4)(d), a felony of the second

degree; Count Three: tampering with evidence in violation of R.C. 2921.12(A)(1),

a felony of the third degree; and, Count Four: trafficking in crack cocaine in

violation of R.C. 2925.03(A)(2),(C)(4)(e), a felony of the second degree.

Additionally, Counts One, Two, and Four contained forfeiture specifications of

$3,821 in cash.

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{¶3} In December 2008, Brownridge entered a plea of not guilty to all

counts in the indictment.

{¶4} In March 2009, the case proceeded to trial at which the following

evidence was heard.

{¶5} Detective Rob Musser of the Marion Police Department, MARMET

division, testified that, on November 17, 2008, he and a team of law enforcement

officers executed a search pursuant to a warrant at 653 Bartram Avenue in the city

of Marion, county of Marion (hereinafter “the residence”); that the warrant

authorized a narcotics search, including any drugs, drug paraphernalia, drug

proceeds, or proof of drug transactions; that Brownridge lived at the residence;

that, as the team approached the residence, he observed the curtains moving as

though someone looked outside and shut the curtains again; that Detective Ryan

Ward knocked and announced that the sheriff’s office was present with a warrant,

and ordered the occupant to open the door; that, after receiving no response, he

kicked the door open and the team went into the house; that he was the first officer

through the door and observed Chimere Brownridge, Chia’s sister, standing in a

hallway just outside of a bathroom door; that he grabbed Chimere and passed her

back to the other officers; that he looked inside the bathroom and observed

Brownridge standing over top of the toilet; that he heard the sound of water

running as though the toilet had just been flushed; that the water in the toilet was

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still swirling and he observed a baggie containing a white substance that appeared

to be cocaine floating in the water; that the team proceeded to secure the residence

and found that Brownridge and Chimere were the only occupants; that, after the

residence was secured, someone removed the baggie from the toilet and placed it

on the sink; and, that he also retrieved a small piece of powder cocaine from the

floor.

{¶6} Detective Musser continued that he entered the southwest bedroom

in the residence and saw a stack of $451 sitting on a dresser; that he found several

pieces of mail addressed to Brownridge at the residence address inside a dresser

drawer in the bedroom; that he found a box of sandwich baggies on the floor of the

bedroom closet; that he went through clothing hanging in the bedroom closet, and

discovered $3,020 inside a jacket pocket; that he proceeded to search the kitchen

and discovered a digital scale inside a drawer; that he overheard Brownridge

stating that everything in the residence belonged to her, including the cocaine, and

that Chimere was just visiting and was not involved with the drugs; that the other

officers discovered a large baggie of cocaine that contained forty-four individually

wrapped crack rocks; that he did not observe any evidence of individual drug use,

such as pipes, in the residence; that drug traffickers use digital scales to weigh

their product for sale; that drug users and traffickers typically use torn corners of

sandwich baggies to package cocaine and crack cocaine; and, that the value for

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powder cocaine was $80 to $100 per gram, and the value for crack cocaine was

$100 per gram.

{¶7} On cross-examination, Detective Musser testified that he found

men’s shoes and clothing in the residence; that $451 was an odd denomination of

money; that the $3,020 pile of money was found in a man’s jacket hanging inside

the closet; and, that he could not know the source of the $451 or the $3,020 in

cash.

{¶8} Detective Dan Ice of the Marion Police Department, MARMET

division, testified that he assisted with the execution of a search warrant at the

residence; that, when he entered the residence, Brownridge was lying on the living

room floor; that, once the residence was secured and the evidence discovered, he

assisted in collecting the evidence and creating an inventory list; that nineteen total

items were seized from the residence; and, that he could not tell whether the

pictures of clothing and shoes in evidence were men’s or women’s.

{¶9} Detective Ryan Ward of the Marion County Sheriff’s Office,

MARMET division, testified that he participated in the execution of a search

warrant at the residence; that he observed movement of the blinds or curtains as

the officers approached the front door; that, upon entry, he observed Chimere

Brownridge standing by the bathroom door; that Detective Musser said that

Brownridge was in the bathroom and had flushed the toilet; that Brownridge and

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Chimere were the only people found in the household; that, in the living room, he

found a pair of pants with $350 in the pocket; that he did not know to whom the

pants belonged; that the living room also contained a digital camera, a 52”

television, and a computer; and, that, in the northeast bedroom, he located a video

game system and six pairs of brand new men’s athletic shoes.

{¶10} Detective Aaron Corwin of the Marion County Sheriff’s Office,

MARMET division, testified that he assisted in executing the search warrant at the

residence; that, as the officers approached the residence, he could hear movement

and commotion inside; that he believed this indicated the occupants had

discovered that the officers were approaching; that he searched the living room

and discovered a baggie of individually packaged cocaine in the drawer of a coffee

table; that he also discovered a credit card with Brownridge’s name on it; that he

discovered a surround sound system, an Xbox video gaming system, and six boxes

of brand new athletic shoes in one of the bedrooms or storage rooms; that he

collected these items as evidence because he believed they were possibly stolen

items that were typically traded for drugs; and, that he had no way of knowing

where the items or the individually packaged cocaine came from.

{¶11} Lieutenant B.J. Gruber of the Marion Police Department, MARMET

division, testified that one of the bedrooms contained predominately men’s

clothing, including jerseys and athletic attire, and that there were also photographs

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of men; that he was familiar with Brownridge prior to the search and was aware

that she rented the residence and that she had a brother, Ronnel Brownridge, who

was incarcerated at the time of the search; that she knew Ronnel and Brownridge

had lived together in the past; that, after the officers executed the search and

collected evidence, he used the restroom in the residence; that, after he flushed the

toilet, he realized that the toilet was clogged and suspected that they had not

retrieved all of the drugs that Brownridge flushed; that he called a plumber to

come and remove the toilet from the floor; that, with the plumber’s assistance, he

recovered a baggie of cocaine from the bottom of the toilet; and, that a portion of

the cocaine had clearly been penetrated by water and had turned into a “sludge”

(trial tr., p. 240). Detective Gruber testified on cross-examination that he did not

know if anyone else lived at the residence, and that the presence of men’s clothing

at the residence would indicate that a male either lived at the residence or stored

things there.

{¶12} Detective Christy Utley of the Marion County Sheriff’s Office,

MARMET division, testified that she assisted with execution of the search warrant

at the residence; that she overheard Brownridge stating that the money recovered

was Chimere’s money, which she had been saving for Christmas shopping, and

that the drugs recovered from the bathroom belonged to her and not Chimere; that

she later questioned Brownridge, and she stated that the drugs located in the toilet

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were hers, and that she got scared and dropped them in the toilet when the officers

came into the residence; that she claimed that the money found in the residence

was not drug money, but belonged to Chimere; that Brownridge also admitted she

had been unemployed for some time, and had previously worked at McDonalds

for $7 an hour; that she was unaware if Brownridge was receiving any type of

public assistance; and, that Brownridge tested positive for cocaine use.

{¶13} Scott Dobransky of the Bureau of Criminal Identification &

Investigation, testified that he tested the drugs seized from the residence; that the

first bag he analyzed was a larger bag that contained forty-four individual bags of

crack cocaine; that the total weight of cocaine contained within the forty-four bags

was 6.8 grams; that the second bag contained 49.3 grams of cocaine; that the third

bag he analyzed contained 60.3 grams of cocaine; and, that the fourth bag

contained 2.6 grams of cocaine.

{¶14} Detective Mark Elliot of the Marion Police Department, MARMET

division, testified that he interviewed Brownridge following her arrest. Thereafter,

the State introduced into evidence a video recording of Brownridge’s police

interview with Detective Elliot, during which she stated that she abused cocaine,

which she smoked out of a can, but that she did not sell it; that she did not use or

purchase “a lot” of cocaine; that the cocaine found did not belong to Chimere; that

the money found was Chimere’s that she earned from her job, but that Chimere

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could not provide a paycheck as evidence because she was paid in cash; that she

lived at the residence by herself; that she had the televisions for many years and

some did not even work; that the other items in the home were “hand-me-downs”

and had not been purchased with “drug money”; that she had been unemployed for

seven months, and had previously worked at McDonald’s for $7 an hour; and, that

she did not try to flush the cocaine, but accidently dropped it in the toilet because

she was scared.

{¶15} Thereafter, Detective Elliot testified that, prior to obtaining the

warrant to search the residence, he had removed items from Brownridge’s trash

including twenty-four plastic baggies with torn corners and white residue, one

baggie with suspected marijuana stems and seeds, and one baggie with a substance

that tested positive for cocaine; and, that, although Brownridge indicated that she

smoked cocaine out of a can, he did not find a can like that in the trash.

{¶16} Thereafter, the State rested. Brownridge moved for acquittal

pursuant to Crim.R. 29, which the trial court denied. Brownridge declined to

testify on her own behalf or call any witnesses.

{¶17} Subsequently, the jury returned a verdict finding Brownridge guilty

of Count One, possession of cocaine; Count Two, possession of crack cocaine;

and, Count Three, tampering with evidence. The jury found Brownridge not

guilty of Count Four, trafficking in crack cocaine.

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{¶18} In April 2009, the trial court accepted the jury’s verdict and

sentenced Brownridge to a mandatory five-year prison term on Count One; a

mandatory two-year prison term on Count Two; and, a three-year prison term on

Count Three. Additionally, Brownridge waived her right to a jury trial on the

forfeiture specification, and the trial court found by a preponderance of the

evidence that the property described in the indictment was subject to forfeiture,

and ordered Brownridge to forfeit $3,821 to MARMET.

{¶19} It is from her sentence and order of forfeiture that Brownridge

appeals, presenting the following assignments of error for our review.

Assignment of Error No. I

THE RECORD CONTAINS INSUFFICIENT EVIDENCE TO SUPPORT THE FORFEITURE OF THE CASH FOUND IN THE RESIDENCE.

Assignment of Error No. II

THE COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT AND ABUSED ITS DISCRETION BY IMPOSING AN EXTREME AND UNFAIR SENTENCE.

Assignment of Error No. I

{¶20} In her first assignment of error, Brownridge argues that the record

contains insufficient evidence to support forfeiture of the cash found in the

residence. Specifically, she argues that the State did not produce any evidence

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that she acquired the cash during the commission of an offense or within a

reasonable time afterward. We disagree.

{¶21} The State bears the burden of proof by a preponderance of the

evidence that property is subject to forfeiture under R.C. 2981.02. State v.

Watkins, 7th Dist. No. 07 JE 54,

. On review, an appellate

court may not reverse the trial court’s decision on preponderance of the evidence

where there is “‘some competent, credible evidence going to all the essential

elements of the case.’” Watkins,

, quoting C.E. Morris Co.

v. Foley Constr. Co. (1978),

, at syllabus.

{¶22} Generally, forfeiture is not favored in Ohio. State v. Clark,

,

. “‘Whenever possible, such statutes must

be construed as to avoid a forfeiture of property.’”

quoting State v.

Lilliock (1982),

. Additionally, the Supreme Court of Ohio

has held that forfeiture may not be ordered “‘unless the expression of the law is

clear and the intent of the legislature manifest.’”

quoting Lilliock,

; see, also, Dayton v. Boddie (1984),

.

{¶23} R.C. 2981 governs forfeiture of a criminal defendant’s property and

provides, in part:

(A) The following property is subject to forfeiture to the state or a political subdivision under either the criminal or delinquency process in section 2981.04 of the Revised Code or the civil process in section 2981.05 of the Revised Code:

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*** (2) Proceeds derived from or acquired through the commission of an offense[.]

R.C. 2981.02. For cases involving unlawful goods and activities, R.C.

2981.01(A)(11)(a) defines the term “proceeds” as “any property derived directly

or indirectly from an offense. ‘Proceeds’ may include, but is not limited to,

money or any other means of exchange. ‘Proceeds’ is not limited to the net gain

or profit realized from the offense.”

{¶24} Additionally, R.C. 2981.03 provides, in pertinent part:

(A)(1) The state or political subdivision acquires provisional title to property subject to forfeiture under this chapter upon a person's commission of an offense giving rise to forfeiture, subject to third party claims and a final adjudication under section 2981.04 or 2981.05 of the Revised Code. * * * *** (5)(a) In any action under section 2981.04 or 2981.05 of the Revised Code, if a property owner or third party claims lawful interest in the subject property alleged to be proceeds, the state or political subdivision has provisional title and a right to hold property if it proves both of the following by a preponderance of the evidence:

(i) The interest in the property was acquired by the alleged offender * * * during the commission of the offense or within a reasonable time after that period.

(ii) There is no likely source for the interest in the property other than as proceeds derived from or acquired through the commission of the offense.

See, also, Watkins,

(finding that, where the State

demonstrates by a preponderance that both R.C. 2981.03(A)(5)(a)(i) and

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2981.03(A)(5)(a)(ii) are present, a rebuttable presumption arises that the property

is subject to forfeiture).

{¶25} Further, trial courts are not limited to considering only the

underlying criminal offense when deciding a forfeiture action, and may pursue

property derived from any act that would constitute a felony drug offense,

regardless of a defendant’s conviction or acquittal on such an offense. Watkins,

, citing State v. Parks, 8th Dist. No. 90368, 2008-Ohio-

4245, ¶26; In re Seizure of 1998 Dodge Durango, 6th Dist. No. L-04-1295, 2005-

Ohio-6004, ¶12.

{¶26} Courts have considered the following situations to be indicative that

money was derived from a criminal drug offense: 1) where large amounts of

currency appear in small denominations, State v. Owens, 9th Dist. No. 23267,

; State v. Balwanz, 7th Dist. No. 02-BE-37,

; and, 2) where currency is discovered among items associated with drug trade,

such as scales, or drugs themselves. State v. Harris, 12th Dist. No. CA2007-04-

089,

.

{¶27} Here, law enforcement officers discovered in the residence $3,821 in

cash in small denominations, a scale, and one hundred nineteen grams of cocaine

worth approximately $9,000 to $11,000, some of which was individually wrapped

in forty-four small plastic baggies. Additionally, the officers discovered plastic

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baggies with torn corners and a plastic baggie with cocaine residue in the

residence trash. Further, the officers discovered a digital camera, multiple pairs of

brand new athletic shoes in the boxes, a video gaming system, multiple

televisions, a computer, and a surround-sound system in the residence. Finally,

during their interrogation of Brownridge, the officers elicited statements from her

that she had been unemployed for seven months, and had previously earned only

$7 per hour at McDonald’s. Additionally, although Brownridge apparently told

the officers that the money belonged to her sister Chimere, her credibility is

weakened by the fact that she did not delineate how much of the money belonged

to Chimere, explain why the cash was found in three separate areas of the

residence, including on the dresser in Brownridge’s bedroom and in a man’s

jacket pocket in Brownridge’s bedroom closet, or offer any witnesses, including

Chimere, to prove that the money did, in fact, belong to Chimere.

{¶28} In light of the preceding, we conclude that the trial court possessed

some competent, credible evidence that the $3,821 was subject to forfeiture

because Brownridge acquired the cash during the commission of a drug trafficking

offense, and there was no other likely source of the cash. See Watkins, 2008-

Ohio-6634, at ¶33; R.C. 2981.02(A)(2) and 2981.03(A)(5)(a).

{¶29} Accordingly, we overrule Brownridge’s first assignment of error.

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Assignment of Error No. II

{¶30} In her second assignment of error, Brownridge argues that the trial

court erred and abused its discretion by imposing an extreme and unfair sentence.

Specifically, she claims that, given her background and that she never denied that

she possessed and used cocaine, and that lesser sentences had been imposed upon

similar offenders for similar offenses, the sentence the trial court imposed on her

was extremely harsh. We disagree.

{¶31} When an appellate court reviews the sentencing decision of a trial

court, it must conduct a meaningful review of the sentencing decision.1 State v.

Daughenbaugh, 3d Dist. No. 16-07-07,

, citing State v. Carter,

11th Dist. No. 2003-P-0007,

. A meaningful review means “that

an appellate court hearing an appeal of a felony sentence may modify or vacate the

sentence and remand the matter to the trial court for re-sentencing if the court

clearly and convincingly finds that the record does not support the sentence or that

the sentence is otherwise contrary to law.” Daughenbaugh,

, citing Carter,

; R.C. 2953.08(G).

{¶32} In State v. Foster,

,

, the Supreme

1 We note that the Supreme Court of Ohio's plurality opinion in State v. Kalish,

, 2008- Ohio-4912, established a two-part test utilizing an abuse of discretion standard for appellate review of felony sentencing decisions under R.C. 2953.08(G). While we cite to this Court's precedential clear and convincing review standard adopted by three dissenting Justices in Kalish, we note that our decision in this case would be identical under the Kalish plurality's two-part test.

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Court of Ohio severed portions of Ohio's felony sentencing law after finding them

unconstitutional. The Court held that “[t]rial courts have full discretion to impose

a prison sentence within the statutory range and are no longer required to make

findings or give their reasons for imposing maximum, consecutive, or more than

the minimum sentences.” Foster,

, at paragraph seven of the

syllabus. Further, the Court stated that “[o]ur remedy does not rewrite the statute,

but leaves courts with full discretion to impose a prison term within the basic

ranges of R.C. 2929.14(A) based upon a jury verdict or admission of the defendant

without the mandated judicial findings [of fact] that Blakely prohibits.” Foster,

. Additionally, the Court held that “[c]ourts shall

consider those portions of the sentencing code that are unaffected by today’s

decision and impose any sentence within the appropriate felony range.” Foster,

.

{¶33} Trial courts are still required to comply with R.C. 2929.11, 2929.12,

2929.13, and the unsevered portions of R.C. 2929.14. Foster,

. Additionally, R.C. 2929.11 and 2929.12 do not mandate judicial fact-finding;

rather, in exercising its discretion, a trial court is merely required to “consider” the

purposes of sentencing in R.C. 2929.11 and the statutory guidelines and factors set

forth in R.C. 2929.12. Foster,

. See, also, State v.

Mathis,

,

, ¶38; State v. Roehl, 3d Dist. No. 4-07-

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10,

; State v. Estep, 3d Dist. No. 9-07-16,

.

{¶34} Here, the trial court specifically provided in its judgment entry of

sentencing that it had considered the record, the oral statements, the pre-sentence

investigation report, the principles and purposes of sentencing under R.C. 2929.11,

and appropriate factors of seriousness and recidivism under R.C. 2929.12.

Therefore, although the trial court was not required to state that it had considered

each section of the sentencing statute pursuant to Foster and Mathis, the record

reflects that it properly considered the statutory sentencing factors. Additionally,

the prison sentences imposed by the trial court were within the statutory range for

the offenses. See R.C. 2929.14(A).

{¶35} Accordingly, we overrule Brownridge’s second assignment of error.

{¶36} Having found no error prejudicial to the appellant herein, in the

particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

SHAW, J., concurs.

/jlr

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WILLAMOWSKI, J., Concurring Separately.

{¶37} I concur fully with the majority opinion, however write separately to

emphasize that the appropriate standard of review was applied. In her second

assignment of error, Brownridge alleges that the trial court abused its discretion by

imposing an extreme and unfair sentence. Brownridge’s appeal of her felony

sentence was not pursuant to R.C. 2929,12, which, in my opinion would require an

abuse of discretion standard. Thus, the standard used to review this case, as set

forth in R.C. 2953.08(G) is the proper standard of review herein.

/jlr

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