[Cite as Elyria v. Mudge,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )

STATE OF OHIO/CITY OF ELYRIA C.A. Nos. 10CA009838, 10CA009839, 10CA009841, 10CA009842, Appellee 10CA009843, 10CA009844, 10CA009845, 10CA009846, v. 10CA009847

JERALD V. MUDGE DANIEL E. CSACH APPEAL FROM JUDGMENT WILLIAM A. JANOWICH ENTERED IN THE ELYRIA MUNICIPAL COURT Appellees COUNTY OF LORAIN, OHIO CASE Nos. 2009CRB01812, and 2009CRB1813, 2009CRB01815 2009CRB01816, 2009CRB01818, GAMETRONICS, INC. 2009CRB01819,2009CRB01820, 2009CRB01821, 2009CRB01822 Appellant

DECISION AND JOURNAL ENTRY

Dated: May 9, 2011

BELFANCE, Presiding Judge.

{¶1} Gametronics, Inc. (“Gametronics”) appeals from the order of the Elyria Municipal

Court denying its Request for Immediate Return of Property. We affirm.

I.

{¶2} In May 2009, Jerald Mudge, Daniel Csach, and William Janowich (the

“Defendants”) were indicted for operating a gambling house and related charges. During the

Elyria Police Department’s investigation in that case, police seized certain equipment (the

“Equipment”), primarily computers, in the Defendants’ possession. The Defendants later

pleaded no contest to disorderly conduct charges and agreed to forfeit the Equipment. 2

{¶3} In March 2010, the City of Elyria (the “City”) filed a notice that it intended to

dispose of the Equipment. Gametronics filed a request that the property be returned to it,

alleging that the Defendants never owned the Equipment and that the City had not complied with

the statutory requirements for forfeiture. In May 2010, Gametronics and the City presented

evidence regarding the ownership of the Equipment at a hearing before the trial court, which

subsequently entered an order denying Gametronics’ request. It is from that order that

Gametronics now appeals, presenting two assignments of error that we have rearranged to

facilitate our analysis.

II

ASSIGNMENT OF ERROR II

“THE TRIAL COURT[] ABUSED ITS DISCRETION IN DENYING THE ADMISSION OF APPELLANT’S EXHIBITS 1 AND 2 AFTER THE HEARING ON THE APPELANT[’S] REQUEST FOR IMMED[IA]TE RETURN OF PROPERTY WHEN BOTH EXHIB[I]TS WERE PROPERLY AUTHENTICATED IN ACCORDANCE WITH OHIO RULES OF EVIDENCE.”

{¶4} In its second assignment of error, Gametronics asserts that the trial court’s

decision excluding certain exhibits should be reversed as an abuse of discretion. We disagree.

{¶5} At the May 2010 hearing, Danielle McIsac, executive assistant to Gametronics’

president, testified that two exhibits Gametronics submitted (the “Exhibits”) were sales invoices

for computers purchased by Gametronics and shipped to the Defendants. The State argued that

the Exhibits did not demonstrate that Gametronics retained any interest in the Equipment after

the Defendants took delivery of it. The trial court determined that the Exhibits were not

authenticated and excluded them because they were photocopies on which someone other than

Ms. McIsac had made handwritten notations. Gametronics did not proffer the Exhibits.

Gametronics argues the trial court committed reversible error in excluding the Exhibits. 3

{¶6} “A party may not predicate error on the exclusion of evidence during the

examination in chief unless two conditions are met: (1) the exclusion of such evidence must

affect a substantial right of the party and (2) the substance of the excluded evidence was made

known to the court by proffer or was apparent from the context within which questions were

asked.” (Emphasis sic.) State v. Gilmore (1986),

, syllabus. See, also, Evid.R.

103.

{¶7} Gametronics has not demonstrated that the exclusion of the Exhibits affected a

substantial right as required under Gilmore. See Gilmore, 28 Ohio St.3d at syllabus. It is

apparent that the Exhibits were not in any way determinative of the trial court’s factual

determination as to whether Gametronics retained an interest in the Equipment. The trial court

agreed with the State’s contention that, notwithstanding the Exhibits, if Gametronics retained an

interest in the Equipment after it was delivered to the Defendants, there would be an agreement

demonstrating as much. Because Gametronics did not present such an agreement, the court

concluded that Gametronics had not provided sufficient evidence of its current interest in the

Equipment. The court did not base its final decision on any facts to which it appears that the

Exhibits were relevant. Because it did not affect the court’s final decision, the exclusion did not

affect Gametronics’ substantial rights as required for this Court to reverse a trial court’s

exclusion of evidence. See Gilmore, 28 Ohio St.3d at syllabus.

{¶8} Under Gilmore, a party may not predicate error on the exclusion of evidence

unless both requirements are met.

Thus, although Gametronics failed to proffer the excluded

exhibits, it is unnecessary to engage in further inquiry as to whether Gametronics satisfied

Gilmore’s second requirement. 4

{¶9} We conclude that Gametronics has failed to demonstrate that the exclusion of the

evidence affected a substantial right, and therefore overrule its second assignment of error.

ASSIGNMENT OF ERROR I

“THE TRIAL COURT’S DENIAL OF THE APPELLANT[’S] REQUEST FOR IMMED[IA]TE RETURN OF PROPERTY WAS CONTRARY TO LAW SINCE THE CITY OF ELYRIA FAILED TO COMPLY WITH THE STATUTES GOVERNING FORFEITURE CONTAINED IN OHIO REVISED CODE CHAPTER 2981.”

{¶10} In its first assignment of error, Gametronics asserts that it is entitled to return of

the Equipment because the City of Elyria did not comply with the statutory requirements for

valid forfeiture. Because Gametronics did not prove it had an ownership interest in the

Equipment, it could not mount a challenge to the forfeiture.

{¶11} For an alleged owner to challenge the forfeiture of property, it must have an

ownership interest in that property. State v. Heintz, 9th Dist. No. 02CA007997,

,

¶8. If it lacks such an interest, then it lacks standing to challenge the forfeiture. See, e.g.,

Cleveland v. Shaker Heights (1987),

; In re 1995 Mercedes C280 (2006),

,

.

{¶12} The trial court determined that Gametronics has no interest in the Equipment. We

note that Gametronics has not challenged the trial court’s determination as being against the

manifest weight of the evidence. Consequently, because it failed to demonstrate its ownership of

the property, any error in the forfeiture proceedings would not entitle Gametronics to return or

possession of the Equipment. We need not determine whether the City properly followed the

statutory requirements for forfeiture because we conclude that Gametronics lacks standing to

challenge the forfeiture. Gametronics’ first assignment of error is overruled. 5

III.

{¶13} Gametronics did not demonstrate that the exclusion of the Exhibits affected a

substantial right. Gametronics also has not demonstrated a current interest in the Equipment and

therefore lacks standing to challenge the forfeiture of the Equipment. Gametronics’ two

assignments of error are overruled.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Elyria Municipal

Court, County of Lorain, State of Ohio, 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). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

EVE V. BELFANCE FOR THE COURT

DICKINSON, J. CONCURS

CARR, J CONCURS IN JUDGMENT ONLY 6

APPEARANCES:

JEFFRY V. SERRA Attorney at Law, for Appellant.

CYNTHIA ADAMS, ELyria City Prosecutor, for Appellee.