[Cite as In re $449 U.S. Currency,

.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

IN RE: $449 U.S. CURRENCY; a 1965 : APPEAL NO. C-110176 FORD MUSTANG, VIN 5707T643579 TRIAL NO. M-09-1298 and 5F0703711212; and FOUR NEW : TOYO TIRES SEIZED FROM DARWIN FRIERSON. : O P I N I O N. :

:

:

:

Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: April 18, 2012

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Mark G. Waters, Assistant Prosecuting Attorney, for Appellant,

Rodney J. Harris, for Appellee.

Please note: This case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS

Per Curiam.

{¶1} This appeal arises in the context of a civil forfeiture action

instituted by the Hamilton County Prosecutor involving $449 in currency, a 1965

Ford Mustang,1 and four unattached Toyo tires that the Cincinnati police had seized

from the residence of Darwin Frierson. At the conclusion of the forfeiture hearing, a

magistrate ordered forfeiture of the property.

{¶2} Upon Frierson’s objection, the trial court rejected the magistrate’s

decision in part and ordered the state to return the Mustang and the tires to

Frierson. The state appealed. Because the record demonstrates that Frierson had

standing to challenge the forfeiture and that misconduct by the trial judge at the

objection hearing was harmless error, we affirm.

I. Background Facts

{¶3} Frierson was arrested on December 4, 2009, for drug trafficking.

The arrest occurred after the police had observed Frierson make two drug sales to an

informant for $2,800. The police recovered approximately five pounds of marijuana

from the Oldsmobile that Frierson was operating at the time of his arrest. Later that

day the police seized from Frierson’s house the property that became the subject of

these forfeiture proceedings. The police believed that these items were proceeds of

Frierson’s drug trafficking activity.

{¶4} During an interview, Frierson admitted to selling marijuana “to

make ends meet” while unemployed and informed the police that the Mustang had

been given to him. The police found no drug paraphernalia in the Mustang, nor had

they seen Frierson operate it during a few weeks of surveillance. Later, Frierson was

convicted of drug trafficking.

1 The record demonstrates that the Mustang’s identification number is 5707T643579.

2 OHIO FIRST DISTRICT COURT OF APPEALS

{¶5} Before the state filed this civil forfeiture action under R.C. 2981.05,

Sharon Dillman, the asset forfeiture unit coordinator for the Cincinnati Police

Department, had attempted to determine persons with an interest in the Mustang.

Dillman’s research showed that as of December 4, 2009, the vehicle was titled in

Dale Vollmer’s name, but that a temporary tag had been issued to Frierson.

{¶6} When Dillman contacted Frierson, he told her that Vollmer had

recently given the Mustang to Frierson’s father, Lenny, and that his father had then

given it to him. Dillman contacted Vollmer, who confirmed that he had recently

given the Mustang to Lenny, a friend and former business colleague. During the

same conversation, Dillman advised Vollmer that the Mustang remained titled in his

name.

{¶7} Although the state had identified both Frierson and Vollmer as

persons with interest in the property in the complaint for forfeiture, only Frierson

answered the forfeiture complaint and requested the return of the property.

{¶8} At the forfeiture hearing, Vollmer testified that after unsuccessfully

trying to sell the Mustang, he gifted it to Lenny in mid-November with the

understanding that Lenny wanted to give it to Frierson. Further, he stated that his

first attempt to transfer title was unsuccessful, but that he successfully transferred

the title out of his name after the property had been seized.

{¶9} Frierson and his father Lenny testified that Vollmer gave the

Mustang to Lenny, that Lenny gave it to Frierson without any consideration or

expectation of future consideration, and that Lenny eventually had the Mustang

titled directly in Frierson’s name. Neither the state nor Frierson, however, presented

documentary evidence of the Mustang’s certificate of title information after

Dillman’s initial search.

3 OHIO FIRST DISTRICT COURT OF APPEALS

{¶10} With respect to the other seized property, Frierson claimed that the

currency recovered was a part of his savings from prior employment and that he

purchased the Toyo tires that had been found in his garage “awhile ago.”

{¶11} The remainder of the testimony at the hearing focused on

Frierson’s unemployment during the several months before his arrest, after years of

employment with the same company, and Frierson’s monthly expenses and revenue

sources, including unemployment compensation and contributions from family

members, during the months of unemployment. The record contains no evidence

that Frierson, who possessed the Mustang for a short time before the seizure,

expended any money for the upkeep of the Mustang.

{¶12} The magistrate ordered all the property forfeited after finding that

Frierson’s expenses had exceeded his legitimate income. Additionally, with respect

to the Mustang, the court found that Vollman’s gift had not been completed because

the certificate of title had not been successfully transferred out of Vollman’s name

and that Frierson “was never in the chain of title for the Mustang, never gave any

consideration for it, and did not have sufficient income to afford it.” Frierson filed

objections contesting the forfeiture of the Mustang and the tires, claiming that the

state failed to prove the requisite nexus between the property and the offense.

{¶13} At a hearing on the objections, the state argued for the first time

that Frierson lacked standing to contest the forfeiture of the Mustang. The trial

judge continued the case for the stated reasons of reviewing the transcript from the

magistrate’s hearing and retrieving the current “VIN registration” for the Mustang.

{¶14} When the objections hearing resumed, the trial judge adopted the

state’s position that in Ohio ownership of a vehicle is determined by the certificate of

title, that “forfeiture pertains to title,” and that, therefore, a person outside of the

chain of title lacks standing to contest a forfeiture. Frierson argued otherwise.

4 OHIO FIRST DISTRICT COURT OF APPEALS

{¶15} The trial judge then marked as her own exhibit what she described

as the title information for the Mustang that she had received from the Hamilton

County Clerk’s Office. She also referenced a conversation that she had with a clerk’s

office employee concerning the title. The judge explained on the record that the

exhibit demonstrated that the title had been transferred from Vollmer to Frierson

after the seizure.2 Neither the state nor Freirson took exception to the trial court’s

conduct.

{¶16} After an “independent review of the evidence” presented, the trial

judge sustained Frierson’s objections, rejected the magistrate’s decision with respect

to the Mustang and tires, and ordered that the state return the Mustang and tires to

Frierson because the state failed to establish any nexus between that seized property

and Frierson’s drug trafficking. This appeal followed.

{¶17} In the first assignment of error, the state challenges the trial

court’s decision to return the Mustang and the tires to Frierson on the ground that

Frierson lacked standing to contest their forfeiture. In the second assignment of

error, the state argues that the trial judge exceeded the scope of the “independent

review” permitted under Civ.R. 53.

II. Standing

{¶18} The civil forfeiture proceedings in this case are governed by R.C.

Chapter 2981, effective July 1, 2007. See 2006 Sub.H.B. No. 241. Generally, the new

chapter unified and expanded former specific forfeiture provisions. Katz, Martin,

Lipton and Crocker, Baldwin’s Ohio Prac. Crim. L., Section 129:1 (2011). The

legislature sought “to balance punitive and remedial policies with the imperative of

limiting the state’s exercise of police power in derogation of private property rights.”

at Section 129:2. See also R.C. 2981.01(A)(1)-(4).

2 The actual exhibit is not a part of our record on appeal.

5 OHIO FIRST DISTRICT COURT OF APPEALS

{¶19} The new chapter authorizes the state to obtain a forfeiture order in

a criminal proceeding, described in R.C. 2981.04, or in a separate civil forfeiture

proceeding, described in R.C. 2981.05. To that end, R.C. 2981.05(A) allows a

prosecutor to file a civil complaint requesting the forfeiture of property that is

located within the jurisdiction of the prosecutor’s political subdivision and that is

alleged to be connected to an offense as contraband, proceeds, or an instrumentality,

as defined in R.C. 2981.02. The state or political subdivision acquires provisional

title to property subject to forfeiture upon the commission of the offense. R.C.

2981.03. This case involves property alleged to be proceeds—property “derived from

or acquired through the commission of an offense.” R.C. 2981.02(A)(2).

{¶20} In a civil forfeiture proceeding brought under R.C. 2981.05, the

prosecutor must prove by a preponderance of the evidence that the property is

subject to forfeiture because the property meets the definition of contraband,

proceeds, or an instrumentality. See R.C. 2981.05(D). The trial court “shall issue” a

civil forfeiture order if the court determines that the prosecutor has met his burden

under the statute and a finding is made, when required, that forfeiture is not

disproportionate to the severity of the offense.

{¶21} The forfeiture statutes provide procedures for “a person with an

interest in the property subject to forfeiture” to petition for release of the property at

various times during the civil forfeiture proceedings. See R.C. 2981.05(C) and R.C.

2981.03. And the prosecutor is required to attempt to identify “any person with an

interest in the property subject to forfeiture” before or upon filing the civil action and

to serve such individuals with notice of the action and the complaint. R.C.

2981.05(B). The prosecutor must also publish a notice of the action as provided by

statute. R.C. 2981.05(B).

{¶22} According to the state, Frierson lacked standing to contest the

forfeiture of the Mustang because it was titled in Vollmer’s name at the time of the

6 OHIO FIRST DISTRICT COURT OF APPEALS

seizure. Ohio’s Certificate of Motor Vehicle Title Law provides in relevant part that

“[n]o person acquiring a motor vehicle from its owner * * * shall acquire any right,

title, claim, or interest in or to the motor vehicle until there is issued to the person a

certificate of title to the motor vehicle * * *.” R.C. 4505.04(A).

{¶23} As recognized by the Ohio Supreme Court, the main goal of Ohio’s

Certificate of Motor Vehicle Title Law is to protect innocent purchasers of motor

vehicles. Saturn of Kings Automall, Inc. v. Mike Albert Leasing, Inc.,

,

(2001). See also State ex rel. City Loan & Sav. Co. v.

Taggert,

,

(1938) (discussing predecessor to

current statute that contained similar language.) To that end, a change in ownership

occurs when a certificate of title is issued in the name of the purchaser.

{¶24} “Standing” involves “[a] party’s right to make a legal claim or seek

judicial enforcement of a duty or right.” Black’s Law Dictionary 1442 (8th Ed. 2004).

The party must have “some real interest in the subject matter of the action.” State ex

rel. Dallman v. Court of Common Pleas,

,

(1973),

syllabus, cited in Wells Fargo Bank, N.A. v. Byrd,

, 2008-Ohio-

4603,

(1st Dist.).

{¶25} The state cites two federal cases applying federal forfeiture statutes

to demonstrate that Frierson’s possession of the Mustang had not provided him

standing. The courts in those cases, however, held that the claimants’ possessory

interests had confered Article III standing, but that the claimants had failed to

establish their claims as “innocent owners” due to the application of the relevant

state certificate of title laws. See United States v. One Lincoln Navigator 1998,

(8th Cir. 2003) (applying Arkansas law) and United States v. 1977 Porsche

Carrera 911,

(5th Cir. 1991) (applying Texas law).

{¶26} Ohio courts have held that Ohio’s Certificate of Motor Vehicle Title

Law has limited application beyond cases where the parties are rival claimants to

7 OHIO FIRST DISTRICT COURT OF APPEALS

title. See Saturn of Kings Automall,

,

;

Smith v. Nationwide Ins. Co.,

,

(1988).

{¶27} Specifically, the Ohio Supreme court has rejected the state’s

position that in a forfeiture action there can be no interest in a vehicle except as

evidenced by the certificate of title. State v. Shimits,

,

(1984). See also State v. Wegmiller,

,

(8th Dist. 1993) (holding that in a proceeding brought under a former forfeiture

statute, the state can demonstrate the existence of an equitable interest in a vehicle

that is then subject to forfeiture notwithstanding the Certificate of Motor Vehicle

Title Law); In re: 1990 LEXUS LUS VIN JT8UF11E7L001377 SEIZED FROM

DARRICK BOSTON, 1st Dist. No. C-990403,

,

(Mar. 31, 2000) (holding that perfection by

possession under R.C. 1309.24 was sufficient to protect pawnshop’s security interest

against RENU’s forfeiture of a vehicle, despite the language of the Certificate of

Motor Vehicle Title Law.)

{¶28} Further, forfeitures are not favored in law or equity, and the

statutory forfeiture provisions must be strictly construed against such a result. See

Dept. of Liquor Control v. Sons of Italy Lodge 0917,

,

(1992); City of Dayton Police Dept. v. Byrd,

, 2010-

Ohio-4529,

, ¶ 28 (2nd Dist.).

{¶29} This case simply involves whether Frierson’s interest in the

Mustang had been acquired by proceeds. It does not involve competing claims of title

and ownership. As soon as the state seized the Mustang as proceeds from Frierson’s

criminal behavior, the state took the position that Frierson had an interest in the

Mustang, even though the interest fell short of legal ownership of the vehicle.

{¶30} We reject the state’s position that Frierson lacked standing to

challenge the forfeiture of the Mustang because he lacked legal ownership evidenced

8 OHIO FIRST DISTRICT COURT OF APPEALS

by a certificate of title at the time of the seizure. Under these circumstances,

Frierson had standing to contest the forfeiture and to request the return of the

Mustang that he lawfully possessed at the time of the seizure and in which he had at

least an equitable interest.

{¶31} Finally, the state failed to present any argument to support its

claim that Frierson lacked standing to challenge the forfeiture of the tires, which

were not attached to any vehicle at the time of seizure. Accordingly, the first

assignment of error is meritless and we overrule it.

III. Judicial Misconduct

{¶32} In its second assignment error, the state argues that the trial judge

exceeded the bounds of the independent review of the magistrate’s decision when

she procured her own evidence and consulted an unsworn witness, whom the state

could not cross-examine. We agree.

{¶33} In this case, the matter was referred to a magistrate for a forfeiture

hearing, implicating Civ.R. 53. Frierson timely filed objections. When timely

objections to a magistrate’s decision have been filed, the trial court, in accordance

with Civ.R. 53(D)(4)(d), “shall undertake an independent review” of the matters

objected to in ruling on the objections. The independent review allows the trial court

to confirm that the magistrate has properly determined the factual issues presented

at the hearing and has applied the law correctly. Also, the trial court may “hear

additional evidence,” but “may refuse to do so unless the objecting party

demonstrates that [it] could not, with reasonable diligence, have produced that

evidence for consideration by the magistrate.”

If the court hears additional

evidence, the court may call and interrogate witnesses in an impartial manner, and

all parties are entitled to cross-examine those witnesses. See Evid.R. 614(A) and (B).

{¶34} The trial court clearly exceeded its authority under Civ.R. 53 and

the rules of evidence when it contacted the clerk of courts and secured the updated

9 OHIO FIRST DISTRICT COURT OF APPEALS

title and registration information for the Mustang. The court compounded this error

by relying on this information in determining that Frierson had standing, without

calling any witnesses into court and affording the parties the opportunity for cross-

examination. But the trial court’s error did not affect the substantial rights of the

state. See Civ.R. 61.

{¶35} Rather, as we have already held, after our de novo review of R.C.

2981.05 and Ohio’s Certificate of Motor Vehicle Title Law, Frierson’s lack of legal

ownership of the Mustang as evidenced by title at the time of the seizure did not

deprive him of standing to challenge the forfeiture. Further, the state does not

challenge the trial court’s (and the magistrate’s) finding that Frierson had not given

any consideration for the Mustang—a fact that in this case leads to the legal

conclusion that the Mustang was not subject to forfeiture as proceeds of drug

trafficking. Ultimately, there was no showing or finding that the seized Mustang had

any nexus with criminal activity. Thus, Frierson was entitled to the return of the

Mustang that he had lawfully possessed before the state seized it.

{¶36} Therefore, although the trial court’s misconduct was error, we hold

that the error was harmless, and we overrule the second assignment of error.

Accordingly, we affirm the trial court’s decision denying the state’s complaint for a

civil forfeiture order pertaining to the Mustang and the tires and ordering a release of

this property to Frierson.

{¶37} The judgment of the trial court is affirmed.

Judgment affirmed.

DINKELACKER, P.J., HENDON and CUNNINGHAM, JJ.

Please note: The court has recorded its own entry on the date of the release of this decision.

10