[Cite as State v. Fort,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 100346

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

RICHARD FORT

DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-13-572511

BEFORE: Stewart, J., Celebrezze, P.J., and E.T. Gallagher, J.

RELEASED AND JOURNALIZED: August 7, 2014 ATTORNEY FOR APPELLANT

James R. Willis Willis Blackwell & Watson 323 W. Lakeside Avenue, Suite 420 Cleveland, OH 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor

BY: Katherine Mullin Assistant County Prosecutor The Justice Center 1200 Ontario Street, 8th Floor Cleveland, OH 44113 MELODY J. STEWART, J.:

{¶1} Defendant-appellant Richard Fort was pulled over for a traffic violation

and attempted to flee from police resulting in a high-speed chase. When police

caught up with Fort, the investigating officer searched him incident to his arrest and

found drugs, drug paraphernalia, a large amount of cash, and several cell phones,

among other items. Fort was indicted on multiple counts that all included

forfeiture specifications with two counts having major drug offender specifications

attached. A jury found Fort guilty of the offenses, and the court found Fort guilty

of the major drug offender specifications.

{¶2} On appeal, Fort argues that the trial court erred by determining that the

cash and other items seized were proceeds of a criminal offense and, therefore, the

court should have granted his motion to return the items. He also argues that the

court committed reversible error when it allowed the state to comment on his

constitutional right to remain silent upon arrest, and lastly, that the court erred by

finding him to be a major drug offender. Finding no merit to Fort’s arguments, we

affirm the decision of the trial court.

{¶3} Officers Kevin Pozek and Kyle French of the Maple Heights Police

Department were involved in the arrest of Fort. Officer Pozek testified that in

March 2013, he observed a vehicle drive straight through a turn-only lane. He

activated his overhead lights and called for backup assistance. Once the vehicle stopped, Pozek turned on the personal camera attached to his uniform and

approached the vehicle. The driver, later identified as Fort, rolled down his

window slightly. Pozek testified that he immediately smelled marijuana and asked

Fort where he had stored the marijuana inside of the car. Fort stated that it was

inside his pocket and went to reach for it, but Pozek demanded that Fort keep his

hands on the steering wheel. Fort then sped away while Pozek was standing next

to the driver’s side window.

{¶4} Officer French arrived on scene, and the officers pursued Fort in their

police vehicles. Fort was eventually apprehended when he stopped his car in a

driveway. Pozek patted down Fort and searched the vehicle. Fort had a large

amount of cash on him, and inside the vehicle, police found drugs and drug-related

items. Specifically, the search yielded $9,436.73, five cell phones, a folding knife,

a marijuana cigarette, 31.4 grams of crack cocaine, 8.6 grams of raw marijuana, a

bag of coins, 137.7 grams of cocaine, a digital scale, and some electronics and

clothing items.

{¶5} Fort was charged with drug trafficking, drug possession, possession of

criminal tools, and failure to comply, with forfeiture specifications. The drugs, cash,

vehicle, and the contents of the vehicle seized by police were deemed to be

contraband or proceeds from illegal activity. Fort pleaded not guilty to the charges

and moved to have the cash, vehicle, and personal items returned to him. The state opposed the motion, and the trial court held a hearing. The court denied Fort’s

motion in part relating to the cash, vehicle, and personal items, but granted the

motion in part as it related to tools Fort needed for work as a handyman.

{¶6} During the trial after the stated rested its case, Fort moved for an

acquittal pursuant to Crim.R. 29. With regard to the forfeiture specifications,

Fort argued that the state failed to prove that any of the personal items were

connected to criminal activity. The court denied the motion in part and granted it

in part finding that the state had met its burden in demonstrating that the money, the

vehicle, and cell phones were connected to drug trafficking, but that there was

inadequate proof with respect to the clothing and other personal items. At the

conclusion of trial, Fort again moved for an acquittal relating to the forfeiture

specifications and the drug charges. The court denied the motion. The jury

found Fort guilty of the offenses with the forfeiture specifications, and the trial

court found Fort guilty of major drug offender specifications. Fort was sentenced

to 11 years in prison.

{¶7} In his first four of six assignments of error, Fort argues that the trial

court erred by denying his motion for the return of the cash and other personal

items.

{¶8} Fort first asserts that the trial court violated his due process rights when

it did not promptly conduct a hearing or rule on his motion to return the seized property. Fort argues that he had a constitutional right to an immediate

post-seizure, pretrial hearing and also that he needed the seized money to pay his

attorney fees — suggesting that the court’s taking 37 days to rule on the motion

deprived him of his constitutional right to counsel. We find, however, that the

trial court committed no violation with regard to the timeliness in which it

conducted a hearing and ruled on Fort’s motion.

{¶9} Fort was arrested on March 12, 2013. On May 14, 2013, he moved for

the immediate return of the cash, the vehicle, and the personal items taken from the

vehicle. The state opposed the motion on May 24, 2013, and the trial court

conducted a hearing on June 20, 2013. Later that day, the court denied the motion

in part and granted it in part. The court considered the motion to be a motion for

judicial release based on hardship but determined that in this case the alleged

hardship was not financial.

{¶10} R.C. 2981.03(D)(3) provides:

Except when there is probable cause that the property is contraband, * * * a court may conditionally release property subject to forfeiture to a person who demonstrates all of the following:

(a) A possessory interest in the property;

(b) Sufficient ties to the community to provide assurance that the property will be available at the time of trial; (c) That failure to conditionally release the property will cause a

substantial hardship to the claimant.

{¶11} The court properly found that any possible hardship suffered by Fort

was not the type of hardship covered under the statute. Under R.C.

2981.03(D)(4), when determining whether a substantial hardship exists, the court

must weigh the claimant’s alleged hardship from the state’s continued possession of

the property against the risk that the property will be destroyed, damaged, lost,

concealed, or transferred if returned to the claimant. Where withholding property

would prevent a legitimate business from functioning, prevent the claimant or an

innocent person from maintaining employment, or leave the claimant or an innocent

person homeless, release of the property is favored.

As shown in greater

detail when addressing Fort’s second assigned error, the court properly analyzed

Fort’s claims against the state’s interest in determining what items — namely the

cash — should be returned to Fort.

{¶12} Additionally, Fort was not prejudiced by the court’s timing in ruling

on the motion, and Fort has not demonstrated that the time it took the court to rule

was unreasonable. Furthermore, Fort was not deprived of his right to counsel.

{¶13} Fort retained counsel of his choice on April 5, 2013. On June 3,

2013, Fort was declared indigent by the court, and this same counsel was appointed

by the court to represent him. At no time was Fort denied counsel due to his inability to pay. Additionally, at all times he was represented by the same trial

counsel and cites to no authority for the proposition that ruling on his motion within

37 days is any kind of constitutional violation. Fort’s first assigned error is

without merit.

{¶14} In his second assigned error, Fort argues that the court failed to comply

with Crim.R. 12(F) by not making the proper factual findings when it denied his

motion for the return of property. We find this argument equally unpersuasive.

{¶15} Crim.R.12(F) states in pertinent part, “[w]here factual issues are

involved in determining a motion, the court shall state its essential findings on the

record.” A review of the record demonstrates that the court made the proper

findings under Crim.R.12(F) before denying Fort’s motion. The transcript from

the June 20, 2013 hearing demonstrates that the court found that the items were

lawfully seized and that the court balanced the state’s interest in preventing the

seized items from being “destroyed, damaged, lost, concealed or transferred” if

returned, with that of any alleged hardship suffered by Fort. The court rejected

Fort’s argument that without the cash he was unable to pay his attorney fees and

additionally stated, “no business will fail to operate and no loss of employment or

housing has been demonstrated.” Fort’s second assigned error is overruled.

{¶16} In his third and fourth assigned errors, Fort argues that the money,

vehicle, cell phones, electronics, knife, and scale were not shown to be proceeds of criminal activity and should not have been subject to forfeiture. He also argues

that the court’s finding that these items were proceeds was based on insufficient

evidence.

{¶17} In general, forfeiture is disfavored in Ohio. State v. Clark,

,

,

(3d Dist.). The state bears the

burden of proving by a preponderance of the evidence that property is subject to

forfeiture. See State v. Watkins, 7th Dist. Jefferson No. 07 JE 54,

. On review, an appellate court may not reverse the trial court’s

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

essential elements of the case.’” Watkins at  34, quoting C.E. Morris Co. v. Foley

Constr. Co.,

,

(1978), at syllabus.

{¶18} Under R.C. 2981.02, there are three kinds of property that may be

forfeited to the state: (1) contraband involved in an offense, (2) proceeds derived

from or acquired through the commission of an offense, or (3) an instrumentality

that is used in or intended to be used in the commission or facilitation of a felony.

“Contraband” is defined as property that is illegal for a person to acquire or possess

under a statute, ordinance, or rule, or that a trier of fact determines to be illegal to

possess by reason of the property’s involvement in an offense. R.C.

2901.01(A)(13). 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.” “Instrumentality”

refers to property that is otherwise lawful to possess but is used or intended to be

used in the commission of an offense. R.C. 2981.02(A)(3).

{¶19} Contrary to Fort’s arguments, the state demonstrated that the cash and

personal items seized were instrumentalities or proceeds of criminal activity. The

state’s evidence showed that a large amount of cash in small denominations was

found on Fort incident to his arrest. Fort offered no documented source of income

to support legal employment. In fact, Fort testified that he had not disclosed any

taxable income for several years. It goes without noting that the drugs and drug

paraphernalia found in the vehicle demonstrated criminal activity. However, Fort

testified that he had lent his car to a friend a few days prior to the arrest and was

unaware of the drug items in his vehicle and also stated that the money found on

him was won from gambling. Apparently, the jury was unconvinced.

{¶20} Although the state’s evidence was circumstantial, it demonstrated by a

preponderance of the evidence that the vehicle, knife, and scale were used to

facilitate a drug operation and that the money and other forfeited personal items

were proceeds from the illegal drug trade as opposed to being the fruits of Fort’s

labor as a handyman or of his gambling prowess. Verdicts based on circumstantial

evidence will not be disturbed based on a claim of insufficiency unless it is apparent that reasonable minds could not come to the conclusion reached by the trier of fact.

State v. Collins, 8th Dist. Cuyahoga No. 98350,

.

{¶21} In State v. Parks, 8th Dist. Cuyahoga No. 90368,

,

we sustained a forfeiture challenge based on a claim of insufficient evidence

where the defendant was convicted of drug possession but argued on appeal that the

state had not met its burden of demonstrating that the money seized was subject to

forfeiture because the jury acquitted him of drug trafficking and possession of

criminal tools, and the defendant’s girlfriend testified that the money seized was

hers.

at  25-28. In upholding the forfeiture, we reasoned that based on the

evidence presented at trial, a reasonable trier of fact could have concluded by a

preponderance of the evidence that the large amount of cash found in small

denominations inside the defendant’s pocket had been used to commit or facilitate

criminal activity.

{¶22} Similarly in State v. Brownridge, 3d Dist. Marion No. 9-09-24,

, the reviewing court overruled the defendant’s claim challenging

the sufficiency of the evidence as to whether cash seized upon arrest constituted

proceeds from criminal activity. In that case, the Third District held that the trial

court properly considered that money was derived from a criminal drug offense

where large amounts of cash appeared in small denominations. The court also found that where cash was discovered among items associated with drug trade, the

money was likely connected to criminal activity.

at  25.

{¶23} As mentioned earlier, the state pointed out that Fort’s lack of tax

filings in the previous five years suggested that he was not employed. The state

also pointed out that Fort was arrested in another case in April 2013 where he was

in possession of cocaine and $5,203. In that case, he also fled from police before

being arrested. Since these two cases happened within a short span of time, these

large sums of money in small denominations evidenced Fort’s continued

involvement in criminal activities. We overrule Fort’s third and fourth

assignments of error.

{¶24} In Fort’s fifth assignment of error, he argues that the trial court

violated his due process rights when it allowed the state to ask him questions

regarding his conversation with the police when he was arrested. He argues that

the trial court committed reversible error when the state asked a question relating to

Fort’s post-arrest conversation with police.

{¶25} On cross-examination, the prosecutor asked Fort to describe details

about the chase on the day he was arrested. Fort testified that when the police

stopped him after the chase, he threw a gun out of the window in order to avoid

having the police find it. The prosecutor then asked Fort, “[a]t any point during

your arrest did you tell police?” Fort’s attorney objected and stated that “[h]e’s not obligated to tell the police anything including his name.” The court sustained

this objection. Fort argues that despite the court’s ruling, this line of questioning

constitutes reversible error pursuant to Doyle v. Ohio,

,

,

(1976). However we find Doyle is inapplicable to this case.

{¶26} In Doyle, the United States Supreme Court held that “it would be

fundamentally unfair and a deprivation of due process to allow the arrested person’s

silence to be used to impeach an explanation subsequently offered at trial.”

. In contrast, in this case the state’s inquiry about whether Fort told the police

about the gun was not asked in order to impeach any version of events previously

offered by Fort.

{¶27} On direct examination, Fort testified that after he won money

gambling, he asked a friend to borrow a gun for protection in the event that he was

robbed. Fort stated that once he realized he was being pulled over by the police,

he panicked due to his having the gun and his prior run-ins with police. Fort

admitted to being in illegal possession of the gun and explained to the jury that his

fear of police uncovering the gun was the reason he fled. Fort was not offering

any explanation related to the violations for which he was charged and the state’s

question did not seek to disprove any prior account of the events. Doyle is

therefore not on point. Additionally, the trial court sustained the objection before

Fort had a chance to answer the question, so the jury remained unaware of whether Fort said anything to the police about the gun. We see no prejudice derived from

the question. Fort’s fifth assigned error is overruled.

{¶28} In Fort’s sixth and final assigned error, he argues that the trial court

erred when it found him to be a major drug offender. According to Fort, the trial

court’s finding violates the United States Supreme Court decision in Alleyne v.

United States,

___,

,

(2013). Fort

argues that under Alleyne, only the jury can make a determination regarding any

fact that increases his sentence. Fort is correct, however, Alleyne is inapplicable to

the facts in this case.

{¶29} In Alleyne, the jury relied on the testimony of the victim of an armed

robbery that one of the perpetrators possessed a gun. The trial court relied on the

same testimony to determine that Alleyne or his accomplice brandished a gun.

The testimony was the same, but the findings were different. The jury found that

Alleyne possessed a gun, but made no finding with regard to whether the weapon

was brandished. The court, however determined that the gun was brandished.

The Supreme Court reviewed the statutory punishment structure, which included a

mandatory minimum sentence of five years if a crime of violence was committed

while the offender carried a firearm, seven years if the firearm was brandished, and

ten years if the firearm was discharged during the crime. 18 U.S.C. 924(c)(1)(A).

The crime was otherwise punishable by a term of imprisonment not exceeding 20 years. 18 U.S.C. 1951(a). The court held that where facts were not found by a

jury that enhanced the mandatory minimum penalty for a crime, principles of the

Sixth Amendment were violated. Alleyne at paragraph one of the syllabus.

Specifically, “[b]ecause mandatory minimum sentences increase the penalty for a

crime, any fact that increases the mandatory minimum is an ‘element’ that must be

submitted to the jury.”

Indeed,

“[j]uries must find any facts that increase either the statutory maximum or minimum because the Sixth Amendment applies where a finding of fact both alters the legally prescribed range and does so in a way that aggravates the penalty.” [Alleyne at fn.1] “When a finding of fact alters the legally prescribed punishment so as to aggravate it, the fact necessarily forms a constituent part of a new offense and must be submitted to the jury.” Id. [at 2162.]

People v. Osuna,

,

(2014).

{¶30} Ohio’s major drug offender specifications designate a defendant

convicted of possessing or trafficking a certain amount of drugs a major drug

offender and require courts to impose as a mandatory sentence the maximum prison

term prescribed for the commission of the offense. For example, R.C.

2925.03(C)(4) provides in part:

(f) If the amount of the drug involved equals or exceeds

twenty-seven grams but is less than one hundred grams of cocaine and

regardless of whether the offense was committed in the vicinity of a

school or in the vicinity of a juvenile, trafficking in cocaine is a felony of the first degree, and the court shall impose as a mandatory prison

term one of the prison terms prescribed for a felony of the first degree.

(g) If the amount of the drug involved equals or exceeds one

hundred grams of cocaine and regardless of whether the offense was

committed in the vicinity of a school or in the vicinity of a juvenile,

trafficking in cocaine is a felony of the first degree, the offender is a

major drug offender, and the court shall impose as a mandatory prison

term the maximum prison term prescribed for a felony of the first

degree.

(Emphasis added.) So in order for a jury to find defendants guilty of a first-degree

felony offense of drug trafficking or drug possession dealing with cocaine, it must

find that they possessed over 27 grams of the drug. For a court to sentence

defendants as major drug offenders, the court must find that they possessed over

100 grams of cocaine. These are two different findings that rely on the same

evidence.

{¶31} In Harris v. United States,

,

,

(2002), the Supreme Court held that judicial fact-finding that increases the

mandatory minimum sentence for a crime is permissible under the Sixth

Amendment. In Alleyne, the court specifically overruled Harris and held that the

imposition of a mandatory minimum sentence above the normal minimum punishment set by statute is an increase in the punishment a defendant may receive.

Therefore, elements necessary for a court to impose such an enhancement must be

found by the trier of fact.

{¶32} The Supreme Court’s decision in Alleyne leads to the conclusion that

Ohio’s major drug offender statutes could be constitutionally infirm where a trial

court makes factual determinations, apart from those made by the jury, that are used

to enhance a defendant’s minimum sentence. But this is not the scenario we have

before us. In Fort’s case, the jury made the determination that he possessed over

100 grams of cocaine. As a result, the court did not have to make any factual

determination that enhanced the minimum penalty of an offense in contravention of

the dictates of the Supreme Court in Apprendi v. New Jersey,

,

,

(2000), and now Alleyne. The enhancing element

was found by the jury.

{¶33} While the jury was only required to find that Fort possessed more than

27 grams of cocaine in order to find him guilty of a first-degree felony, the jury

found that appellant possessed over 100 grams. The transcript provides, “[w]ith

respect to the further finding, we the jury in this case find that the [appellant] is

guilty of trafficking in drugs. We further find that the amount of the controlled

substance in Count 1, to-wit, cocaine, was an amount at least equal to or in excess

of a hundred grams.” Tr. 228. Therefore, the fact necessary for the court to find that Fort is a major drug offender and sentence him to the maximum term of

incarceration is a fact found by the jury. Therefore, Fort’s Sixth Amendment right

to a jury trial was not violated by the court’s finding. This final assigned error is

overruled.

{¶34} Judgment affirmed.

It is ordered that appellee recover of appellant its costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

Cuyahoga County Court of Common Pleas to carry this judgment into execution.

The defendant’s conviction having been affirmed, any bail pending appeal is

terminated. Case remanded to the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

MELODY J. STEWART, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and EILEEN T. GALLAGHER, J., CONCUR