COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59202 STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : : and -vs- : : OPINION NELSON E. GUARIN : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OCTOBER 17, 1991 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 232421 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Stephanie Tubbs-Jones William A. Carlin Cuyahoga County Prosecutor Carlin & Carlin By: John F. Corrigan 29425 Chagrin Boulevard Assistant Prosecuting Attorney Pepper Pike, Ohio 44122 The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 1 - ANN McMANAMON, J.: This appeal raises novel issues concerning the disposition of monies seized in the course of an arrest and prosecution. The appellants are Nelson Guarin ("the son") who denied ownership of the cash at his trial, and Gustavo Guarin ("the father") who claimed ownership at a later hearing. Father and son present four assignments of error stemming from denial of their motion for the return of $11,900 seized from the son. They challenge the weight of the evidence, state appropriation of part of the money for the son's fine, and violations of the father's Fifth Amendment rights./1\ A review of the record compels our affirmance. Police arrested Nelson Guarin in 1989 for carrying a concealed weapon. A search of the trunk of the rented automobile he was driving disclosed $11,900 in twenty dollar bills contained in a brown paper bag, a bracelet, necklace and other personal items. During his trial the son maintained that, although the jewelry belonged to him, the cash belonged to his father. Upon conviction, the son moved for restoration of the cash, jewelry and other items. Pursuant to Civ. R. 19, the father subsequently joined in the motion, claiming ownership of the cash. The state petitioned the court for forfeiture. /1\ See Appendix for assignments of error. - 2 - At the motion/forfeiture hearing, the father testified the car his son was driving was rented by the son and used by the father for a trip to New York. He averred he drove to that city to obtain $11,900 in loans from relatives. His intent was to use part of this money to purchase a building in Cleveland for his jewelry business. He stated the cash he borrowed was in denominations of hundreds, fifties, twenties and tens, all of which he hid in a compartment in the car trunk. Upon his return to Cleveland, the father said he forgot to remove the cash from the car before he lent the auto to the son for the evening. The court granted the son's motion as it related to several items found in the car, but denied it as to the cash, necklace and bracelet. The court also overruled the father's motion, finding that he failed to prove ownership of the cash. Instead, the court held the cash and jewelry to be unclaimed property. Pursuant to R.C. 2933.41(1)(8) the court further ordered the city to retain the money and jewelry for one year. Should the owner not come forward within that time, the city was directed to use the sum for law enforcement purposes. This appeal followed. We note that the state has chosen not to appeal the denial of its forfeiture motion. Although the matter is mentioned in the state's brief, we will not address this issue pursuant to App. R. 12(A). - 3 - The first two assignments of error challenge the court's refusal to return eleven thousand nine hundred dollars to the Guarins. The appellants do not challenge the trial court's denial of their motion to return the jewelry. They posit that the evidence of the father's ownership of the money was uncontroverted. We will address these arguments jointly. The court based its disposition on R.C. 2933.41 which provides in pertinent part: "(A) (1) Any property, other than contraband that is subject to the provisions of section 2933.43...and other than property that has been lawfully seized in relation to a violation of Section 2933.32...that has been lawfully seized or forfeited...and that is in the custody of a law enforcement agency...shall be disposed of pursuant to this section. "*** "(D) Unclaimed...property...other than contraband that is subject to the provisions of Section 2933.43 ...shall be disposed of...as follows: "*** "(8) Other unclaimed property, with the approval of the court, may be used by the law enforcement agency that has possession of it....[o]r disposed of in another manner that the court considers proper in the circumstances. The only evidence proffered by the Guarins as to ownership of the money was the testimony of the father. In assessing his testimony, the trial judge stated: "THE COURT: Let me say this. I don't think it is the father's money. "I am not satisfied by a preponderance of the evidence that it is the father's money. Frankly, the reason I am not satisfied is that the father can't - 4 - describe how this money was [sic] and the prior trial testimony showed that it was all packaged in twenties. The father claims he had hundreds, fifties and/or things [sic], although it is, most of it was twenties, that is not true at all from the prior testimony. "Furthermore, it is rather improbable that somebody gets an insurance check and converts it into cash, all of which is $20 bills, an $8,000 insurance check is converted in $20 bills doesn't make sense to me." The trial judge concluded: "There are many other aspects of Mr. Guarin's testimony that I don't find credible without detailing it. "So I just don't find Mr. Guarin to be a credible witness in thinking that this $11,900 nicely packed in a brown paper bag was his that he got from New York. "So on that issue, I am not going to give the money back to Mr. Guarin." As in a forfeiture action, an action to recover personal property is a civil proceeding. Since the two actions are similar in nature, we hold that the same standard of proof applies, i.e., a preponderance of the evidence Cf. Chagrin Falls v. Loveman (1986), 34 Ohio App. 3d 212. We also are mindful that the evaluation of witness credibility lies primarily with the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230. In the present case, the father ostensibly drove to New York City to receive thirteen thousand dollars loaned to him by his daughter and son. Five thousand dollars was a purported loan from his daughter in Florida who drove to New York to deliver the cash to him personally. The other eight thousand was allegedly lent to him by his son, who converted the cash from an insurance - 5 - settlement. While in New York, the father told the court he purchased some jewelry for one thousand one hundred dollars, but got no receipt for these items. As we have noted, the father returned to Cleveland with the remaining cash secreted in the trunk of his rented car. When he arrived home he "forgot" to remove money from the trunk and lent the car to his son. We hold that the court's assessment of the father's credibility was reasonable. The court noted that the state offered evidence at the son's trial that the $11,900 was entirely in twenty dollar denominations. The father, however, told the court that the money was in denominations of hundreds, fifties, twenties and tens. Further review of the father's testimony reveals portions the court could reasonably disbelieve. The father stated he arrived in Cleveland on a Monday at 4:30 p.m. with the money in the trunk. His son left with the car that evening and never returned with it. He was arrested on Wednesday. During this thirty-six hour period, the father claims he attempted to contact his son with no success. The father also stated his portable telephone was in the car when his son took it. When asked why he simply didn't call the son he replied that since he recently bought the phone, he did not know the number. He also testified the eight thousand dollars he obtained from his son was from an insurance settlement his daughter-in-law had received. Instead of travelling with the insurance check or obtaining a bank check, the court was asked to believe the father - 6 - chose to bring the proceeds from New York to Cleveland in small denominations in a brown paper bag. Finally, the father averred that, upon leaving New York City, he hid the $11,900 in the trunk instead of in a duffel bag with his clothes because: "... if he were to get stopped or something, you know, like a hold-up that they wouldn't, they would normally just take the bags if the money was hid in the trunk." The father did admit, however, he put some of his recently purchased jewelry in the same duffel bag in which he was afraid to put the money. After reviewing the record, we find no abuse of discretion in the court's finding that the father did not establish his ownership by a preponderance of the evidence. The first and second assignments of error are overruled. In the third assignment of error, the Guarins contend the court erred in permitting five thousand dollars to be deducted from the confiscated cash to pay a fine levied against the son upon conviction. On the basis of our disposition of the first two assignments of error, we find that the Guarins have no standing to challenge the court's order. At trial the son swore that the money was not his. Moreover, the court determined at the motion/ forfeiture hearing that the father also was not the owner. - 7 - Therefore, neither have standing to challenge the state's actions. In a somewhat parallel situation, the Supreme Court in State v. Jacobs (1940), 137 Ohio St. 363 held that, although money seized by a sheriff after a raid in a gambling establishment was not subject to confiscation, fines and costs assessed against the keeper of the premises could be taken from the money seized. Id. at paragraph two of syllabus. See, also, State v. Lilliock (1982), 70 Ohio St. 2d 23, 25. The Jacobs court also held that at the termination of the proceedings the money should be returned to the person in whose possession it was found and who claimed ownership. Jacobs, supra, at paragraph two of syllabus. This latter ruling is inapplicable in the instant case since the person in whose possession the money was found, Nelson Guarin, disclaimed ownership. Accordingly, this assignment of error is overruled. In their final assignment of error, the father contends the court erred in not permitting him to exercise his Fifth Amendment rights at the forfeiture hearing. During cross-examination, the prosecutor questioned Gustavo Guarin about the gun found in the car when his son was arrested. The Guarins' lawyer objected on the basis of the Fifth Amendment. The trial court overruled this objection, finding - 8 - that the father waived the privilege by taking the stand and testifying. The trial court's determination was erroneous. A party to a civil proceeding does not waive his Fifth Amendment right against self-incrimination merely by taking the stand to testify. Shrader v. Equitable Life Assurance Society of the United States, et al. (1983), 10 Ohio App. 3d 277 at paragraph one of syllabus. We find the trial court erred in permitting the state to inquire of the father as to matters concerning the gun found in his rental car. It is unclear, however, how the father was prejudiced. It is not claimed he was subsequently charged on the basis of this evidence. Thus, any resulting error was harmless. Defendant's fourth assignment of error is overruled and the judgment of the trial court is affirmed. Judgment affirmed. - 9 - It is ordered that appellee recover of appellants 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 Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. NAHRA, PRESIDING JUDGE BLACKMON, J., CONCUR JUDGE ANN McMANAMON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and - 10 - APPENDIX Appellants' assignments of error are: I "The trial court erred to the prejudice of the appellants by ruling that eleven thousand nine hundred dollars ($11,900.00) in cash was unclaimed property when appellants' uncontroverted evidence was to the contrary." II "The trial court erred to the prejudice of the appellants by failing and refusing to return eleven thousand nine hundred dollars ($11,900.00) in cash confiscated by the Cleveland Police Department." III "The trial court erred in permitting five thousand dollars ($5,000.00) to be taken out of the eleven thousand nine hundred dollars ($11,900.00) in cash which was confiscated by the police in order to pay the fine levied upon appellant, Nelson Guarin, as punishment for his conviction of carrying a concealed weapon." IV "The trial court erred by not permitting appellant, Gustavo Guarin, to exercise his fifth amendment rights when examined with respect to matters relating strictly to credibility of the witness." witness." .