COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60501 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : ALBERT BROWN : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: JULY 30, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-253771. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: John B. Gibbons, Esq. 2000 Standard Building Cleveland, OH 44113 -2- DAVID T. MATIA, C.J.: Defendant-appellant appeals the verdict of the Cuyahoga County Court of Common Pleas which found him guilty on two counts of violating drug laws, R.C. 2925.03 (trafficking in drugs) and R.C. 2923.04 (possession of criminal tools). As a result of the conviction, appellant forfeited a 1986 automobile to the State of Ohio. Appellant assigns for review, the forfeiture and the state's alleged prejudicial closing statement. Based on the reasons adduced below, we find no error and affirm the trial court. STATEMENT OF THE FACTS In May and June of 1990, detectives from the Cleveland Police Department, Second District Vice Unit, conducted surveillance of drug activity in and around the Valley View housing projects and a nearby home at 710 University Court. During this time, defendant-appellant Albert Brown had been observed making numerous trips from 710 University Court to the projects. Once appellant arrived at the projects, numerous people were observed to gather around him and make hand-to-hand exchanges. According to Vice Detective Douglas Dvorak, involved in the investigation, this conduct was consistent with drug activity. Detective Dvorak testified that on May 16, 1990 and on May 25, 1990, appellant Brown was on the periphery of two drug related arrests in this area. On May 16, 1990, appellant's younger brother was arrested for possessing crack-cocaine shortly after he left appellant Brown sitting in his 1986 Cadillac. At this -3- time, Detective Dvorak warned appellant that he would lose his car if he persisted in such activity. On May 25, 1990, another juvenile left 710 University Court and was arrested for possession of crack cocaine. Dvorak testified that after the arrest, appellant Brown asked others in the vicinity whether "they" (the police) had gotten the "rocks." "Rocks" is a part of the drug nomenclature used to describe crack cocaine. On June 1, 1990, after receiving a search warrant, the Vice Unit decided to search the University Court address. Vice Detective Bernard Norman positioned himself at the rear of the house. From this point, Norman observed a pattern of drug trafficking. On three separate occasions, a person arrived at and entered a side door at 710 University Court. With each person's arrival, appellant Brown came out the side door, walked to the rear corner of the house, stooped down, and returned through the side door. The newly arrived person would then leave. Norman radioed to his partners that he believed the cocaine was being kept outside at the rear of the house. Subsequently, Detective Dvorak retrieved a bag containing 105 rocks of cocaine from behind a loose piece of siding at the rear of the house. During the search of the house, $720.00 was recovered from appellant's pockets and $3,915.00 was found inside appellant's bedroom dresser drawer. In addition to a stereo system, VCR and television, the police investigation disclosed that appellant had -4- purchased his 1986 Cadillac for $8,000.00 in cash just three months earlier. STATEMENT OF THE CASE On June 26, 1990 the Grand Jury for Cuyahoga County returned a two count indictment in CR-253771 against appellant Albert Brown. Count one was for drug trafficking, in violation of R.C. 2925.03(A)(6). Count one also contained a prior drug trafficking specification. Count two was for possession of criminal tools, in violation of R.C. 2923.24, to-wit: money. Along with the indictment, the State of Ohio filed a petition for forfeiture of seized contraband, to-wit: a 1986 Cadillac, $3,915.00 in money, a remote control stereo system, and an automobile alarm system. Appellant entered pleas of not guilty to the indictment. On August 23, 1990, a jury trial commenced. On August 24, 1990, the jury returned a guilty verdict as to both counts of the indictment. On September 11, 1990 appellant was sentenced to a term of five to twenty-five years under count one and a consecutive one and one-half year term on count two. Both counts were ordered to run consecutive to a probation violation in an earlier trafficking case. After sentencing, appellant requested the court to rule immediately on the forfeiture of the Cadillac. On September 25, 1990, the trial court entered an order of forfeiture. It is from this judgment, conviction and forfeiture, appellant now timely appeals to our court. ASSIGNMENT OF ERROR I -5- THE TRIAL COURT ERRED IN ORDERING THE FORFEITURE OF THE 1986 AUTOMOBILE BECAUSE THERE WAS NO EVIDENCE PRESENTED BY THE STATE, SHOWING THAT THE VEHICLE WAS USED IN ANY NARCOTIC TRANSACTION. Appellant argues in his first assignment of error that the trial court erred by ordering the forfeiture of the 1986 Cadillac. Specifically, appellant argues that the state did not show that the automobile was linked to illegal drug trafficking. This assignment of error is not well taken. ISSUE: WHETHER THE STATE SHOWED BY A PREPONDERANCE OF THE EVIDENCE THAT THE AUTOMOBILE FORFEITURE WAS SUFFICIENTLY LINKED TO ILLEGAL DRUG ACTIVITY The trial court ordered forfeiture of the 1986 Cadillac holding that "*** this property was acquired through the sale or other transfer of drugs or through the proceeds of defendant's drug activity." The trial court, therefore, found that the state demonstrated by a preponderance of the evidence that the automobile was indeed contraband. On review of the record, we find that the trial court ruled properly. The state's forfeiture complaint was based on R.C. 2933.41, which allows a government unit, which is in possession of seized property, to bring an action to determine the rights of other persons in such property. R.C. 2933.41 states in relevant part: (A) Property that has been lost, abandoned, stolen, seized pursuant to a search warrant, or lawfully seized or otherwise forfeited, and that is in the custody of a law enforcement agency, shall be -6- safely kept pending the time it is no longer needed as evidence, and shall be disposed of pursuant to this section. * * * (C) A person loses any right he may have to possession of property if either of the following apply: (1) The property was the subject, or was used in a conspiracy or attempt to commit, or in the commission, of an offense other than a traffic offense, and such person is a conspirator, accomplice, or offender with respect to the offense; (2) When a court determines that the property should be forfeited because, in light of the nature of the property or the circumstances of such person, it is unlawful for him to acquire or possess the property. (Emphasis in original.) R.C. 2933.41 is a forfeiture statute and as such must be construed against the state. State v. Lilliock (1982), 70 Ohio St. 2d 23, 24 O.O.3d 64, 434 N.E.2d 723. Further, the proceedings under a property disposition are criminal in nature but civil in form. Lilliock, supra. The State of Ohio therefore had to prove its case by a preponderance of the evidence. Chagrin Falls v. Loveman (1986), 34 Ohio App.3d 212, 517 N.E.2d 1005. The issue before this court is whether the state proved by a preponderance of the evidence that the automobile was contraband resulting from appellant Brown's illegal drug activity. The evidence adduced within showed that appellant was not lawfully employed. Detective Brian Heffernan testified that he -7- overheard appellant Brown state to Mayor White "that he was no longer employed, that he used to work at McDonald's ***." The record indicates that the 1986 Cadillac was an expensive car, and that on March 5, 1990, appellant purchased the automobile for $8,000.00 in cash. The court's docket evidenced the fact that appellant had previously been convicted of drug trafficking on two separate dates and that the automobile purchase occurred between convictions. Further evidence adduced that Detective Dvorak had observed appellant's brother leave the automobile and offer drugs for sale on the street. Detective Dvorak testified that in connection with that observation, he told appellant that if he continued such conduct, he was going to lose the car. Appellant Brown was convicted of trafficking drugs arising out of the June 1, 1990 arrest. During the search, which resulted in the arrest, police found money on the appellant and $3,915.00, mostly in twenty dollar bills, thrown into appellant's bedroom 1 drawer. Thus, reviewing the record and evidence on the whole record, we find that the state showed by a preponderance of the evidence that the 1986 Cadillac was a product of appellant's unlawful drug activity. Hence, the trial court properly determined that the automobile should be forfeited because, "in light of the nature of the property," and appellant's inability to offer evidence as 1 A street unit of crack cocaine is customarily sold for $20.00. -8- to how the automobile was lawfully acquired, "it is unlawful for him to acquire or possess the property." (R.C. 2933.41.) Accordingly, appellant's Assignment of Error I is not well taken. ASSIGNMENT OF ERROR II THE DEFENDANT-APPELLANT WAS DENIED HIS RIGHT TO DUE PROCESS OF LAW BY THE IMPROPER, INFLAMMATORY AND PREJUDICIAL COMMENTS OF THE PROSECUTING ATTORNEY IN CLOSING ARGUMENT. Appellant argues in his second assignment of error that the trial court denied him due process of law. Specifically, appellant argues that the prosecutor's closing argument was prejudicial. Appellant's Assignment of Error II is without merit. ISSUE: WHETHER PROSECUTOR'S COMMENTS WERE SO PREJUDICIAL AS TO BE CONSIDERED PLAIN ERROR Appellant contends that comments made by the prosecuting attorney during closing argument were prejudicial and therefore reversible error. We are not persuaded. In closing, the attorney commented as follows: Ladies & gentlemen, as I said at the beginning, we have a drug problem in the City of Cleveland and in Cuyahoga County, and this drug problem is killing us. It is killing our friends, our neighbors, sons, daughters, grandchildren. It is a big problem, and part of that problem is sitting at the Trial table over there, Albert Brown, and you can take the first step to correct this problem by finding this distributor guilty of both charges. (Tr. 313.) -9- First, we note that appellant made no objection to the alleged prejudicial comments. In the absence of objection, we may consider only whether the comment was plain error. State v. Cooey (1989), 46 Ohio St. 3d 20, 31; State v. Lawrence (1989), 44 Ohio St. 3d 24, 27; State v. Broom (1988), 40 Ohio St. 3d 277, 288-289. An error "does not constitute a plain error or defect under Crim. R. 52(B) unless, but for the error, the outcome of the trial clearly would have been otherwise. Notice of plain error under Crim. R. 52(B) is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice ***." State v. Long (1978), 53 Ohio St. 2d 91, 97. Applying this standard to the within alleged error, we do not find plain error. Appellant's argument that he was charged with possession of cocaine, not trafficking in cocaine, is without merit. Appellant was charged with possession of crack cocaine in excess of three times the bulk amount under R.C. 2925.03(A)(6). The charge of possession of drugs in excess of the bulk amount is "aimed at sellers and peddlers." State v. Goodnight (1977), 52 Ohio App.2d 333, 336. The evidence adduced at trial overwhelmingly supported appellant's conviction as charged. Hence, notwithstanding the prosecutor's comments, we cannot see that the outcome of appellant's trial would have been otherwise. Accordingly, appellant's second assignment of error is without merit. Accordingly the trial court's judgment is affirmed. -10- 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 Common Pleas Court 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. DYKE, J. and KRUPANSKY, J., CONCUR. DAVID T. MATIA CHIEF JUSTICE 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 order of the court and time period for review will begin to run. .