[Cite as Cleveland v Kirby, 2025-Ohio-1663.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
CITY OF CLEVELAND, :
Plaintiff, : No. 114670 v. :
BRITTNY KIRBY, :
Defendant-Appellee. :
[Appeal by the State of Ohio] :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED RELEASED AND JOURNALIZED: May 8, 2025
Criminal Appeal from the Cleveland Municipal Court Case No. 2024-CRA-010631
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Matthew W. Moretto and Daniel T. Van, Assistant Prosecuting Attorneys, for appellant.
Cullen Sweeney, Cuyahoga County Public Defender, and Erika B. Cunliffe, Assistant Public Defender, for appellee.
EILEEN T. GALLAGHER, P.J.:
This cause came to be heard on the accelerated calendar pursuant to
App.R. 11.1 and Loc.App.R. 11.1. Appellant the State of Ohio (“State”) appeals the judgment of the Cleveland Municipal Court granting appellee Brittny Kirby’s
(“Kirby”) motion for return of property following dismissal of the case against her.
The State raises one assignment of error for our review:
The trial court abused its discretion and committed reversible error by ordering the return of property, without a hearing, in law enforcement custody which the appellant intended to use in a re-trial.
After a thorough review of the applicable law and facts, we reverse the
judgment of the trial court.
I. Factual and Procedural History
The record in this matter is sparse, but we are able to glean the
following: A complaint was filed against Kirby charging her with murder. Soon
thereafter, in open court, the State moved to dismiss the charge, which the court
granted. Kirby then orally moved for the return of property that had been seized
upon her arrest, to wit: a firearm and $9,900 in cash.
The following exchange occurred:
PROSECUTOR: Well, your Honor, although the case has been dismissed as a felony, my understanding is that it’s going to be prosecuted at the lower level so I think it’s too early to release those items, as they’re part of the case.
DEFENSE COUNSEL: We just want to make a record, your Honor.
THE COURT: Make a record that $9,900 and the gun will not be returned to Miss Kirby.
DEFENSE COUNSEL: Yes.
THE COURT: And you’re requesting to have that returned.
DEFENSE COUNSEL: Your Honor, we will delete the gun. .... COURT: The Court’s going to put, as far as the Clerk is concerned, the $9,900 need[s] to be returned. I’ll put it in my notes. You’ll get a copy of it.
...
COURT: You can get a copy of the J.E. my notes is [sic] to return the [$]9[,]900. Get a copy of it, see if that will work out.
She’s not being prosecuted yet.
You’re saying she maybe [sic].
PROSECUTOR: She will, your Honor.
And the State will object.
THE COURT: Okay.
....
THE COURT: The State’s objection is noted.
The court subsequently entered an order dismissing the charges and
noting the return of the $9,900 to Kirby. The State then filed the instant appeal.
II. Law and Analysis
In its sole assignment of error, the State argues that the court abused
its discretion by ordering the return of money to Kirby without a hearing when the
State asserted that it intended to use the money as evidence in future proceedings.
At the time Kirby moved for the return of her property, the court had
granted dismissal and there were no other charges pending against her. Accordingly, Kirby’s motion must be considered under R.C. 2981.03(A)(4). This
statute provides:
A person aggrieved by an alleged unlawful seizure of property may seek relief from the seizure by filing a motion in the appropriate court that shows the person’s interest in the property, states why the seizure was unlawful, and requests the property’s return. If the motion is filed before an indictment, information, or a complaint seeking forfeiture of the property is filed, the court shall schedule a hearing on the motion not later than twenty-one days after it is filed . . . . If the property seized is not titled or registered under law, the person shall demonstrate by a preponderance of the evidence that the seizure was unlawful and that the person is entitled to the property . . . .
The State does not dispute that Kirby’s motion fell under this statute
and argues that the court was therefore required to hold a hearing on the motion.
Kirby maintains that a hearing was, in fact, held because the trial court heard from
both sides in open court before granting the motion.
It is true that the court allowed both sides the opportunity to argue the
motion. Assuming arguendo that this limited exchange constituted a hearing under
the statute, we cannot find that Kirby met her statutory burden. Under
R.C. 2981.03(A)(4), Kirby was required to demonstrate by a preponderance of
evidence that the money was unlawfully seized and that she was entitled to the
property. Kirby presented no evidence, let alone a preponderance, to establish
either prong. Accordingly, Kirby did not demonstrate that she was entitled to the
return of the money under R.C. 2981.03(A)(4). We further determine that the money was lawfully retained by the
State. A law enforcement agency’s authority to retain property, even after dismissal
of a case, is derived from R.C. 2981.11(A)(1), which provides:
Any property that has been lost, abandoned, stolen, seized pursuant to a search warrant, or otherwise lawfully seized or forfeited and that is in the custody of a law enforcement agency shall be kept safely by the agency, pending the time it no longer is needed as evidence or for another lawful purpose, and shall be disposed of pursuant to sections 2981.12 and 2981.13 of the Revised Code.
This statute is written very broadly. “[I]f an item is potentially needed
for evidence or for some other lawful purpose, it may be held. Alternatively, if the
item is no longer needed, it may be returned or otherwise disposed.” State v. Metz,
2019-Ohio-3370, ¶ 9 (8th Dist.), citing State v. Bates, 2012-Ohio-1397, ¶ 14 (6th
Dist.).
Kirby asserts that the State did not articulate on the record what future
charges she might face, when prosecution would occur, and what connection existed
between the potential future charges and the money seized; however, she does not
cite any authority mandating that such information be presented before property
may be retained.
The State argues that “the trial court knew that the State intended to
submit this case [to] the Grand Jury for re-indictment in the Court of Common Pleas
. . . .” As noted above, the record contains only the brief statements by counsel for
the State that Kirby “will” be “prosecuted” further, that it was his understanding that
the prosecution would be “at the lower level,” and that the money seized was “part of the case.” Kirby contends that these “bare assertions” made by the prosecutor
were insufficient to justify the continued retention of the money.
In support of her argument, Kirby cites In re Seizure of Approximately
$20,000 United States Currency, 2017-Ohio-1452 (8th Dist.). In this case, the trial
court’s decision to return property to the defendant was affirmed by this court where
the State had only asserted that an investigation was ongoing and that the alleged
suspect was a person of interest, without presenting any evidence of a current
ongoing investigation.
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as Cleveland v Kirby, 2025-Ohio-1663.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
CITY OF CLEVELAND, :
Plaintiff, : No. 114670 v. :
BRITTNY KIRBY, :
Defendant-Appellee. :
[Appeal by the State of Ohio] :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED RELEASED AND JOURNALIZED: May 8, 2025
Criminal Appeal from the Cleveland Municipal Court Case No. 2024-CRA-010631
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Matthew W. Moretto and Daniel T. Van, Assistant Prosecuting Attorneys, for appellant.
Cullen Sweeney, Cuyahoga County Public Defender, and Erika B. Cunliffe, Assistant Public Defender, for appellee.
EILEEN T. GALLAGHER, P.J.:
This cause came to be heard on the accelerated calendar pursuant to
App.R. 11.1 and Loc.App.R. 11.1. Appellant the State of Ohio (“State”) appeals the judgment of the Cleveland Municipal Court granting appellee Brittny Kirby’s
(“Kirby”) motion for return of property following dismissal of the case against her.
The State raises one assignment of error for our review:
The trial court abused its discretion and committed reversible error by ordering the return of property, without a hearing, in law enforcement custody which the appellant intended to use in a re-trial.
After a thorough review of the applicable law and facts, we reverse the
judgment of the trial court.
I. Factual and Procedural History
The record in this matter is sparse, but we are able to glean the
following: A complaint was filed against Kirby charging her with murder. Soon
thereafter, in open court, the State moved to dismiss the charge, which the court
granted. Kirby then orally moved for the return of property that had been seized
upon her arrest, to wit: a firearm and $9,900 in cash.
The following exchange occurred:
PROSECUTOR: Well, your Honor, although the case has been dismissed as a felony, my understanding is that it’s going to be prosecuted at the lower level so I think it’s too early to release those items, as they’re part of the case.
DEFENSE COUNSEL: We just want to make a record, your Honor.
THE COURT: Make a record that $9,900 and the gun will not be returned to Miss Kirby.
DEFENSE COUNSEL: Yes.
THE COURT: And you’re requesting to have that returned.
DEFENSE COUNSEL: Your Honor, we will delete the gun. .... COURT: The Court’s going to put, as far as the Clerk is concerned, the $9,900 need[s] to be returned. I’ll put it in my notes. You’ll get a copy of it.
...
COURT: You can get a copy of the J.E. my notes is [sic] to return the [$]9[,]900. Get a copy of it, see if that will work out.
She’s not being prosecuted yet.
You’re saying she maybe [sic].
PROSECUTOR: She will, your Honor.
And the State will object.
THE COURT: Okay.
....
THE COURT: The State’s objection is noted.
The court subsequently entered an order dismissing the charges and
noting the return of the $9,900 to Kirby. The State then filed the instant appeal.
II. Law and Analysis
In its sole assignment of error, the State argues that the court abused
its discretion by ordering the return of money to Kirby without a hearing when the
State asserted that it intended to use the money as evidence in future proceedings.
At the time Kirby moved for the return of her property, the court had
granted dismissal and there were no other charges pending against her. Accordingly, Kirby’s motion must be considered under R.C. 2981.03(A)(4). This
statute provides:
A person aggrieved by an alleged unlawful seizure of property may seek relief from the seizure by filing a motion in the appropriate court that shows the person’s interest in the property, states why the seizure was unlawful, and requests the property’s return. If the motion is filed before an indictment, information, or a complaint seeking forfeiture of the property is filed, the court shall schedule a hearing on the motion not later than twenty-one days after it is filed . . . . If the property seized is not titled or registered under law, the person shall demonstrate by a preponderance of the evidence that the seizure was unlawful and that the person is entitled to the property . . . .
The State does not dispute that Kirby’s motion fell under this statute
and argues that the court was therefore required to hold a hearing on the motion.
Kirby maintains that a hearing was, in fact, held because the trial court heard from
both sides in open court before granting the motion.
It is true that the court allowed both sides the opportunity to argue the
motion. Assuming arguendo that this limited exchange constituted a hearing under
the statute, we cannot find that Kirby met her statutory burden. Under
R.C. 2981.03(A)(4), Kirby was required to demonstrate by a preponderance of
evidence that the money was unlawfully seized and that she was entitled to the
property. Kirby presented no evidence, let alone a preponderance, to establish
either prong. Accordingly, Kirby did not demonstrate that she was entitled to the
return of the money under R.C. 2981.03(A)(4). We further determine that the money was lawfully retained by the
State. A law enforcement agency’s authority to retain property, even after dismissal
of a case, is derived from R.C. 2981.11(A)(1), which provides:
Any property that has been lost, abandoned, stolen, seized pursuant to a search warrant, or otherwise lawfully seized or forfeited and that is in the custody of a law enforcement agency shall be kept safely by the agency, pending the time it no longer is needed as evidence or for another lawful purpose, and shall be disposed of pursuant to sections 2981.12 and 2981.13 of the Revised Code.
This statute is written very broadly. “[I]f an item is potentially needed
for evidence or for some other lawful purpose, it may be held. Alternatively, if the
item is no longer needed, it may be returned or otherwise disposed.” State v. Metz,
2019-Ohio-3370, ¶ 9 (8th Dist.), citing State v. Bates, 2012-Ohio-1397, ¶ 14 (6th
Dist.).
Kirby asserts that the State did not articulate on the record what future
charges she might face, when prosecution would occur, and what connection existed
between the potential future charges and the money seized; however, she does not
cite any authority mandating that such information be presented before property
may be retained.
The State argues that “the trial court knew that the State intended to
submit this case [to] the Grand Jury for re-indictment in the Court of Common Pleas
. . . .” As noted above, the record contains only the brief statements by counsel for
the State that Kirby “will” be “prosecuted” further, that it was his understanding that
the prosecution would be “at the lower level,” and that the money seized was “part of the case.” Kirby contends that these “bare assertions” made by the prosecutor
were insufficient to justify the continued retention of the money.
In support of her argument, Kirby cites In re Seizure of Approximately
$20,000 United States Currency, 2017-Ohio-1452 (8th Dist.). In this case, the trial
court’s decision to return property to the defendant was affirmed by this court where
the State had only asserted that an investigation was ongoing and that the alleged
suspect was a person of interest, without presenting any evidence of a current
ongoing investigation.
This case is distinguishable from the matter at hand. In Seizure of
$20,000, the money was seized from an alleged suspect during a consensual search
relating to a murder investigation. However, no charges were ever filed against the
alleged suspect. Here, a complaint had been filed against Kirby and the prosecutor
maintained that, following dismissal of the original charge, she would be prosecuted
again. Moreover, the timing involved in both cases is vastly different. In Seizure of
$20,000, the alleged suspect moved for the return of the money after no charges
had been brought for approximately seven months after the seizure of the funds; in
the instant matter, Kirby sought the return of the money mere minutes after the
State’s motion to dismiss was granted.1
The Seizure of $20,000 Court noted the difference between that case
and cases where “the record established more than a remote possibility of further
1 At oral arguments, counsel for the State acknowledged that Kirby had been
indicted for the murder on April 11, 2025. litigation in which the evidence would be needed.” Id. at ¶ 18. See State v. Rivera,
2014-Ohio-742 (6th Dist.) (“[B]ecause appellant continues to challenge the validity
of his convictions, there is a possibility that the seized property might need to be
used as evidence in a future retrial.”); Bates, 2012-Ohio-1397 (6th Dist.) (trial court
acted within its discretion in denying the defendant’s motion for return of his
property where the State had advised that the seized property was being held for
evidence related to an ongoing investigation and that assertion was “essentially
unchallenged”).
Here, Kirby was charged with murder, but the State dismissed the
charge and advised the court that it planned to pursue other charges. Kirby did not
challenge the State’s assertion, and the record does not reflect any facts or
circumstances at the time of the dismissal that would have prevented the State from
indicting Kirby for murder or other charges in the future. Thus, under R.C. 2981.11,
the State was permitted to retain the property until it was no longer needed as
evidence or for another lawful purpose.
The trial court erred in granting Kirby’s motion to return property,
and the State’s sole assignment of error is sustained.
Judgment reversed.
It is ordered that appellant recover from appellee 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
Cleveland Municipal 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.
EILEEN T. GALLAGHER, PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., and WILLIAM A. KLATT, J.,* CONCUR
(*Sitting by assignment: William A. Klatt, J., retired, of the Tenth District Court of Appeals.)