State v. Friend

2019 Ohio 343

• Court: Ohio Court of Appeals
• Decided: February 1, 2019
• Docket: 18-CA-41
• Status: Published

Opinion

[Cite as State v. Friend, 2019-Ohio-343.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P.J Plaintiff – Appellee Hon. William B. Hoffman, J. Hon. John W. Wise, J. -vs- Case No. 18-CA-41 KIMBERLY FRIEND

Defendant – Appellant O P I N IO N

CHARACTER OF PROCEEDINGS: Appeal from the Licking County Court of Common Pleas, Case No. 2017-CR- 00881

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: February 1, 2019

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

WILLIAM C. HAYES JAMES A. ANZELMO LICKING COUNTY PROSECUTOR 446 Howland Drive Gahanna, Ohio 43230 BY: DANIEL J. BENOIT Assistant Prosecuting Attorney 20 S. Second Street, Fourth Floor Newark, Ohio 43055 Licking County, Case No. 18-CA-41 2

Hoffman, J. {¶1} Appellant Kimberly Friend appeals the judgment entered by the Licking

County Common Pleas Court convicting her of possession of drugs (R.C.

2925.11(A)(C)(6)(e)), trafficking in drugs (R.C. 2925.03(A)(2)(C)(6)(f)), three counts of

aggravated possession of drugs (R.C. 2925.11(A)(C)(1)(c)),two counts of having

weapons under disability (R.C. 2923.13(A)(3)), and aggravated possession of drugs (R.C.

2925.11(A)(C)(1)(a)), with two forfeiture specifications of U.S. currency (R.C.

2941.1417(A), R.C. 2981.02(A)(2)), and two forfeiture specifications of firearms (R.C.

2941.1417(A), R.C. 2981.02(A)(3)), and sentencing her to an aggregate term of

incarceration of seventeen years. Appellee is the state of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On January 12, 2017, police executed a search warrant at Appellant’s

residence on West Church Street in Newark, Ohio. During the search police found 39.36

grams of an off-white, crystalline substance later determined to be methamphetamine,

.37 grams of a clear peach liquid found to contain methamphetamine, and a loaded

handgun. Appellant told police the methamphetamine was “junk dope” she got from her

drug dealers. Tr. 13.

{¶3} Police returned to the residence to execute a search warrant on October 5,

2017. Appellant admitted she had speed, heroin and weed in her purse, but stated, “I

haven’t really been dealing, really.” Tr. 14. When reminded by police she did not use

heroin, she admitted she was selling heroin, but claimed she had just started. She

admitted she had a big bag of heroin, but did not think it was any good because “Money,”

her dealer, told her to mix it with something stronger. Police found baggies containing

64.16 grams of heroin and 22.78 grams of methamphetamine in the bedroom, as well as Licking County, Case No. 18-CA-41 3

1.96 grams of powder found to contain heroin and carfentanil. Police also found a tablet

determined to be .46 grams of hydrocodone.

{¶4} Police found a large stack of cash and notebooks used for keeping track of

drug sales. Appellant admitted the cash was money she owed her drug dealer. She told

police she got 40-60 grams of heroin from Money, and owed him $80.00 a gram.

{¶5} As police were leaving the residence they were notified a female came to

the area to check on Appellant. Police left, and a short time later a woman was observed

walking to Appellant’s home carrying a black and white bag.

{¶6} Police returned to Appellant’s home and she allowed them to look around.

In the bedroom they found another stack of cash. She told them it was hidden in her bed

sheets during the first search. She eventually gave officers the black and white bag,

stating, “There’s speed in it.” Tr. 17. Police found 67.47 grams of methamphetamine and

a gun inside.

{¶7} On October 26, 2017, Appellant was indicted by the Licking County Grand

Jury with one count of aggravated possession of drugs and one count of having a weapon

under disability, with an attached forfeiture specification of the firearm, based on the

January 12, 2017 search. A superseding indictment was filed on February 15, 2018,

charging appellant with possession of drugs (heroin, count one), trafficking in drugs

(heroin, count two), three counts aggravated possession of drugs (methamphetamine,

counts three through five), two counts having weapons while under disability (counts six

and seven), and aggravated possession of drugs (hydrocodone, count eight). The

indictment included two forfeiture specifications for the firearms and two forfeiture

specifications for the currency found during the search. Licking County, Case No. 18-CA-41 4

{¶8} Appellant entered pleas of guilty to all counts and was convicted pursuant

to her pleas. Appellant argued to the court she was indigent and forfeiture should not

apply to the currency. Appellant expressed remorse to the court, and stated she was

chronically ill with a heart condition and sold drugs to pay for her funeral.

{¶9} The court found counts one and two, possession of heroin and trafficking in

heroin, merged, and the State elected to have Appellant sentenced for trafficking. The

court sentenced Appellant to six years incarceration on count two, four years

incarceration on count three, two years incarceration on count four, five years

incarceration on count five, one year incarceration on count six, one year incarceration

on count seven, and six months incarceration on count eight. The court ordered counts

two, three, five, six and seven to run consecutively with each other and concurrently with

counts four and eight, for an aggregate sentence of seventeen years. The court found

pursuant to R.C. 2929.14(C)(4) consecutive sentences are necessary to protect the public

from future crime or to punish Appellant, and found consecutive sentences are not

disproportionate to the seriousness of her conduct or the danger she poses to the public.

The court further found her history of criminal conduct, including prior drug convictions,

demonstrates consecutive sentences are necessary to protect the public from future

crime by Appellant, and the sentence is not disproportionate given her behavior or the

sentences imposed on others for similar conduct. Based on her indigent status the court

did not impose a fine, but did impose the forfeiture specifications and ordered Appellant

to pay court costs.

{¶10} It is from the April 25, 2018 judgment of conviction and sentence Appellant

prosecutes her appeal, assigning as error: Licking County, Case No. 18-CA-41 5

I. THE TRIAL COURT UNLAWFULLY ORDERED FRIEND TO

SERVE CONSECUTIVE SENTENCES, IN VIOLATION OF HER RIGHTS

TO DUE PROCESS, GUARANTEED BY SECTION 10, ARTICLE I OF THE

OHIO CONSTITUTION AND THE FIFTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION.

II. THE TRIAL COURT ERRED BY ORDERING FRIEND TO

FORFEIT MONEY THAT LAW ENFORCEMENT SEIZED FROM HER, IN

VIOLATION OF HER RIGHTS AGAINST EXCESSIVE FINES, IN

VIOLATION OF ARTICLE I, SECTION 9 OF THE OHIO CONSTITUTION

AND THE EIGHTH AMENDMENT OF THE UNITED STATES

CONSTITUTION.

III. THE TRIAL COURT ERRED BY ORDERING FRIEND TO PAY

COURT COSTS, IN VIOLATION OF HER DUE PROCESS RIGHTS

UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION AND SECTION SIXTEEN, ARTICLE

ONE OF THE OHIO CONSTITUTION.

I.

{¶11} In her first assignment of error, Appellant argues the court erred in imposing

consecutive sentences. Appellant concedes the court made the findings required to

impose consecutive sentences under R.C. 2929.14(C)(4), but argues the record does not

support these findings. Licking County, Case No. 18-CA-41 6

{¶12} We review felony sentences using the standard of review set forth in R.C.

2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002, 59 N.E.3d 1231, ¶ 22;

State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015–Ohio–4049, 2015 WL 5722820,

¶ 31. R.C. 2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a

sentence and remand for resentencing where we clearly and convincingly find either the

record does not support the sentencing court's findings under R.C. 2929.13(B) or (D),

2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to law. An

appellate court may vacate or modify any sentence that is not clearly and convincingly

contrary to law only if the appellate court finds by clear and convincing evidence the

record does not support the sentence. Marcum, supra, at ¶ 23.

{¶13} Clear and convincing evidence is that evidence “which will provide in the

mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”

Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the

syllabus. “Where the degree of proof required to sustain an issue must be clear and

convincing, a reviewing court will examine the record to determine whether the trier of

facts had sufficient evidence before it to satisfy the requisite degree of proof.” Id. at 477,

120 N.E.2d 118.

{¶14} R.C. 2929.14(C)(4) provides for the imposition of consecutive sentences as

follows:

(4) If multiple prison terms are imposed on an offender for convictions

of multiple offenses, the court may require the offender to serve the prison

terms consecutively if the court finds that the consecutive service is Licking County, Case No. 18-CA-41 7

necessary to protect the public from future crime or to punish the offender

and that consecutive sentences are not disproportionate to the seriousness

of the offender's conduct and to the danger the offender poses to the public,

and if the court also finds any of the following:

(a) The offender committed one or more of the multiple offenses

while the offender was awaiting trial or sentencing, was under a sanction

imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised

Code, or was under post-release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of

one or more courses of conduct, and the harm caused by two or more of

the multiple offenses so committed was so great or unusual that no single

prison term for any of the offenses committed as part of any of the courses

of conduct adequately reflects the seriousness of the offender's conduct.

(c) The offender's history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime

by the offender.

{¶15} The trial court found consecutive sentences necessary to protect the public

from future crime or to punish Appellant, and found consecutive sentences are not

disproportionate to the seriousness of her conduct or the danger she poses to the public.

The court further found her history of criminal conduct, including prior drug convictions,

demonstrates consecutive sentences are necessary to protect the public from future Licking County, Case No. 18-CA-41 8

crime by Appellant, and the sentence is not disproportionate given her behavior or the

sentences imposed on others for similar conduct.

{¶16} Appellant argues she expressed remorse, she caused no harm to people or

property, and she acted out of a desire to pay for her own funeral rather than out of malice.

However, on three separate searches of her residence, including two on the same day,

Appellant was found in possession of large amounts of illegal drugs. She admitted to

selling heroin, and to mixing it with something stronger at the urging of her dealer.

Appellant had a prior conviction for possession of drugs, and was found with two firearms

she could not legally possess. We find the record supports the court’s imposition of

consecutive sentences.

{¶17} The first assignment of error is overruled.

II.

{¶18} In her second assignment of error, Appellant argues the court erred in

ordering forfeiture of $3,051.00 in currency. She argues because she was indigent, the

forfeiture constituted an excessive fine, particularly when she was convicted of only one

trafficking offense.

{¶19} R.C. 2981.02(A)(2) provides proceeds derived from or acquired through the

commission of an offense are subject to forfeiture. The forfeiture of property is a form of

criminal penalty and is, therefore, considered a fine for purposes of Section 9, Article I of

the Ohio Constitution and the Eighth Amendment of the United States Constitution. State

v. Hill, 70 Ohio St.3d 25, 34, 1994-Ohio-12, 635 N.E.2d 1248. The defendant bears the

burden to request a hearing and to prove by a preponderance of the evidence the

forfeiture is excessive. State v. Quick, 5th Dist. Licking No. 06-CA-142, 2007-Ohio-2623, Licking County, Case No. 18-CA-41 9

¶¶ 12-14, citing State v. Ziepfel, 107 Ohio App.3d 646, 669 N.E.2d 299 (1995). See also,

United States v. Alexander, 32 F.3d 1231 (C.A.8, 1994).

{¶20} Forfeitures are not favored in law or equity. State v. Baumholtz, 50 Ohio

St.3d 198, 553 N.E.2d 635 (1990). The proportionality of a forfeiture must be assessed

on a case-by-case basis. Hill, supra. Therefore, prior to entering an order of forfeiture, the

trial court must make an independent determination whether forfeiture of the property is

an excessive fine prohibited by the excessive fine clauses of the Ohio and United State's

Constitutions. Hill at 34. Forfeiture will only be considered an excessive fine when in light

of all the relevant circumstances, the forfeiture is grossly disproportionate to the offense

committed. Id.

{¶21} Neither the United States Supreme Court nor the Ohio Supreme Court has

offered any guidance as to the exact dollar figure which causes a forfeiture to become so

grossly disproportionate to the crime charged as to become excessive. Quick at ¶14.

However, case law has established the following factors to be considered in determining

the constitutionality of the forfeiture: (1) the value of the property; (2) the circumstances

of the individual case; (3) the harm caused or the potential harm caused; (4) whether the

property sought to be forfeited was closely related to the crime; and, (5) any other factors

relevant to the issue. Id., citing Zipefel, supra. In United States v. Sarbello, 985 F.2d 716

(C.A.3, 1993), the court emphasized in order to be an “excessive fine”, the

“constitutionally cognizable disproportionality must reach such a level of excessiveness

that in justice the punishment is more that the crime”. Id. at 724.

{¶22} We note Appellant did not request a hearing on the issue of whether the

forfeiture was excessive, but rather raised it during the sentencing hearing. The trial court Licking County, Case No. 18-CA-41 10

declined to impose fines on Appellant which could have totaled $42,500, based on her

indigency. In contrast, the forfeited cash totaled only $3,051. Police found notebooks

detailing drug sales with the first stack of cash, and Appellant admitted she owed the

money found to her drug dealer for selling heroin. The sale of heroin, particularly the

heroin she had mixed with carfentanil to make it stronger, had the potential to cause harm.

We find based on the record of the change of plea and sentencing hearing the court did

not err in ordering the forfeiture.

{¶23} The second assignment of error is overruled.

III.

{¶24} In her third assignment of error, the court argues the court erred in ordering

her to pay court costs because she is indigent.

{¶25} R.C. 2947.23(A)(1)(a) states in pertinent part: “In all criminal cases,

including violations of ordinances, the judge or magistrate shall include in the sentence

the costs of prosecution, including any costs under section 2947.231 of the Revised

Code, and render a judgment against the defendant for such costs. * * *.” (Emphasis

added). Accordingly, even if a defendant is indigent, a sentencing court must include the

costs of prosecution in the sentence and render a judgment against the defendant for

costs. State v. Underwood, 5th Dist. Muskingum No. CT2017-0024, 2018-Ohio-730, ¶ 41;

State v. McHenry, 5th Dist. Stark No. 2017CA00119, 2017–Ohio–7672, ¶ 12, citing State

v. White, 103 Ohio St.3d 580, 2004–Ohio–5989, 817 N.E.2d 393, ¶ 8. Further, Appellant

did not object to the imposition of court costs, even though the trial court orally stated they

were part of the sentence. Tr. 38. Licking County, Case No. 18-CA-41 11

{¶26} We find no error in the imposition of court costs. The third assignment of

error is overruled.

{¶27} The judgment of the Licking County Common Pleas Court is affirmed.

By: Hoffman, J.

Gwin, P.J. and

Wise, J. concur