[Cite as State v. Glenn, 2023-Ohio-4654.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellant, : No. 112696 v. :
DANIEL GLENN, :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED RELEASED AND JOURNALIZED: December 21, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-22-668526-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, Eben O. McNair and Daniel T. Van, Assistant Prosecuting Attorneys, for appellant.
FRANK DANIEL CELEBREZZE, III, P.J.:
Plaintiff-appellant the state of Ohio (“the state”) appeals the judgment
of the Cuyahoga County Court of Common Pleas ordering the return of property in
the custody of law enforcement despite the state’s intent to utilize the property in a
future indictment or retrial. After a thorough review of the record and law, this court
reverses and remands for further proceedings consistent with this opinion. I. Factual and Procedural History
In January 2022, a 17-count indictment was returned against
defendant-appellee Daniel Glenn (“Glenn”) stemming from the murder of Daniel
Scholz and Kara Odom, who were found shot to death in a vehicle on Thanksgiving
Day in 2021.
During the pendency of the instant matter, Glenn was charged in a
separate matter, Cuyahoga C.P. No. CR-22-672463-B, with three counts of
attempted murder, four counts of felonious assault, discharge of firearm on or near
prohibited premises, improperly handling firearms in a motor vehicle, and having
weapons while under disability.
On January 19, 2023, the state filed a motion to continue the trial,
noting that the state was engaged in a separate double-homicide trial and that
Glenn’s counsel did not oppose the continuance.
On the date the trial was to commence, at a hearing, the state further
explained its basis for the continuance, noting that several pieces of discovery were
still outstanding. Particularly, the state noted that it was still waiting for a ballistics
report and waiting for several cell phones to be “cracked” so that the data therein
could be retrieved. Both the state and Glenn’s counsel also indicated that they were
occupied with trials scheduled for the same time as this matter and were unprepared
for trial.
During a later pretrial in January 2023, the state moved to dismiss the
case without prejudice, explaining that it “had insufficient evidence at this time to proceed to trial and this case needs additional investigation.” (Tr. 67.) The court
granted the motion and ordered the defendant released.
On March 14, 2023, Glenn filed a “motion to release property” asking
the court to order the release of property that was seized as evidence in the following
matter, including “car titles of Laura St. Clair; an iPhone 8; an iPhone 11; two iPhone
13 Pros; and Mr. Glenn’s identification card.” Glenn’s motion simply alleged that he
did not believe the state required the property for any further evidentiary purposes.
Twenty-seven days later, the trial court granted the motion, noting that the state had
not opposed the motion.
The state commenced the instant appeal, assigning a single 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 [state] intended to use in a re-trial.
II. Law and Analysis
In its sole assignment of error, the state argues that the trial court erred
in granting Glenn’s motion because “the court knew the [state] intended to use the
phones as evidence to re-indict Glenn” and erred in returning the property without
a hearing. Glenn did not file a responsive brief.
A law enforcement agency’s authority to retain property, even after
dismissal of a case, is derived from R.C. 2981.11(A)(1), directing that
[a]ny property that has been * * * 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[.]
State v. Holloway, 6th Dist. Wood No. WD-20-021, 2021-Ohio-1843, ¶ 23.
When the evidence could be used during a potential retrial, various
Ohio courts have applied this provision as authority that law enforcement could
continue to retain the property. See, e.g. State v. Metz, 8th Dist. Cuyahoga No.
107945, 2019-Ohio-3370, ¶ 12 (“Metz’s cell phone is a piece of evidence that could
be used during a potential retrial”); State v. Thompson, 2d Dist. Montgomery No.
27989, 2018-Ohio-4690, ¶ 17 (“[R]egardless of their evidentiary weight, the cell
phones are pieces of evidence that could be used during a potential retrial, and thus
may be held pursuant to R.C. 2981.11(A).”); State v. Bates, 6th Dist. Williams No.
WM-11-007, 2012-Ohio-1397, ¶ 12 (“There is, however, ample documentation in the
record that it was the state’s intent to resubmit appellant’s case to the grand jury.”);
State v. Rivera, 6th Dist. Lucas No. L-13-1170, 2014-Ohio-742, ¶ 7 (“[T]here is a
possibility that the seized property might need to be used as evidence in a future
retrial.”). Compare In re Seizure of Approximately $20,000 United States
Currency, 8th Dist. Cuyahoga No. 104850, 2017-Ohio-1452, ¶ 18 (“Here, however,
the state only made a bare assertion that the investigation was ongoing and that
Fletcher was a person of interest, without presenting any evidence of a current
ongoing investigation regarding the homicide and Fletcher.”).
A request for the return of seized property may be pursued three ways:
“as a civil replevin action, through a motion within an existing forfeiture proceeding, or through a post-dismissal or postconviction motion pursuant to R.C.
2981.03(A)(4) or R.C. 2981.11(A)(1).” State v. Martre, 6th Dist. Lucas No. L-21-
1199, 2022-Ohio-639, ¶ 23, citing State v. Holloway, 6th Dist. Wood No. WD-20-
021, 2021-Ohio-1843, ¶ 11-24.
Applicable to the instant matter, “R.C. 2981.03(A)(4) permits a person
‘aggrieved by an alleged unlawful seizure of property’ to seek relief from seizure.”
State v. Moreno, 2017-Ohio-479, 85 N.E.3d 238, ¶ 22 (2d Dist.), quoting R.C.
2981.03(A)(4). See also State v. Leet, 2021-Ohio-1334, 171 N.E.3d 835, ¶ 15 (2d
Dist.). “R.C. 2981.03(A)(4) encompasses claims for the return of property that has
been seized, even when the [state] has not pursued forfeiture.” Moreno at ¶ 26;
Thompson at ¶ 10, citing State v. Germany, 1st Dist. Hamilton No. C-130777, 2014-
Ohio-3202, ¶ 11. See also State v. Waycaster, 8th Dist. Cuyahoga No. 108476, 2020-
Ohio-1604, ¶ 13 (discussing the differences between property that has been “seized”
versus “forfeited.”). Therefore, the trial court’s authority to return the property is
governed by R.C. 2981.03(A)(4), that pertinently 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.
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[Cite as State v. Glenn, 2023-Ohio-4654.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellant, : No. 112696 v. :
DANIEL GLENN, :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED RELEASED AND JOURNALIZED: December 21, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-22-668526-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, Eben O. McNair and Daniel T. Van, Assistant Prosecuting Attorneys, for appellant.
FRANK DANIEL CELEBREZZE, III, P.J.:
Plaintiff-appellant the state of Ohio (“the state”) appeals the judgment
of the Cuyahoga County Court of Common Pleas ordering the return of property in
the custody of law enforcement despite the state’s intent to utilize the property in a
future indictment or retrial. After a thorough review of the record and law, this court
reverses and remands for further proceedings consistent with this opinion. I. Factual and Procedural History
In January 2022, a 17-count indictment was returned against
defendant-appellee Daniel Glenn (“Glenn”) stemming from the murder of Daniel
Scholz and Kara Odom, who were found shot to death in a vehicle on Thanksgiving
Day in 2021.
During the pendency of the instant matter, Glenn was charged in a
separate matter, Cuyahoga C.P. No. CR-22-672463-B, with three counts of
attempted murder, four counts of felonious assault, discharge of firearm on or near
prohibited premises, improperly handling firearms in a motor vehicle, and having
weapons while under disability.
On January 19, 2023, the state filed a motion to continue the trial,
noting that the state was engaged in a separate double-homicide trial and that
Glenn’s counsel did not oppose the continuance.
On the date the trial was to commence, at a hearing, the state further
explained its basis for the continuance, noting that several pieces of discovery were
still outstanding. Particularly, the state noted that it was still waiting for a ballistics
report and waiting for several cell phones to be “cracked” so that the data therein
could be retrieved. Both the state and Glenn’s counsel also indicated that they were
occupied with trials scheduled for the same time as this matter and were unprepared
for trial.
During a later pretrial in January 2023, the state moved to dismiss the
case without prejudice, explaining that it “had insufficient evidence at this time to proceed to trial and this case needs additional investigation.” (Tr. 67.) The court
granted the motion and ordered the defendant released.
On March 14, 2023, Glenn filed a “motion to release property” asking
the court to order the release of property that was seized as evidence in the following
matter, including “car titles of Laura St. Clair; an iPhone 8; an iPhone 11; two iPhone
13 Pros; and Mr. Glenn’s identification card.” Glenn’s motion simply alleged that he
did not believe the state required the property for any further evidentiary purposes.
Twenty-seven days later, the trial court granted the motion, noting that the state had
not opposed the motion.
The state commenced the instant appeal, assigning a single 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 [state] intended to use in a re-trial.
II. Law and Analysis
In its sole assignment of error, the state argues that the trial court erred
in granting Glenn’s motion because “the court knew the [state] intended to use the
phones as evidence to re-indict Glenn” and erred in returning the property without
a hearing. Glenn did not file a responsive brief.
A law enforcement agency’s authority to retain property, even after
dismissal of a case, is derived from R.C. 2981.11(A)(1), directing that
[a]ny property that has been * * * 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[.]
State v. Holloway, 6th Dist. Wood No. WD-20-021, 2021-Ohio-1843, ¶ 23.
When the evidence could be used during a potential retrial, various
Ohio courts have applied this provision as authority that law enforcement could
continue to retain the property. See, e.g. State v. Metz, 8th Dist. Cuyahoga No.
107945, 2019-Ohio-3370, ¶ 12 (“Metz’s cell phone is a piece of evidence that could
be used during a potential retrial”); State v. Thompson, 2d Dist. Montgomery No.
27989, 2018-Ohio-4690, ¶ 17 (“[R]egardless of their evidentiary weight, the cell
phones are pieces of evidence that could be used during a potential retrial, and thus
may be held pursuant to R.C. 2981.11(A).”); State v. Bates, 6th Dist. Williams No.
WM-11-007, 2012-Ohio-1397, ¶ 12 (“There is, however, ample documentation in the
record that it was the state’s intent to resubmit appellant’s case to the grand jury.”);
State v. Rivera, 6th Dist. Lucas No. L-13-1170, 2014-Ohio-742, ¶ 7 (“[T]here is a
possibility that the seized property might need to be used as evidence in a future
retrial.”). Compare In re Seizure of Approximately $20,000 United States
Currency, 8th Dist. Cuyahoga No. 104850, 2017-Ohio-1452, ¶ 18 (“Here, however,
the state only made a bare assertion that the investigation was ongoing and that
Fletcher was a person of interest, without presenting any evidence of a current
ongoing investigation regarding the homicide and Fletcher.”).
A request for the return of seized property may be pursued three ways:
“as a civil replevin action, through a motion within an existing forfeiture proceeding, or through a post-dismissal or postconviction motion pursuant to R.C.
2981.03(A)(4) or R.C. 2981.11(A)(1).” State v. Martre, 6th Dist. Lucas No. L-21-
1199, 2022-Ohio-639, ¶ 23, citing State v. Holloway, 6th Dist. Wood No. WD-20-
021, 2021-Ohio-1843, ¶ 11-24.
Applicable to the instant matter, “R.C. 2981.03(A)(4) permits a person
‘aggrieved by an alleged unlawful seizure of property’ to seek relief from seizure.”
State v. Moreno, 2017-Ohio-479, 85 N.E.3d 238, ¶ 22 (2d Dist.), quoting R.C.
2981.03(A)(4). See also State v. Leet, 2021-Ohio-1334, 171 N.E.3d 835, ¶ 15 (2d
Dist.). “R.C. 2981.03(A)(4) encompasses claims for the return of property that has
been seized, even when the [state] has not pursued forfeiture.” Moreno at ¶ 26;
Thompson at ¶ 10, citing State v. Germany, 1st Dist. Hamilton No. C-130777, 2014-
Ohio-3202, ¶ 11. See also State v. Waycaster, 8th Dist. Cuyahoga No. 108476, 2020-
Ohio-1604, ¶ 13 (discussing the differences between property that has been “seized”
versus “forfeited.”). Therefore, the trial court’s authority to return the property is
governed by R.C. 2981.03(A)(4), that pertinently 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. The court may extend the time for the hearing on the motion by consent of the parties or for good cause shown. At the hearing, if the property seized is titled or registered under law, the state or political subdivision shall demonstrate by a preponderance of the evidence that the seizure was lawful and that the person is not entitled to the property. 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 record does not reflect that the state was seeking forfeiture nor
was there an active indictment due to the fact that the state had voluntarily
dismissed the case and then the motion for return of property was filed. As such,
R.C. 2981.03(A)(4) dictates that the court was required to hold a hearing on the
motion “not later than twenty-one days” after the motion was filed and receive
evidence pursuant to the standards set based on whether the property was titled or
registered under law. We note that this hearing is important in the instant matter,
where Glenn’s motion did not indicate, especially not by a preponderance of the
evidence, that Glenn himself was entitled to the property requested — especially
because, on its face, the motion indicates that the seized car title was in another
person’s name (indicating that it is “titled or registered under the law”) and it is
unknown whether all of the seized phones (which are typically not “titled or
registered under the law”) belonged to Glenn.
The trial court acted contrary to law in failing to hold the requisite
hearing pursuant to R.C. 2981.03(A)(4). See Jenkins v. Cleveland, 8th Dist.
Cuyahoga No. 104768, 2017-Ohio-1054, ¶ 25. Accordingly, the state’s sole
assignment of error is sustained, and this matter is remanded to the trial court for
further proceedings consistent with this opinion. III. Conclusion
The trial court failed to hold a hearing on Glenn’s motion to release his
property, as is statutorily required pursuant to R.C. 2981.03(A)(4). As a result, the
trial court’s order is reversed and the case is remanded for further proceedings
consistent with this opinion.
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
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.
FRANK DANIEL CELEBREZZE, III, PRESIDING JUDGE
MICHELLE J. SHEEHAN, J., and EILEEN T. GALLAGHER, J., CONCUR