State v. Humphrey

2022 Ohio 2456

• Court: Ohio Court of Appeals
• Decided: July 18, 2022
• Docket: CA2021-11-145
• Status: Published

Opinion

[Cite as State v. Humphrey, 2022-Ohio-2456.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, : CASE NO. CA2021-11-145

Appellee, : OPINION 7/18/2022 : - vs - :

JAMES A. HUMPHREY, :

Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2021-06-0816

Michael T. Gmoser, Butler County Prosecuting Attorney, and Michael Greer, Assistant Prosecuting Attorney, for appellee.

Law Office of John H. Forg, and John H. Forg, II, for appellant.

M. POWELL, P.J.

{¶ 1} Appellant, James Humphrey, appeals a decision of the Butler County Court

of Common Pleas ordering the forfeiture and destruction of five firearms and personal

property confiscated from Humphrey's home.

{¶ 2} On June 7, 2021, Humphrey was found in possession of a concealed black-

powder pistol without a legal permit to carry such weapon. Subsequently, during the Butler CA2021-11-145

execution of a search warrant at his home, police found and seized several firearms, 17

knives, 7 swords, one hatchet, and one saw. Humphrey was indicted in August 2021 on

one count of carrying concealed weapons and one count of violating a protection order.

Neither count included a forfeiture specification under R.C. 2941.1417. Pursuant to plea

negotiations, Humphrey pled guilty to carrying a concealed weapon and agreed to the

forfeiture of the black-powder pistol; in exchange, the state dismissed the charge of violating

a protection order. The guilty plea form signed by Humphrey specifically states, "Firearm

to be forfeited and destroyed."

{¶ 3} A sentencing hearing was held on November 10, 2021. The state advised the

trial court that in addition to the forfeiture and destruction of the black-powder pistol, it was

seeking the forfeiture and destruction of five firearms confiscated from Humphrey's home,

to wit, a Winchester Model 70 rifle, three muzzleloaders, and an Optima Pro .50-caliber rifle

with a scope. The state further mentioned the 17 knives, the 7 swords, the hatchet, and the

saw confiscated from Humphrey's home. The trial court sentenced Humphrey to a five-year

community control term and ordered the forfeiture and destruction of Humphrey's black-

powder pistol. Over Humphrey's objection, the trial court further ordered the forfeiture and

destruction of the "swords, machetes, and knives" and the five firearms confiscated from

Humphrey's home during the execution of the search warrant. On November 16, 2021, the

trial court filed an order for the forfeiture and destruction of the black-powder pistol, a

"Winchester Model 70, .243 with scope, [a] .50 Caliber Harper Ferry Antique Muzzleloader

with no Serial Number, [a] Tradition .50 Caliber Bolt Action Muzzleloader, [a] Stone

Mountain Arms .50 Caliber Inline Muzzleloader, [an] Optima Pro .50 Caliber with scope,

and all other weapons." [sic.] (Serial numbers omitted).

{¶ 4} Humphrey now appeals, raising one assignment of error:

{¶ 5} THE ORDER REQUIRING THE FORFEITURE AND DESTRUCTION OF

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FIREARMS, SWORDS, KNIVES, AND OTHER PROPERTY POSSESSED BY

HUMPHREY SHOULD BE REVERSED.

{¶ 6} Humphrey challenges the trial court's order of forfeiture "of his handguns and

'all other weapons,' i.e. his swords, knives, a hatchet and a saw," arguing it failed to comply

with the statutory provisions governing criminal forfeiture.

{¶ 7} R.C. Chapter 2981 governs both civil and criminal forfeitures of contraband,

proceeds, and criminal instrumentalities. See R.C. 2981.02(A). Upon the commission of

an offense, "[a] law enforcement officer may seize property that the officer has probable

cause to believe is property subject to forfeiture." R.C. 2981.03(A)(2). A prosecuting

attorney may then pursue forfeiture of seized property in a criminal proceeding under R.C.

2981.04, a civil proceeding under R.C. 2981.05, or both. R.C. 2981.03(F); State v. Leet,

2d Dist. Montgomery No. 28870, 2021-Ohio-1334, ¶ 12. Civil forfeiture is initiated by filing

"a complaint requesting an order that forfeits the property to the state or a political

subdivision." R.C. 2981.05(A).

{¶ 8} As pertinent here, R.C. 2981.04(A)(1) provides that property may be forfeited

in a criminal proceeding "only if" the defendant is convicted of an offense and the indictment

charging the offense contains a forfeiture specification under R.C. 2941.1417. Absent a

forfeiture specification in the charging instrument, property may still be subject to forfeiture

if it was "not reasonably foreseen to be subject to forfeiture at the time of filing the

indictment" and "the prosecutor, upon discovering the property to be subject to forfeiture,

gave prompt notice of this fact to the alleged offender * * * under Criminal Rule 7(E)[.]" R.C.

2981.04(A)(2).

{¶ 9} Based upon the conclusory paragraph in Humphrey's brief, we construe his

argument as solely challenging the forfeiture and destruction of the firearms and personal

property confiscated from his home, and not the black-powder pistol recovered on his

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person. However, even assuming Humphrey challenges the forfeiture of the black-powder

pistol, we find no error in the trial court's decision because the pistol was forfeited as part

of a plea agreement and was therefore not subject to R.C. Chapter 2981. "[W]hen [a]

defendant enters a plea agreement calling for the forfeiture of seized property, adherence

to the statutory procedures [is] unnecessary." State v. Compton, 8th Dist. Cuyahoga No.

109427, 2021-Ohio-3106, ¶ 19. In other words, "[w]hen property is forfeited through a plea

agreement, the forfeiture is 'not effectuated by operation of the statutory provisions

governing forfeiture of contraband, but rather by the parties' agreement.'" State v. Glanton,

6th Dist. Wood No. WD-18-091, 2020-Ohio-834, ¶ 15. Because the forfeiture of the black-

powder pistol was expressly effectuated by Humphrey's negotiated plea agreement with the

state and not R.C. Chapter 2981, the trial court was not required to comply with R.C.

Chapter 2981 and did not err in ordering its forfeiture.

{¶ 10} We find, however, that the trial court erred in ordering the forfeiture and

destruction of the five firearms and personal property confiscated from Humphrey's home

during the execution of the search warrant. The state did not pursue civil forfeiture of these

items under R.C. 2981.05. Regarding criminal forfeiture, the indictment did not include a

forfeiture specification under R.C. 2941.1417 as required by R.C. 2981.04(A)(1) and the

state never amended the indictment to add a forfeiture specification. Although the state

filed a Crim.R. 7(E) bill of particulars, it did not provide notice of the state's intent to seek

forfeiture of the items as required by R.C. 2981.04(A)(2) and the state never amended the

bill of particulars. In other words, the state did not provide Humphrey with notice that the

items were subject to forfeiture either in the indictment or the bill of particulars. Unlike the

black-powder pistol, forfeiture of the items was not part of the plea agreement and was not

included in the plea form.

{¶ 11} In light of the foregoing, we find that the trial court had no authority to order

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the forfeiture and destruction of the five firearms and personal property confiscated from

Humphrey's home during the execution of the search warrant. State v. Little, 12th Dist.

Butler No. CA2014-01-020, 2014-Ohio-4756, ¶ 34. Humphrey's assignment of error is

sustained and the trial court's decision ordering the forfeiture of the Winchester Model 70,

.243 with scope, the .50-caliber Harper Ferry Antique Muzzleloader with no Serial Number,

the Tradition .50-caliber Bolt Action Muzzleloader, the Stone Mountain Arms .50-caliber

Inline Muzzleloader, the Optima Pro .50-caliber with scope, the 17 knives, the 7 swords, the

hatchet, and the saw confiscated from Humphrey's home during the execution of the search

warrant is reversed and vacated. Id. We recognize that with our decision, there could be

other issues relative to Humphrey's community control sanctions; however, those matters

are beyond the scope of this appeal and we decline to consider them.

{¶ 12} Judgment reversed and vacated.

S. POWELL and HENDRICKSON, JJ., concur.

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