[Cite as In re Seizure of Approximately $20,000 U.S. Currency, 2017-Ohio-1452.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 104850




              IN RE: SEIZURE OF APPROXIMATELY
                     $20,000 U.S. CURRENCY

                                          [Appeal by the State of Ohio]




                                           JUDGMENT:
                                            AFFIRMED


                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                  Case No. CR-16-607434-A

        BEFORE:          Jones, J., Blackmon, P.J., and Celebrezze, J.

        RELEASED AND JOURNALIZED: April 20, 2017
ATTORNEYS FOR APPELLANT

Michael C. O’Malley
Cuyahoga County Prosecutor

BY: Daniel T. Van
        Andrew J. Santoli
Assistant County Prosecutors
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113


ATTORNEY FOR APPELLEE

Paul F. Adamson
Burdon and Merlitti
137 South Main Street, Suite 201
Akron, Ohio 44308
LARRY A. JONES, SR., J.:

         {¶1} In this appeal, the state of Ohio contends that the trial court erred in granting

the motion of petitioner, Ricardo Fletcher, for the return of seized funds.                 For the

reasons that follow, we affirm.

         {¶2} The record before us demonstrates the following.               In November 2015,

Nicholas Rowe, a.k.a. Joshua Luckey (“Rowe”), was found dead, buried in the backyard

of a vacant Cleveland home with approximately 20 pounds of concrete covering him.

Ricardo Fletcher knew Rowe, who lived in California, but would frequently travel to the

Cleveland area, where it was believed he would engage in drug transactions with

Fletcher.1

         {¶3} According to Fletcher’s counsel, in November 2015, Fletcher owed Rowe

approximately $8,500, so Fletcher met Rowe and paid him. A day or two later, Fletcher

was contacted by friends and family of Rowe’s from California who told him that Rowe’s

whereabouts were unknown.           Fletcher learned from a tracking device where Rowe’s

phone was, and went to that location; that was on November 19, 2015. Fletcher found a

car with its windows broken and saw blood in the vehicle; he called the police to the

scene.       The police arrived and retrieved the cell phone that had been in the car.

Fletcher returned home to his apartment and gathered valuables, including his “life


        A hearing was held on Fletcher’s motion. No witnesses were presented, but counsel made
         1



arguments to the court. Fletcher’s counsel indicated that it was his understanding that Fletcher gave
a statement to the police, in which he indicated that he knew Rowe and he and Rowe had previously
been involved in “illicit activities.”
savings” that consisted of approximately $20,000 in cash, to have with him. According

to counsel, he did so because he was uncomfortable and uncertain about what had

happened to Rowe.

       {¶4} Fletcher returned to the scene the following day, November 20.        He saw a

woman there, whom he had encountered the day before, and talked to her.         While the

two were talking, they saw a gun.    Fletcher called the police to the scene again.   The

police arrived, and after talking to Fletcher, they asked him for permission to search his

car.   Fletcher consented, and during the search the police recovered and seized the

approximate $20,000 in cash, among other items.     Fletcher also provided a DNA sample

to the police.

       {¶5} No indictment or charges of any nature were filed against Fletcher.    Neither

were any forfeiture proceedings, civil or criminal, initiated against him.   In June 2016,

Fletcher filed a motion seeking return of the seized funds.   He claimed that he was the

lawful owner of the money and that the seizure of it was unlawful.      The state opposed

Fletcher’s motion, contending that the funds were being held as part of an ongoing

investigation.

       {¶6} The state maintained that because of the nature of Fletcher and Rowe’s

relationship, Fletcher could in “no way, shape, or form” contend that he was the lawful

owner of the money.      According to the state, through Fletcher’s “own words,” the

money was “drug proceeds” from either a sale he completed with Rowe or proceeds

Fletcher “took” from Rowe “either in the time before his death or immediately after his
death.”

       {¶7} The consent to search form signed by Fletcher and the search inventory sheet

were stipulated to by Fletcher and admitted into evidence.      After the hearing, the trial

court granted Fletcher’s motion and ordered that the funds be released to him.         This

appeal by the state follows.

       {¶8} R.C. 2981.03, the statute under which Fletcher’s motion for return of the

seized property was based, provides in relevant part as follows:

       (4) 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. * * * 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.

R.C. 2981.03(A)(4).

       {¶9} The property at issue here, money, was not titled or registered under law and,

therefore, it was Fletcher’s burden to demonstrate by a preponderance of the evidence that

the seizure of it was unlawful and he was entitled to it.   “Preponderance of the evidence

simply means ‘evidence which is of a greater weight or more convincing than the

evidence which is offered in opposition to it.’” In re Starks, 2d Dist. Darke No. 1646,

2005-Ohio-1912, ¶ 15, quoting Black’s Law Dictionary 1182 (6th Ed.1998).
      {¶10} As discussed, at the hearing, Fletcher’s counsel represented that the money

was Fletcher’s and that he had it in his car because it was his life savings and, based on

concern about Rowe, he took the money, and other valuable items, out of his apartment.

Counsel recounted to the court Fletcher’s cooperation with the police, which included

twice calling them, consenting to their search of his vehicle,2 and supplying them with a

DNA sample.

      {¶11} Further, Fletcher’s counsel argued that the state was time barred from

retaining the money under R.C. 2981.03(F). That section provides in relevant part as

follows:

       A prosecutor may file a forfeiture action under section 2981.04 or 2981.05
      of the Revised Code, or both. If property is seized pursuant to this section
      and a criminal forfeiture has not begun under section 2981.04 of the
      Revised Code, the prosecutor of the county in which the seizure occurred
      shall commence a civil action to forfeit that property under section 2981.05
      of the Revised Code.

      If the property seized includes property alleged to be a mobile
      instrumentality or includes personal, business, or governmental records, the
      civil forfeiture action shall be brought within thirty days of seizure.
      Otherwise, the action shall be brought within sixty days of seizure. In
      either case, the period within which the action shall be brought may be
      extended by agreement of the parties or by the court for good cause shown.
      {¶12} The record here establishes that neither civil nor criminal forfeiture

proceedings were ever commenced.              At the time of the hearing in August 2016, well

over 60 days had passed since the money was seized in November 2015.

      {¶13} The state contends that it has a right to the funds notwithstanding R.C.


      2
          Fletcher’s consent was to search the vehicle; he did not consent to a seizure of the money.
2981.03(F) because the funds are part of an ongoing investigation and Fletcher is a

“person of interest” in its investigation. R.C. 2981.11(A) provides for the retention of

seized property in ongoing matters, stating that “any property that has been * * * lawfully

seized * * * 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 * * *.” The state cites two cases in support of its position that it should retain

the money here because of an ongoing investigation: State v. Rivera, 6th Dist. Lucas

No. L-13-1170, 2014-Ohio-742 and State v. Bates, 6th Dist. Williams No. WM-11-007,

2012-Ohio-1397. We find both cases distinguishable from this case.

      {¶14} In Rivera, the defendant was arrested for sexually oriented crimes and a

video camera, “palmcorder,” Polaroid camera, tapes, and other related photographic and

taping accessories were seized from him.     After the defendant’s conviction, which was

entered after his Alford plea, he challenged his conviction and sentence via several

postconviction petitions, a direct appeal, and a delayed appeal.      His conviction was

upheld throughout. The defendant also sought to have the seized property returned to

him. The state opposed his request, contending that the materials might be needed in a

future retrial of the defendant’s case and the materials contained evidence that the

defendant performed sexual acts on minor children.

      {¶15} The trial court in Rivera found that because the defendant “continues to

challenge the validity of his convictions, there is a possibility that the seized property

might need to be used as evidence in future retrial,” and denied his motion. Id. at ¶ 7.
The Sixth Appellate Court upheld the trial court, finding no abuse of discretion in its

decision not to return the property to the defendant.       The appellate court noted that,

because the defendant entered an Alford plea, and the

        evidence held by the state was not entered into the record and [the
        defendant] has repeatedly challenged his conviction and sentence, there
        remains a possibility the evidence would be needed if the case was ever
        reversed and remanded for retrial.

Id. at ¶ 9.

        {¶16} In Bates, the defendant was charged with numerous counts related to his

fraudulent misrepresentation of his identity and menacing behavior toward his victims,

and a laptop computer was seized from him.            The state dismissed the indictment,

however, stating that the “matter will be presented to a future Grand Jury for

consideration of a new indictment.” Id. at ¶ 4.       Approximately four months after the

state had dismissed the indictment, the defendant sought the return of his laptop

computer.     The trial court denied his request.

        {¶17} In affirming the trial court’s decision not to return the defendant’s computer,

the Sixth Appellate District noted that there was “ample documentation in the record that

it was the state’s intent to resubmit [the defendant’s] case to the grand jury,” and held that

“[l]ogically, items being held as part of a criminal investigation are being held to be used

as evidence or for the lawful purpose of assisting the investigation.” Id. at ¶ 12, 15.

        {¶18} Rivera and Bates are distinguishable from this case in that they both

concerned evidence that was being held in situations where the record established more

than a remote possibility of further litigation in which the evidence would be needed.
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.3 We are not persuaded by

the state’s bare assertion that it was totally implausible that Fletcher would legally have

$20,000, and there is no requirement under Ohio law that required Fletcher to prove that

the funds were his “life savings.”

        {¶19} On this record, the trial court properly granted Fletcher’s motion for the

return of the seized funds.

        {¶20} Judgment affirmed.

        It is ordered that appellant bear the 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.




LARRY A. JONES, SR., JUDGE

PATRICIA ANN BLACKMON, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR


        3
         We note that the record establishes that the investigating detective was present at the hearing,
but did not testify as to what the ongoing investigation entailed.
