[Cite as State v. Saenz, 2014-Ohio-1408.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT




STATE OF OHIO                                :       JUDGES:
                                             :       Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                   :       Hon. Sheila G. Farmer, J.
                                             :       Hon. Patricia A. Delaney, J.
-vs-                                         :
                                             :
MICHAEL SAENZ                                :       Case No. 13-CA-70
                                             :
        Defendant-Appellant                  :       OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. 12 CR 00642



JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    March 26, 2014




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellee

BRIAN T. WALTZ                                       THOMAS S. GORDON
20 South Second Street                               8026 Woodstream Drive, NW
4th Floor                                            Canal Winchester, OH 43110
Newark, OH 43055
Licking County, Case No. 13-CA-70                                                         2

Farmer, J.

       {¶1}      On December 12, 2012, a search warrant was executed on the home of

appellant, Michael Saenz. A large marijuana growing operation was discovered.

       {¶2}      On December 21, 2012, the Licking County Grand Jury indicted appellant

on one count of possessing marijuana in violation of R.C. 2925.11 and one count of

cultivating marijuana in violation of R.C. 2925.04.          Each count carried a forfeiture

specification on numerous items, including appellant's residence.

       {¶3}      On April 5, 2013, appellant filed a memorandum contra to the forfeiture

specification.

       {¶4}      On July 2, 2013, appellant pled guilty as charged. Following the plea, the

trial court held a hearing on the forfeiture specification. By judgment entry filed July 5,

2013, the trial court merged the marijuana counts and sentenced appellant to four years

in prison and imposed a $7,500.00 fine. The trial court also found appellant's residence

was an instrumentality of the cultivation offense, and granted forfeiture of the items

listed in the indictment, including appellant's residence.

       {¶5}      Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                              I

       {¶6}      "INSUFFICIENT EVIDENCE WAS PRESENTED TO SUPPORT THE

TRIAL COURT'S FORFEITURE ORDER."

                                              II

       {¶7}      "THE FORFEITURE OF THE HOME IS EXCESSIVE IN PROPORTION

TO THE AMOUNT OF THE MANDATORY FINE LEVIED ON THE APPELLANT."
Licking County, Case No. 13-CA-70                                                       3


                                              I

       {¶8}   Appellant claims the forfeiture of his residence was against the sufficiency

of the evidence. We disagree.

       {¶9}   Appellant also argues the forfeiture of weapons and military equipment

was unwarranted.      We note during the forfeiture hearing, appellant objected to the

forfeiture of only his residence (T. at 25-26):



              MS. BURKETT: Your Honor, I believe that our legal argument is set

       forth in the memorandum contra, and the issue - - the only factual issue

       that we are disputing is whether or not the house was specifically

       designed to be used for marijuana.

              THE COURT: Okay.

              MS. BURKETT: I'm not sure that the Court finds that an element

       that it would consider in making its decision, but I'm prepared to offer

       evidence in that regard if it does.

              And I should not say the only. The second issue is how much

       income he actually derived from that, it that's an important issue for the

       Court in making a determination. Those are the two issues that Mr. Saenz

       would testify to.



       {¶10} In closing argument, defense counsel stated the following: "So I would ask

that the Court not grant the forfeiture as it is related to the home. We didn't put on any
Licking County, Case No. 13-CA-70                                                      4


testimony specifically about the forfeiture of the weapons and are not specifically

arguing that those are not subject to forfeiture. Thank you." T. at 58.

       {¶11} In his memorandum contra filed April 5, 2013, appellant stated the

following:



              Now comes the defendant, by and through counsel, and

       respectfully moves this Honorable Court to deny the State of Ohio request

       that Mr. Saenz's residence be forfeited as a penalty herein.        It is the

       position of Mr. Saenz that the forfeiture now sought is unconstitutional

       and, therefore, must be denied. Support for this position is provided in the

       memorandum below.



       {¶12} Although this assignment is worded to include other items, the only issue

via appellant's memorandum contra and the statements and arguments made during

the hearing is the forfeiture of the residence.

       {¶13} R.C. 2981.05(A) authorizes the seizure of property that is subject to

forfeiture under R.C. 2981.02(A) which states the following in pertinent part:



              (A) The following property is subject to forfeiture to the state or a

       political subdivision under either the criminal or delinquency process in

       section 2981.04 of the Revised Code or the civil process in section

       2981.05 of the Revised Code:
Licking County, Case No. 13-CA-70                                                       5


               (3) An instrumentality that is used in or intended to be used in the

        commission or facilitation of any of the following offenses when the use or

        intended use, consistent with division (B) of this section, is sufficient to

        warrant forfeiture under this chapter:

               (a) A felony.



        {¶14} R.C. 2981.02(B) mandates the following:



               (B) In determining whether an alleged instrumentality was used in

        or was intended to be used in the commission or facilitation of an offense

        or an attempt, complicity, or conspiracy to commit an offense in a manner

        sufficient to warrant its forfeiture, the trier of fact shall consider the

        following factors the trier of fact determines are relevant:

               (1) Whether the offense could not have been committed or

        attempted but for the presence of the instrumentality;

               (2) Whether the primary purpose in using the instrumentality was to

        commit or attempt to commit the offense;

               (3) The extent to which the instrumentality furthered the

        commission of, or attempt to commit, the offense.



        {¶15} Forfeiture is restricted to a proportionality test [R.C. 2981.09(A), (C) and

(D)]:
Licking County, Case No. 13-CA-70                                                       6


             (A) Property may not be forfeited as an instrumentality under this

      chapter to the extent that the amount or value of the property is

      disproportionate to the severity of the offense. The owner of the property

      shall have the burden of going forward with the evidence and the burden

      to prove by a preponderance of the evidence that the amount or value of

      the property subject to forfeiture is disproportionate to the severity of the

      offense.

             (C) In determining the severity of the offense for purposes of

      forfeiture of an instrumentality, the court shall consider all relevant factors

      including, but not limited to, the following:

             (1) The seriousness of the offense and its impact on the

      community, including the duration of the activity and the harm caused or

      intended by the person whose property is subject to forfeiture;

             (2) The extent to which the person whose property is subject to

      forfeiture participated in the offense;

             (3) Whether the offense was completed or attempted.

             (D) In determining the value of the property that is an

      instrumentality and that is subject to forfeiture, the court shall consider

      relevant factors including, but not limited to, the following:

             (1) The fair market value of the property;

             (2) The value of the property to the person whose property is

      subject to forfeiture, including hardship to the person or to innocent

      persons if the property were forfeited.
Licking County, Case No. 13-CA-70                                                          7




       {¶16} In its judgment entry filed July 5, 2013, the trial court went into great detail

about its reasoning in ordering the forfeiture:



              By defendant's admission in 2012, he should have generated in

       excess of $38,000.00 of profit from his cultivation operation.            The

       defendant pleaded guilty to a second degree offense of cultivation which

       carries with it a mandatory fine of $7,500.00 and a maximum fine of

       $15,000.

              The defendant was charged and plead guilty to having over 16

       pounds of marijuana in his basement.

              The Court finds that the house at 1158 Louada Drive in Heath, Ohio

       was an instrumentality of the cultivation offense. It was modified to permit

       the growing operation.     It was, by virtue of the crawl space dug out

       underneath the house, that instrumentality that hid the operation from the

       public and provided a safe place in which to conduct the cultivation

       operation. The plumbing system had been modified to provide for the

       cultivation operation and ventilation had been attached to the sewer to

       further hide the operation. The upstairs of the home had extra tubing,

       brand new and never yet used in order to either replace the existing tubing

       or to expand the cultivation operation.      The Court has considered the

       factors set out in State v. Adams, 213-OH-1603, such as whether the

       offense could not have been committed but for the presence of the house,
Licking County, Case No. 13-CA-70                                                      8


      whether the primary purpose in using the offense and the extent to which

      the house furthered the commission of the offense.

             The Court finds the offense could not have been committed without

      the home and the opportunity for the crawl space to have been dug out

      and that this home and crawl space facilitated and furthered the

      commission of the offense. The primary purpose of the home may not

      have been to commit the offense, but given the extent of the income

      generated and the extra equipment in the bedrooms and the bathroom, it

      was becoming the primary purpose of the home. No one else resided

      there other than the defendant.

             Based on the amount of income generated through the sales for

      one year, let alone prior years, and the proportionality of those sales as

      well as the maximum fine of $15,000.00 to the value of the house, the

      Court cannot find that it is disproportionate not to forfeit the home. Earlier

      cases, such as State v. Adams, supra, or State v. Ziepfel, 107 App. 3d

      646 (1995) upheld forfeitures where the proportionate value of sales or

      fines related to the value of the object forfeited were much greater. Other

      cases in Ohio have permitted the forfeiture of homes ranging in values of

      approximately $30,000.00 on the basis of a sale of merely $250. In the

      present case, the defendant was illegally producing 30% of the value of

      the asset annually.

             The Court finds the house was the basis of operations for the

      cultivation operation which was used to conceal his trafficking operations.
Licking County, Case No. 13-CA-70                                                          9


       His home was used as his shop to create the marijuana and was

       obviously the base of operations for the cultivation.



       {¶17} Despite this reasoning, appellant argues the forfeiture of his residence

fails under the "but for" language of R.C. 2981.02(B)(1). Appellant argues there were

many other places to grow marijuana other than the dug out crawl space of his

residence i.e., a backyard, woods, farmers' fields, parks, etc. Appellant's Brief at 11.

       {¶18} Appellant testified the crawl space was originally used for storage, but

after he took ownership of the residence, he ran water pipes to the space to facilitate

cultivation and grew "anything" including marijuana. T. at 28-29. He was experimenting

with "hydroponics." T. at 29. He specifically designed the tubing and piping in the crawl

space to grow marijuana, and he installed a dehumidifier to facilitate the growth of

plants. T. at 33-34, 38.

       {¶19} Appellant had very little means of support in regular employment. T. at

31-33. Appellant admitted his primary source of income was from marijuana that he

grew, and he sold approximately four ounces of marijuana from his plants every week.

T. at 35-37.

       {¶20} In contrast to appellant's testimony, Newark Police Detective George

Romano, Jr. described the crawl space as follows (T. at 44-46):



               The crawl space access was through the master bedroom closet,

       approximately 24-by-24 square, covered with carpet, had its own door.

       When you enter down into the crawl space, the first area that you come to
Licking County, Case No. 13-CA-70                                                    10


      appeared to be what we would call a cutting room, table set up, chairs set

      up where you could harvest the plants, if you will, in a separate area.

             There was additionally five-gallon buckets of soil. It appeared as if

      an expansion process was going on as opposed to a wall, I couldn't say,

      but there was buckets of soil. Looked like they were ready to go back to

      the crawl space and outside.

             There was two or three, depending upon how you looked at it,

      separate grow rooms modified in homemade walls, if you will, 2-by-4

      plywood, styrofoam-type construction with a white plastic covering over

      the ceiling area, if you will, watering system within a hydroponic system.

      He did have a recirculating system more along the lines for the chemicals

      flowing through each of the watering tubes.

             Not all the rooms were tied together, each room kind of controlled

      itself; however, it appeared that the water that was going with the

      chemicals was coming from a water line underneath the house there and

      in a "T"-type fashion.   What also appeared to us is that there was a

      ventilation system to bring the odor and some of the heat off of the grow

      room into the sewer system, so it was tied together in two parts there.

             Approximately a half of the underneath of that had been dug out,

      and the rest of it was traditional crawl space. Several cinder blocks that

      appeared to be originally support structure for the residence had been

      moved and stacked up.       It did look as if there was going to be an

      expansion in that not only with the soil coming out, upstairs there was the
Licking County, Case No. 13-CA-70                                                        11


       master bedroom, two bedrooms and a bathroom all that contained grow

       equipment.    In the current state that the downstairs was, the upstairs

       tubes and the grow equipment was either replacements if something

       broke, or to be used for another operation or an expansion.



       {¶21} Appellant admitted to Detective Romano that he had been growing

marijuana since 2007 and lived on the profits from the growing operation. T. at 48-49.

       {¶22} The trier of fact accepted the description of the residence, the amount of

marijuana seized, and appellant's admissions to the detective. The weight to be given

to the evidence and the credibility of the witnesses are issues for the trier of fact. State

v. Jamison, 49 Ohio St.3d 182 (1990). The trier of fact "has the best opportunity to view

the demeanor, attitude, and credibility of each witness, something that does not

translate well on the written page." Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997-

Ohio-260.

       {¶23} Although appellant argues he could have grown marijuana elsewhere, the

evidence supports the finding that the total manufacture and design of the hidden crawl

space was for appellant's income producing product, marijuana. We find the forfeiture

does not fail the "but for" test. In addition, there is no evidence in the record of the

value of the residence. Appellant's only attempt at valuation was denied by the trial

court via an objection. T. at 42.

       {¶24} Upon review, we find the trial court did not err in ordering the forfeiture of

the residence.

       {¶25} Assignment of Error I is denied.
Licking County, Case No. 13-CA-70                                                      12


                                            II

      {¶26} Appellant claims the forfeiture of his residence was excessive in

proportion to the amount of the mandatory fine. We disagree.

      {¶27} The relevant portions of the proportionality statute, R.C. 2981.09, are cited

above.

      {¶28} Appellant argues the maximum fine was $15,000.00, he was ordered to

pay $7,500.00, and the value of his residence exceeded $100,000.00. However, as

noted above, there is no evidence in the record of the value of the residence. T. at 42.

      {¶29} As explained by our brethren from the Eleventh District in State v. Adams,

11th Dist. Ashtabula No. 2012-A-0025, 2013-Ohio-1603, ¶ 68:



             In determining the proportionality of a forfeiture, many factors have

      been applied.     "[A] lower court's proportionality analysis ' * * * must

      necessarily accommodate the facts of the case and weigh the seriousness

      of the offense, including the moral gravity of the crime measured in terms

      of the magnitude and nature of its harmful reach, against the severity of

      the criminal sanction.' " State v. Scheibelhoffer, 11th Dist. No. 98–L–039,

      1999 Ohio App. LEXIS 3094, *9, 1999 WL 476106 (June 30, 1999),

      quoting Hill at 33–34, 635 N.E.2d 1248.          This same proportionality

      analysis has been applied following the amendment of the forfeiture law in

      2007. See State v. Luong, 12th Dist. No. CA2011–06–110, 2012–Ohio–

      4520, ¶ 53.     Similarly, pursuant to R.C. 2981.09, "[i]n determining the

      severity of the offense for purposes of forfeiture of an instrumentality, the
Licking County, Case No. 13-CA-70                                                      13


      court shall consider all relevant factors including, but not limited to, * * *

      [t]he seriousness of the offense and its impact on the community,

      including the duration of the activity and the harm caused or intended by

      the person whose property is subject to forfeiture; * * * [t]he extent to

      which the person whose property is subject to forfeiture participated in the

      offense;* * * [and] [w]hether the offense was completed or attempted."



      {¶30} It is appellant's burden to establish a disproportionate sentence. R.C.

2981.09(A).   Appellant admitted to Detective Romano that he had been growing

marijuana since 2007, and the cultivation of marijuana was his sole source of income

and support. T. at 48-49.

      {¶31} Upon review, we find nothing in the record to establish a punitive or

disproportionate taking. The only fine imposed was the $7,500.00 mandatory fine.

      {¶32} Assignment of Error II is denied.
Licking County, Case No. 13-CA-70                                            14


      {¶33} The judgment of the Court of Common Pleas of Licking County, Ohio is

hereby affirmed.

By Farmer, J.

Hoffman, P.J. and

Delaney, J. concur.



SGF/sg 303
