[Cite as State v. Hackler, 2014-Ohio-4500.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                      JUDGES:
                                                   Hon. William B. Hoffman, P. J.
        Plaintiff-Appellee                         Hon. W. Scott Gwin, J.
                                                   Hon. John W. Wise, J.
-vs-
                                                   Case No. 14 CA 6
ROBERT A. HACKLER

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 13 CR 334


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         October 9, 2014


APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

KENNETH W. OSWALT                              ANDREW T. SANDERSON
PROSECUTING ATTORNEY                           BURKETT & SANDERSON
JUSTIN T. RADIC                                73 North Sixth Street
ASSISTANT PROSECUTOR                           Newark, Ohio 43055
20 South Second Street, Fourth Floor
Newark, Ohio 43055
Licking County, Case No. 14 CA 6                                                         2

Wise, J.

      {¶1}.   Appellant Robert A. Hackler appeals from the decision of the Court of

Common Pleas, Licking County, which denied his motion to suppress evidence, prior to

a plea of no contest on a charge of felony theft. The relevant facts leading to this appeal

are as follows.

      {¶2}.   On May 24, 2013, Officer Jason Bowman of the Johnstown Police

Department was dispatched to investigate a complaint of theft of items from a van

parked at a local Kroger grocery store. Upon his arrival, Officer Bowman was informed

that tools had been stolen from inside the vehicle. The officer obtained a description of

the missing tools, and spoke to a witness who had seen the vehicle used by the

perpetrator.1 The suspect vehicle in question was described as a red vehicle with a

white convertible top, being driven by a white male. According to Officer Bowman, the

witness further indicated the suspect vehicle was "probably [a] late 80's, early 90's,

possibly a Mustang." Suppression Hearing, August 19, 2013, at 7.

      {¶3}.   Officer Bowman then issued a "be on the lookout" message for the

suspect vehicle. A second police officer thereupon located a vehicle similar to the

aforesaid description at a Sunoco gas station approximately one mile away from the

Kroger store. Officer Bowman began heading toward the Sunoco station. At about this

point in time, the second officer sent a radio message indicating that the suspect vehicle

had left the gas station. Officer Bowman then saw a vehicle "approaching me that

appeared to be red with a white top coming at a high rate of speed." Tr. at 8. Bowman



1
   The suppression transcript testimony is unspecific as to the name of the witness. It
appears from other parts of the record that two men using the van were at the scene,
perhaps a driver and a passenger. The witness was one of these two individuals.
Licking County, Case No. 14 CA 6                                                        3


thereupon effectuated a traffic stop on the vehicle, which ended up near the original

Kroger parking lot.

      {¶4}.   Appellant was found to be the driver of the red convertible, a Chrysler

Sebring. Appellant did not have a current driver's license and was apparently under

limited driving privileges. Tr. at 9. He "quickly became argumentative, was nervous,

[and] wanted to get out of there very quickly." Id. Appellant was briefly detained in the

second officer's patrol car. The witness at the scene identified the red Chrysler as the

one he had seen previously. At some point, Officer Bowman was advised that the

witness might be able to identify the driver of the suspect car. The witness, upon looking

at the identification card Bowman had obtained from appellant, indicated that the

photograph matched his recollection of the car driver's face. See Tr. at 13-14.

      {¶5}.   Appellant was subsequently placed under arrest. A search of appellant's

vehicle resulted in the discovery of the missing tools.

      {¶6}.   On June 6, 2013, appellant was indicted on one count of theft, R.C.

2913.02(A)(1), a felony of the fifth degree. The indictment also contained a forfeiture

specification pursuant to R.C. 2941.1417 and R.C. 2981.02.

      {¶7}.   On June 6, 2013, appellant filed a motion to release the seized vehicle.

Following a hearing on June 24, 2013, the trial court denied appellant's request.

      {¶8}.   On June 25, 2013, appellant filed a "Motion to Suppress Evidence and

Identification." The State filed a response on June 28, 2013. Appellant filed a

supplemental memorandum in support of the suppression motion on July 2, 2013. In

said supplemental memorandum in support of his motion to suppress, appellant raised
Licking County, Case No. 14 CA 6                                                        4


another issue seeking to suppress statements made by appellant at the police station

after his arrest.

      {¶9}.    On August 19, 2013, appellant appeared with counsel before the trial court

for the hearing on appellant's motion to suppress.

      {¶10}. On August 27, 2013, the court issued a four-page written decision denying

appellant's motion.

      {¶11}. Appellant appeared before the trial court on September 24, 2013, and

entered a plea of no contest to the charge contained in the indictment. Appellant was

thereafter sentenced to a term of nine months in prison. The trial court also ordered the

forfeiture of the motor vehicle that was subject to the specification contained in the

indictment.

      {¶12}. Appellant filed a notice of appeal on January 31, 2014. He herein raises

the following three Assignments of Error:

      {¶13}. “I. THE TRIAL COURT COMMITTED HARMFUL ERROR IN DENYING

THE DEFENDANT-APPELLANT'S MOTION TO SUPPRESS EVIDENCE.

      {¶14}. “II. THE TRIAL COURT COMMITTED HARMFUL ERROR IN ORDERING

THE FORFEITURE OF THE MOTOR VEHICLE SUBJECT TO THE SAME WITHOUT

DETERMINING THE CONSTITUTIONALITY OF THE PENALTY IMPOSED.

      {¶15}. “III. THE DEFENDANT-APPELLANT WAS DENIED THE EFFECTIVE

ASSISTANCE OF TRIAL COUNSEL HEREIN.“

                                               I.

      {¶16}. In his First Assignment of Error, appellant contends the trial court erred in

failing to grant his motion to suppress evidence. We disagree.
Licking County, Case No. 14 CA 6                                                            5


      {¶17}. The Fourth Amendment to the United States Constitution and Section 14,

Article I, Ohio Constitution, prohibit the government from conducting unreasonable

searches and seizures of persons or their property. See Terry v. Ohio (1968), 392 U.S.

1, 88 S.Ct. 1868, 20 L.Ed.2d 889; State v. Andrews (1991), 57 Ohio St.3d 86, 87, 565

N.E.2d 1271.

      {¶18}. Generally, there are three methods of challenging on appeal a trial court's

ruling on a motion to suppress. First, an appellant may challenge the trial court's finding

of fact. Second, an appellant may argue the trial court failed to apply the appropriate

test or correct law to the findings of fact. Finally, an appellant may argue the trial court

has incorrectly decided the ultimate or final issue raised in the motion to suppress.

When reviewing this third type of claim, an appellate court must independently

determine, without deference to the trial court's conclusion, whether the facts meet the

appropriate legal standard in the given case. State v. Curry (1994), 95 Ohio App.3d 93,

96, 641 N.E.2d 1172; State v. Claytor (1993), 85 Ohio App.3d 623, 627, 620 N.E.2d

906; State v. Guysinger (1993), 86 Ohio App.3d 592, 621 N.E.2d 726. The United

States Supreme Court, in Ornelas v. U.S. (1996), 517 U.S. 690, 116 S.Ct. 1657, 1663,

134 L.Ed.2d 911, held that “... as a general matter determinations of reasonable

suspicion and probable cause should be reviewed de novo on appeal.”

      {¶19}. Appellant herein first challenges the trial court's factual findings that (1) the

witness saw a car "leaving quickly," (2) "noticed the van doors were open and the tools

were missing" and thus (3) "immediately called the police department." Judgment Entry,

August 27, 2013, at 1. It has been aptly recognized that "[b]ecause the trial court acts as

the trier of fact in suppression hearings and is in the best position to resolve factual
Licking County, Case No. 14 CA 6                                                          6


issues and evaluate the credibility of witnesses, an appellate court must accept the trial

court's findings of fact if they are supported by competent, credible evidence." State v.

Shrewsbury, 4th Dist. No. 13CA3402, 2014-Ohio-716, ¶ 11, citing State v. Burnside,

100 Ohio St.3d 152, 797 N.E.2d 71, 2003–Ohio–5372, ¶ 8. Appellant herein urges that

Officer Bowman (the only witness at the suppression hearing) did not provide testimony

which could lead to these factual conclusions. However, we find the limited weight of the

aforesaid facts in a suppression analysis would lead only to a determination of harmless

error.

         {¶20}. Appellant secondly argues that because the trial court's entry "cites no

legal authority or precedent in support of its denial of the [appellant's] motion to

suppress," it failed to apply the proper legal standard to the issues before the court and

thus "lost its way." Appellant's Brief at 7. We certainly recognize that Crim.R. 12(F)

states “[w]here factual issues are involved in determining a motion, the court shall state

its essential findings on the record.” However, we are not persuaded that the trial court

improperly curtailed its application of legal analysis in reaching its decision denying

suppression in the case sub judice.

         {¶21}. Appellant finally argues the trial court incorrectly decided the ultimate

issue raised in his motion to suppress, specifically as to the initial stop of appellant and

the subsequent follow-up detention by Officer Bowman and the assisting officer.

         {¶22}. We are compelled at this juncture to note that appellant's motion to

suppress and supplemental memorandum before the trial court were limited to issues of

the allegedly suggestive witness identification of appellant, the obtaining of items from

appellant's vehicle without a search warrant, and statements made by appellant at the
Licking County, Case No. 14 CA 6                                                          7


police station after his arrest. This Court has recognized that the State's burden of proof

in a motion to suppress hearing is limited to those contentions that are asserted with

sufficient particularity to place the prosecutor and court on notice of the issues to be

decided. Johnstown v. Jugan (Apr. 24, 1996), Licking App. No. 95CA90, 1996 WL

243805. The Ohio Supreme Court has further concluded that the failure of the

defendant to adequately raise the basis of his or her challenge constitutes a waiver of

that issue on appeal. See City of Xenia v. Wallace (1988), 37 Ohio St.3d 216, 218-219,

524 N.E.2d 889.

      {¶23}. Appellant's focus on appeal is thus on the pre-arrest stage of the events in

question, whereas the emphasis in the trial court was almost exclusively on the post-

arrest stage, save for the issue of the victim's identification of appellant via Officer

Bowman's use of the photograph on appellant's identification card. However, while the

issue of a suggestive identification could be a part of the analysis of the pre-arrest

detention of appellant after the traffic stop, we find appellant's present reliance on State

v. Harris, 2nd Dist. Montgomery No. 14111, 1994 WL 191403, State v. Knight, 5th Dist.

Licking No. 04CA24, 2004-Ohio-7274, and State v. Wheat, 5th Dist. Licking No.

02CA97, 2003-Ohio-1147, while well presented, sheds little light on that specific

question. Furthermore, the issue of the propriety of Officer's Bowman's warrantless

search of the trunk of appellant's Chrysler is not emphasized as part of the arguments in

appellant's brief. See Brief at 9.

      {¶24}. As such, we find the waiver doctrine applies against the remainder of

appellant's assigned error under the circumstances presented.

      {¶25}. Accordingly, appellant's First Assignment of Error is overruled.
Licking County, Case No. 14 CA 6                                                             8


                                                  II.

      {¶26}. In his Second Assignment of Error, appellant challenges the trial court's

order of forfeiture of his Chrysler automobile.

      {¶27}. In Ohio, forfeitures are generally not favored in law or equity. State v.

Johns (1993), 90 Ohio App.3d 456, 459, 629 N.E.2d 1069, citing State v. Lilliock (1982),

70 Ohio St.2d 23, 25, 434 N.E.2d 723. Whenever possible, statutes imposing

restrictions upon the use of private property, in derogation of private property rights,

“must be construed as to avoid a forfeiture of property.” Lilliock at 26, 434 N.E.2d 723,

citing State ex rel. Jones v. Board of Deputy State Supervisors and Inspectors of

Elections (1915), 93 Ohio St. 14, 16, 112 N.E. 136.

      {¶28}. R.C. 2981.02(B) states as follows:

      {¶29}. "(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:

      {¶30}. "(1) Whether the offense could not have been committed or attempted but

      for the presence of the instrumentality;

      {¶31}. "(2) Whether the primary purpose in using the instrumentality was to

      commit or attempt to commit the offense;

      {¶32}. "(3) The extent to which the instrumentality furthered the commission of,

      or attempt to commit, the offense."
Licking County, Case No. 14 CA 6                                                        9


      {¶33}. R.C. 2981.09(A), (C), and (D) set forth a proportionality test in forfeiture

cases. Furthermore, under R.C. 2981.09(A), "*** [t]he 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 the

forfeiture is disproportionate to the severity of the offense."

      {¶34}. We have previously held that "[t]he 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 Co. No. 06-CA-142, 2007-Ohio-2623, ¶12 (analyzing

former R.C. 2925.42). In the case sub judice, although appellant unsuccessfully sought

a “release” of the vehicle prior to trial, he later entered a plea and agreed to the

forfeiture both orally and in writing.2    As such, appellant's attempt to challenge the

forfeiture in the present appeal is not well-taken.

      {¶35}. Appellant's Second Assignment of Error is therefore overruled.

                                              III.

      {¶36}. In his Third Assignment of Error, appellant contends he was deprived of

the effective assistance of counsel where his trial attorney did not request a hearing on

the issue of the constitutionality of the forfeiture of his automobile.

      {¶37}. In her concurring opinion in State v. Meeks, 11th Dist. Lake No. 2011-L-

066, 2012-Ohio-4098, a case likewise involving forfeiture under R.C. Chapter 2981,

Judge Grendell of the Eleventh District Court of Appeals recognized that "[t]he right to

effective assistance of counsel derives from the Sixth Amendment right 'to have the



2
   Interestingly, the attorney representing appellant at sentencing informed the court, at
the end of the hearing, that “it wasn’t my request to grant” forfeiture. See Sentencing
Hearing Tr. at 11.
Licking County, Case No. 14 CA 6                                                       10

Assistance of Counsel.' ” Id. at ¶ 57, citing McMann v. Richardson, 397 U.S. 759, 771,

fn. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). Judge Grendell further noted that the

protections provided by the Sixth Amendment are explicitly confined to criminal

prosecutions. See id., quoting Austin v. United States, 509 U.S. 602, 608, 113 S.Ct.

2801, 125 L.Ed.2d 488 (1993). Thus, "[g]iven that the penalty of forfeiture is 'civil in

form,' [defendant] was not entitled to have the assistance of counsel." Id. at ¶ 58.

      {¶38}. We herein agree with the rationale of the concurrence in Meeks and

therefore decline to engage in an analysis of ineffective assistance of counsel regarding

the remedy of forfeiture within the present criminal case.

      {¶39}. Appellant’s Third Assignment of Error is overruled.

      {¶40}. For the foregoing reasons, the judgment of the Court of Common Pleas,

Licking County, Ohio, is hereby affirmed.


By: Wise, J.

Hoffman, P. J., and

Gwin, J., concur.




JWW/d 1002
Licking County, Case No. 14 CA 6   11
