      [Cite as State v. Griffin, 2020-Ohio-3707.]

                        IN THE COURT OF APPEALS
               FIRST APPELLATE DISTRICT OF OHIO
                          HAMILTON COUNTY, OHIO




STATE OF OHIO,                                      :   APPEAL NO. C-190369
                                                        TRIAL NO. 18CRB-29119A
      Plaintiff-Appellee,                           :

      vs.                                           :
                                                          O P I N I O N.
TERRY LEE GRIFFIN,                                  :

      Defendant-Appellant.                          :




Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
                           Remanded

Date of Judgment Entry on Appeal: July 15, 2020




Paula Boggs Muething, City Solicitor, William T. Horsley, Chief Prosecuting
Attorney, and Jon Vogt, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and David Hoffman,
Assistant Pubilc Defender, for Defendant-Appellant.
                      OHIO FIRST DISTRICT COURT OF APPEALS




CROUSE, Judge.

       {¶1}    Defendant-appellant Terry Lee Griffin was charged with improperly

handling a firearm in a motor vehicle in violation of R.C. 2923.16(E)(1). After a two-

day bench trial, he was found guilty, sentenced to 180 days in jail, and ordered to pay

a $100 fine and court costs. The court suspended the sentence and placed Griffin on

probation for one year. The court also ordered that two handguns seized from him

during the arrest be forfeited.

       {¶2}    Griffin has appealed, arguing in four assignments of error that: (1) his

conviction was based on insufficient evidence and was against the manifest weight of

the evidence; (2) the trial court erred in sentencing him for a first-degree

misdemeanor rather than a minor misdemeanor; (3) the trial court erred in forfeiting

the handguns that were confiscated from him at the time of his arrest; and (4) R.C.

2923.16(E)(1) is unconstitutionally vague and violates Article I, Section 16 of the

Ohio Constitution, and the Due Process Clause in the Fourteenth Amendment to the

United States Constitution.

       {¶3}    For the following reasons, we sustain Griffin’s third assignment of

error as to the Springfield firearm, but overrule it as to the Kel-Tek firearm. We

overrule all other assignments of error and affirm the judgment of the trial court in

all other respects.

                                  Factual Background


       {¶4}    This case arose out of a traffic stop that took place on November 6,

2018. Ohio Highway State Trooper Matthew Allard arrested Griffin for failing to




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                     OHIO FIRST DISTRICT COURT OF APPEALS



promptly inform Allard of his concealed handgun license (“CHL”) and that he had

two loaded firearms in the car.

       {¶5}   Allard testified that he was on patrol as a member of the “Violent

Crimes Squad” along with several Cincinnati police officers. Allard testified that he

was instructed by officers in an unmarked police car to pull Griffin over for excessive

window tint. When Allard approached Griffin’s driver’s side window, he explained

the reason for the stop and asked for his identification. Griffin opened his wallet and

gave Allard his driver’s license. Allard testified that he looked inside the car and saw

what he believed to be a CHL in Griffin’s wallet. He asked Griffin if he had a CHL,

and Griffin replied, “Yes.” He then asked Griffin where the firearm was located, and

Griffin told him that it was in between the center console and the driver’s seat (the

Springfield firearm). Allard testified that when he asked Griffin why he did not

immediately inform him of his CHL and the firearm, Griffin said, “Oh, I forgot.”

       {¶6}   Allard testified that he was not sure exactly how much time had passed

from the moment he approached the window to the moment Griffin informed him of

his CHL and the firearm. He claimed that Griffin had time to notify him about his

CHL and the firearm either after Allard informed him of the reason for the stop, or

when Griffin retrieved his identification and handed it to Allard.

       {¶7}   Allard testified that when he ordered Griffin out of the car, he asked if

there was anything else in the car, and Griffin said, “No.” He testified that it was not

until he placed Griffin in handcuffs and walked him to the back of the car that Griffin

informed him that there was another firearm (the Kel-Tek) in the car.

       {¶8}   Griffin testified that when Allard approached his window, he had his

identification and insurance card already in his hand. Griffin claimed that he thought




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                     OHIO FIRST DISTRICT COURT OF APPEALS



that he had his CHL in his hand as well, but it was in his wallet, “open in plain view

where [Allard] could see it.” Griffin testified that Allard asked about firearms “not

even two seconds” after he walked up to the window. Griffin testified that through

his CHL training he was aware that he was required to disclose the presence of all

firearms in the vehicle if pulled over by law enforcement. He admitted that at first he

only disclosed the Springfield firearm. He testified that he did not initially disclose

the Kel-Tek because it was not his and he forgot that it was in the car.

       {¶9}   Video from Allard’s police cruiser camera, which showed his

interaction with Griffin, was admitted into evidence. No body camera video or audio

of the interaction was admitted.

       {¶10} A review of the cruiser camera video shows that at two minutes into

the video, Allard approached Griffin’s driver’s side window. Allard appeared to take

something in his hand at 2:06 and look down at it. He looked back in the car and

appeared to continue talking with Griffin.         At 2:18, Allard appeared to take

something else in his hand and look down at it. He stood by Griffin’s car, alternating

between talking on his radio and talking to Griffin. At 3:15, Allard removed Griffin

from the car and placed him under arrest.

                            First Assignment of Error


       {¶11} In his first assignment of error, Griffin argues that his conviction was

not supported by sufficient evidence and was against the manifest weight of the

evidence.

       {¶12} The test for determining if the evidence was sufficient to sustain a

conviction is whether, “after viewing the probative evidence and inferences

reasonably drawn therefrom in the light most favorable to the prosecution, any


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                      OHIO FIRST DISTRICT COURT OF APPEALS



rational trier of fact could have found all the essential elements of the offense beyond

a reasonable doubt.” State v. MacDonald, 1st Dist. Hamilton No. C-180310, 2019-

Ohio-3595, ¶ 12, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717

(1st Dist.1983). It is a question of law for the court to determine, the court is not to

weigh the evidence. MacDonald at ¶ 12.

       {¶13} As relevant, R.C. 2923.16(E)(1) provides that no person who has been

issued a CHL that is the driver or occupant of a vehicle stopped as a result of a traffic

stop shall:

      Fail to promptly inform any law enforcement officer who approaches the

      vehicle while stopped that the person has been issued a concealed

      handgun license * * * and that the person then possesses or has a loaded

      handgun in the motor vehicle.

We note that it is undisputed that the handguns recovered from Griffin’s car were

loaded.

       {¶14} The first issue we must determine is the appropriate culpable mental

state, the “mens rea.”    R.C. 2923.16(E) provides five routes for a conviction of

improperly handling firearms in a motor vehicle.         Those routes are laid out in

subsections (1) through (5). A conviction under R.C. 2923.16(E)(1) does not require

a specified mens rea. Rather, the legislature only specified a mens rea in subsections

(E)(3)-(5).

       {¶15} The state argues that this is a strict liability offense and there is no

culpable mental state. Griffin argues that the mens rea is recklessness.

       {¶16} In State v. Johnson, 128 Ohio St.3d 107, 2010-Ohio-6301, 942 N.E.2d

347, ¶ 20-38, the Ohio Supreme Court analyzed three categories of offenses in order




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                       OHIO FIRST DISTRICT COURT OF APPEALS



to determine whether the statute in question imposed strict liability or required a

mental state of recklessness. The court emphasized that “strict liability for an offense

is the exception to the rule.” Id. at ¶ 18.

       {¶17} For the first category of offenses, the court examined R.C. 2901.21(B),

and held that an offense is a strict liability offense when the section defining the

offense does not specify a mens rea and also plainly indicates a purpose to impose

strict liability. Id. at ¶ 19. However, when the section defining the offense does not

specify a mens rea and the section does not plainly indicate an intent to impose strict

liability, then the default mens rea of recklessness must be imposed. Id. at ¶ 19-24,

discussing State v. Adams 62 Ohio St.2d 151, 152-153, 404 N.E.2d 144 (1980)

(interpreting the endangering-children statute, former R.C. 2919.22(B)(2), as

requiring a mens rea of recklessness), and State v. Wharf, 86 Ohio St.3d 375, 377,

715 N.E.2d 172 (1999) (interpreting second-degree robbery, as defined in R.C.

2911.02(A)(1), to be a strict liability offense).

       {¶18} In the second category of offenses, the statutes have “specified a mens

rea in one discrete clause or subsection of a section defining the offense, but not in

another clause or subsection.” Johnson at ¶ 26, 27-30 (citing as an example R.C.

2915.03, the offense of operating a gambling house). In determining legislative

intent, courts are required “to examine the entire section defining the offense, not

merely a clause or subsection.” Id. at ¶ 31.

       {¶19} In a third category offenses, the statutes “include a mens rea for one

element but not for other elements in the section defining the offense.” (Emphasis in

original.) Id. at ¶ 38. In this category, “if the General Assembly intends for the

additional elements to carry their own mens rea, they must say so. Otherwise, no




                                                    6
                      OHIO FIRST DISTRICT COURT OF APPEALS



culpable mental state needs to be proved for those elements.” Id. The Johnson court

found that R.C. 2923.13(A)(3), having a weapon while under disability, fell under

this third category of offenses. See id. at ¶ 42.

       {¶20} The state argues that R.C. 2923.16(E)(1) falls within the third category

of offenses and strict liability is the proper mens rea for the elements for which a

mens rea is not specified by the legislature. Griffin argues that R.C. 2923.16(E)(1)

falls within the first category of offenses that requires the mental state of

recklessness to be imposed.

       {¶21} We find that R.C. 2923.16(E)(1) falls within the second category of

offenses discussed in Johnson. In Johnson, the court examined R.C. 2915.03, the

offense of operating a gambling house, which states:

      (A) No person, being the owner or lessee, or having custody, control, or

      supervision of premises, shall:

      (1) Use or occupy such premises for gambling in violation of section

      2915.02 of the Revised Code;

      (2) Recklessly permit such premises to be used or occupied for gambling

      in violation of 2915.02 of the Revised Code.

Johnson, 128 Ohio St.3d 107, 2010-Ohio-6301, 942 N.E.2d 347, at ¶ 27-29.

       {¶22} The court pointed to its prior case, State v. Wac, 68 Ohio St.2d 84, 428

N.E.2d 428 (1981), where it held that “[b]ecause the General Assembly specified the

mental state of recklessly in subsection (A)(2) but did not specify a mens rea for

subsection (A)(1), * * * the missing mens rea in (A)(1) was a plain indication of a

purpose to impose strict criminal liability for a violation of R.C. 2915.03(A)(1).”

Johnson at ¶ 30.




                                                7
               OHIO FIRST DISTRICT COURT OF APPEALS



 {¶23} R.C. 2923.16(E) is similarly constructed. It states in pertinent part:

(E) No person who has been issued a concealed handgun license * * * who

is the driver or an occupant of a motor vehicle that is stopped as a result

of a traffic stop * * * and who is transporting or has a loaded handgun in

the motor vehicle * * * in any manner, shall do any of the following:

(1) Fail to promptly inform any law enforcement officer who approaches

the vehicle while stopped that the person has been issued a concealed

handgun license * * * and that the person then possesses or has a loaded

handgun in the motor vehicle;

(2) Fail to promptly inform the employee of the unit who approaches the

vehicle while stopped that the person has been issued a concealed

handgun license * * * and that the person then possesses or has a loaded

handgun in the commercial motor vehicle;

(3) Knowingly fail to remain in the motor vehicle while stopped or

knowingly fail to keep the person’s hands in plain sight at any time after

any law enforcement officer begins approaching the person while stopped

and before the law enforcement officer leaves, unless the failure is

pursuant to and in accordance with directions given by a law enforcement

officer;

(4) Knowingly have contact with the loaded handgun by touching it with

the person’s hands or fingers in the motor vehicle at any time after the

law enforcement officer begins approaching and before the law

enforcement officer leaves, unless the person has contact with the loaded




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                     OHIO FIRST DISTRICT COURT OF APPEALS



     handgun pursuant to and in accordance with directions given by the law

     enforcement officer;

     (5) Knowingly disregard or fail to comply with any lawful order of any law

     enforcement officer given while the motor vehicle is stopped, including,

     but not limited to, a specific order to the person to keep the person’s

     hands in plain sight.

       {¶24} The General Assembly specified the mental state of knowingly in

subsections (E)(3)-(5), but did not specify a mens rea for subsections (E)(1) and (2).

Statutes that fall under the third category of offenses require that the state prove a

specified mens rea in order to achieve any conviction under that statute. See R.C.

2923.13 (state must prove that the offender knowingly acquired, had, carried, or used

a firearm or dangerous ordnance in order to achieve a conviction). In contrast, for

statutes that fall under the second category of offenses, the state can achieve a

conviction under one subsection without proving a specified mens rea, but in order

to achieve a conviction under another subsection, the state must prove a specified

mens rea. See Wac, 68 Ohio St.2d at 87, 428 N.E.2d 428 (finding that the state is

not required to prove a mens rea to achieve a conviction under R.C. 2915.03(A)(1),

but must prove recklessness under subsection (A)(2)).

       {¶25} Accordingly, pursuant to Johnson, we find that the missing mens rea

in (E)(1) was a plain indication of a purpose to impose strict criminal liability for a

violation of R.C. 2923.16(E)(1).

       {¶26} Next, we turn our attention to how to interpret “promptly inform.”

Griffin argues that his conviction is not supported by sufficient evidence because

only seconds had passed before Allard learned of the CHL and because his failure to




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                     OHIO FIRST DISTRICT COURT OF APPEALS



hand Allard the CHL was an accident. Griffin makes no argument on appeal

regarding his delay in notifying the officer about both loaded firearms. At trial, his

explanation for failing to inform Allard about the firearms was that he forgot.

       {¶27} In State v. Brown, 168 Ohio App.3d 314, 2006-Ohio-4174, 859 N.E.2d

1017, ¶ 23 (11th Dist.), the defendant challenged former R.C. 2923.16(E)(3) (now

(E)(1)) as unconstitutionally vague. Citing Black’s Law Dictionary, the Eleventh

District determined that to do something “promptly” is to do it “without delay and

with reasonable speed.” Id. Therefore, a person of common intelligence would

readily understand “promptly inform” as requiring the CHL holder to inform the

officer about the firearm “as soon as possible.” Id.; see State v. Loyd, 2018-Ohio-

4320, 121 N.E.3d 840, ¶ 22, 27 (5th Dist.) (the court adopted the analysis and

rationale of Brown, and overruled the defendant’s sufficiency and manifest-weight

challenges of his conviction under R.C. 2923.16(E)(1) for failing to promptly inform

the officer of his CHL and the presence of a firearm in the vehicle).

       {¶28} The duty to “promptly inform” is for officer safety, so that during an

interaction between an officer and a CHL holder, the officer is aware that there is a

loaded firearm in the vehicle. Brown at ¶ 19. Allard testified that Griffin did not

inform him of his CHL until after Allard explained the reason for the stop, Griffin

handed him his identification, and Allard saw what be believed to be a CHL card in

his wallet. It is undisputed that Griffin did not inform Allard of his CHL or the

firearms until Allard asked about them. Griffin did not inform Allard of the

Springfield, which was tucked in between the driver’s seat and the center console,

until Allard asked him where the firearm was located. Furthermore, Griffin did not




                                              10
                      OHIO FIRST DISTRICT COURT OF APPEALS



inform Allard of the second firearm, the Kel-Tek, until he was removed from the car

and placed under arrest and Allard asked him if there was anything else in the car.

       {¶29} Considering the evidence in the light most favorable to the

prosecution, there was sufficient evidence presented that Griffin’s notification of his

CHL and the loaded firearms was not “as soon as possible” and did not meet the

standard of informing “without delay and with reasonable speed.” See Brown at ¶

23. Therefore, the evidence was sufficient to sustain the conviction.

       {¶30} Having determined that there was sufficient evidence presented to

sustain the conviction, we consider Griffin’s claim that his conviction was against the

manifest weight of the evidence. In doing so, we review the record, weigh the

evidence and all reasonable inferences, consider the credibility of the witnesses, and

determine whether the trier of fact, in resolving conflicts in the evidence, “clearly lost

its way and created such a manifest miscarriage of justice that the conviction must be

reversed.” Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. Reversal of a conviction

and a grant of a new trial should only be done in “exceptional cases in which the

evidence weighs heavily against the conviction.” Id.

       {¶31} After a thorough review of the record, we find that this is not an

exceptional case in which the evidence weighs heavily against the conviction. The

trial court did not clearly lose its way and create a manifest miscarriage of justice.

Accordingly, Griffin’s conviction was not against the manifest weight of the evidence.

The first assignment of error is overruled.




                                               11
                      OHIO FIRST DISTRICT COURT OF APPEALS



                           Second Assignment of Error

       {¶32} In his second assignment of error, Griffin argues that the trial court

erred when it sentenced him for a first-degree misdemeanor and not a minor

misdemeanor.

       {¶33} A conviction under R.C. 2923.16(E)(1) is by default a first-degree

misdemeanor. R.C. 2923.16(I). But, if:

      at the time of the stop of the offender for a traffic stop * * * any law

      enforcement officer involved with the stop * * * had actual knowledge of

      the offender’s status as a licensee, a violation of division (E)(1) or (2) of

      this section is a minor misdemeanor.

Id.

       {¶34} R.C. 2923.16(I) is written more broadly than R.C. 2923.16(E)(1), which

proscribes a failure to promptly inform any officer who “approaches the vehicle.”

R.C. 2923.16(I) refers to any officer “involved with the stop,” and clearly

contemplates a greater number of officers who might know of the offender’s status as

a CHL holder than just the officer who approaches the offender’s vehicle.

       {¶35} Griffin argues that because Cincinnati Police Officer Kenny Dotson

was “involved with the stop” and had actual knowledge of his status as a CHL

licensee, the trial court should have determined that the offense was a minor

misdemeanor.

       {¶36} Dotson testified that he was a member of the “Violent Crimes Squad”

and ordered Allard to pull Griffin over for a tinted window violation. He testified

that he did not arrive “on scene” until Griffin was in handcuffs and in the back of

Allard’s cruiser. He claimed that “after later review” he remembered that he had




                                               12
                      OHIO FIRST DISTRICT COURT OF APPEALS



pulled Griffin over approximately nine months prior.             During the previous

encounter, Griffin was driving the same vehicle and informed Dotson that he

possessed a CHL.

       {¶37} Allard testified that at the time of the stop he did not know that Dotson

was familiar with Griffin and had pulled him over in the past.

       {¶38} We review misdemeanor sentences with considerable deference and

apply an abuse-of-discretion standard of review. See State v. Frazier, 158 Ohio

App.3d 407, 2004-Ohio-4506, 815 N.E.2d 1155, ¶ 15 (1st Dist.) (where a

misdemeanor sentence is within the statutory limits, the trial court is presumed to

have considered the required sentencing factors, absent a showing to the contrary by

the defendant); see also State v. Femuels, 1st Dist. Hamilton No. C-190486, 2020-

Ohio-2926, ¶ 34. An abuse of discretion means more than a mere error of law or

judgment; it implies that the trial court’s decision was unreasonable, arbitrary, or

unconscionable. Frazier at ¶ 15.

       {¶39} The burden of persuasion to demonstrate a mitigating factor in

sentencing is on the defendant. See State v. Rhodes, 63 Ohio St.3d 613, 590 N.E.2d

261 (1992), syllabus; State v. Duncan, 154 Ohio App.3d 254, 2003-Ohio-4695, 796

N.E.2d 1006, ¶ 27 (1st Dist.). The standard is a preponderance of the evidence.

Rhodes at syllabus.

       {¶40} The trial court rejected Griffin’s mitigation argument, stating,

     With regards to your suggestion, this is really a minor misdemeanor. I’m

     really not moved on that.        The arresting trooper, Allard, had no

     knowledge of whether or not your client was licensed or not, and any




                                             13
                      OHIO FIRST DISTRICT COURT OF APPEALS



     attempt to impute any information from the other officers to this trooper,

     there’s no evidence of that either. So based on that the finding is guilty.

       {¶41} Griffin argues that the trial court abused its discretion in finding that

there was no evidence presented to support his argument that the offense should be a

minor misdemeanor. Griffin contends that even though Dotson did not arrive on the

scene until after Griffin was placed in handcuffs, his general involvement in the stop

and knowledge that Griffin had a CHL at the time of the previous stop proves the

mitigating elements by a preponderance of the evidence.

       {¶42} We agree that Griffin proved by a preponderance of the evidence that

Dotson was “involved with the stop.” However, Griffin did not prove that Dotson had

“actual knowledge of [Griffin’s] status as a licensee.”

       {¶43} First, simply because Griffin may have had a valid CHL nine months

earlier, does not mean he still had a valid CHL at the time of the stop.

       {¶44} Second, we must remember that the purpose of R.C. 2923.16(E)(1) is

for officer safety. Thus, the timing of when an officer “involved with the stop”

realizes, i.e., has “actual knowledge,” that the offender has a valid CHL is important.

Griffin was driving a car registered in his wife’s name. Dotson ordered him to be

pulled over for a tinted window violation. See R.C. 4513.241 (prohibiting the tinted

glass from preventing a person from seeing inside of the car). There was no

testimony presented that Dotson knew that Griffin was driving the car when he

ordered the car to be pulled over. It was not until after Allard approached the vehicle

and Griffin was in handcuffs that Dotson encountered Griffin and remembered their

interaction nine months earlier. Thus, there was no evidence that Dotson could have




                                               14
                      OHIO FIRST DISTRICT COURT OF APPEALS



made Allard aware that Griffin had a valid CHL before Allard approached the vehicle

and potentially put himself in danger.

       {¶45}    Accordingly, we hold that the trial court did not abuse its discretion

in holding that Griffin had failed to prove that R.C. 2923.16(I) was applicable.

Griffin’s second assignment of error is overruled.

                            Third Assignment of Error

       {¶46} In his third assignment of error, Griffin argues that the trial court

erred in forfeiting the two firearms.

       {¶47} R.C. 2981.04 permits the state to seek forfeiture of a defendant’s

property as part of a criminal sentence. R.C. 2981.04(A) requires that the complaint

contain a forfeiture specification, or if forfeiture is not reasonably foreseeable at the

time the complaint is filed, that a forfeiture specification be provided in a Crim.R.

7(E) bill of particulars. Forfeiture may also be pursued through a civil action under

R.C. 2981.05.

       {¶48} The firearms were ordered forfeited as part of Griffin’s criminal

sentence. Griffin argues that the state’s failure to comply with R.C. 2981.04(A)

renders the forfeitures improper. The state agrees that it did not comply with R.C.

2981.04(A), and concedes that the trial court erred in forfeiting the Springfield. But,

the state argues that Griffin does not have standing to challenge the forfeiture of the

Kel-Tek since he denied ownership of it.

       {¶49} The state did not raise the issue of standing before the trial court. In a

civil forfeiture action, standing is jurisdictional and may be raised at any time. In re

$75,000.00 U.S. Currency, 2017-Ohio-9158, 101 N.E.3d 1209, ¶ 45 (8th Dist.); State




                                               15
                      OHIO FIRST DISTRICT COURT OF APPEALS



v. Langston, 6th Dist. No. L-12-1014, 2012-Ohio-6249, ¶ 7. We hold that standing in

a criminal forfeiture is also jurisdictional and may be raised at any time.

       {¶50} Standing is “a party’s right to make a legal claim or seek judicial

enforcement of a duty or right.” In re $449 U.S. Currency, 1st Dist. Hamilton No. C-

110176, 2012-Ohio-1701, ¶ 24, quoting Black’s Law Dictionary 1442 (8th Ed.2004).

The party must have “some real interest in the subject matter of the action.” In re

$449 at ¶ 24, quoting State ex rel. Dallman v. Court of Common Pleas, 35 Ohio St.2d

176, 298 N.E.2d 515 (1973), syllabus.

       {¶51} Griffin testified that the Kel-Tek was not his, that he had found it in his

car while he was cleaning one day, and then had forgotten that it was in there. He

testified that he did not know where it came from, but offered, “I give people rides

and stuff.” Griffin cites In re $449 for the proposition that he was not required to

prove ownership of the Kel-Tek in order to challenge its forfeiture. Rather, his lawful

possession of the Kel-Tek was sufficient. However, In re $449 is distinguishable

from this case.

       {¶52} In In re $449, the defendant never denied having an interest in the

vehicle subject to foreclosure.    Rather, the defendant argued the opposite, that

although the vehicle was not titled in his name at the time of forfeiture, the vehicle

had been gifted to him. In re $449 at ¶ 4.

       {¶53} The present case is more analogous to In re 1995 Mercedes C280, 168

Ohio App.3d 48, 2006-Ohio-1565, 858 N.E.2d 823, ¶ 4 (1st Dist.), where the

defendant denied any ownership interest in the vehicle subject to forfeiture. This

court held that where a person is not the owner of property subject to forfeiture, the

person lacks standing to challenge the forfeiture. Id. at ¶ 5. Multiple other districts




                                               16
                      OHIO FIRST DISTRICT COURT OF APPEALS



have likewise held that if a defendant claims no interest in the seized property or

claims that another person is the true owner of the property, the defendant has no

standing to contest or appeal the forfeiture. See, e.g., State v. Langston, 6th Dist.

Lucas No. L–12–1014, 2012-Ohio-6249, ¶ 9 (listing cases from other districts).

       {¶54} Because Griffin denied ownership of the Kel-Tek, he does not have

standing to challenge the forfeiture of it. The third assignment of error is sustained

as to the Springfield and overruled as to the Kel-Tek.

                           Fourth Assignment of Error

       {¶55} In his fourth assignment of error, Griffin argues that R.C.

2923.16(E)(1) is unconstitutionally vague and violates Article I, Section 16 of the

Ohio Constitution, and the Due Process Clause in the Fourteenth Amendment to the

United States Constitution.

       {¶56} “Failure to raise at the trial court level the issue of the constitutionality

of a statute or its application, which issue is apparent at the time of trial, constitutes

a waiver of such issue and a deviation from this state’s orderly procedure, and

therefore need not be heard for the first time on appeal.” State v. Pleatman, 1st Dist.

Hamilton No. C-160234, 2016-Ohio-7659, ¶ 16, quoting State v. Awan, 22 Ohio

St.3d 120, 489 N.E.2d 277 (1986), syllabus. An appellate court has discretion to

review a constitutional challenge not raised before the trial court for plain error, but

will not do so absent extraordinary reasons. Pleatman at ¶ 19.

       {¶57} Griffin has failed to show that his circumstances are extraordinary and

deserving of our review. His fourth assignment of error is waived.




                                               17
                      OHIO FIRST DISTRICT COURT OF APPEALS


                                      Conclusion


       {¶58} Griffin’s third assignment of error is sustained as to the Springfield

firearm, but overruled as to the Kel-Tek firearm. All other assignments of error are

overruled and the judgment of the trial court is affirmed in all other respects. The

cause is remanded to the trial court with instructions to amend its forfeiture order

and to order the Springfield firearm returned to Griffin.

                    Judgment affirmed in part, reversed in part, and cause remanded.



MOCK, P.J., and WINKLER, J., concur.



Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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