[Cite as Dayton Police Dept. v. Thompson, 2012-Ohio-2660.]




                          IN THE COURT OF APPEALS OF OHIO
                             SECOND APPELLATE DISTRICT
                                MONTGOMERY COUNTY

DAYTON POLICE DEPARTMENT :
                                                 :       Appellate Case No. 24790
        Plaintiff-Appellee                       :
                                                 :       Trial Court Case No. 09-CV-4020
v.                                               :
                                                 :
RYAN K. THOMPSON                                 :       (Civil Appeal from
                                                 :       (Common Pleas Court)
        Defendant-Appellant              :
                                                :
                                             ...........

                                             OPINION

                              Rendered on the 15th day of June, 2012.

                                             ...........

MATHIAS H. HECK, JR., by LAURA G. MARIANI, Atty. Reg. #0037409, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

MICHAEL G. WELLER, Atty. Reg. #0037409, 2121 Miamisburg-Centerville Road, Dayton,
Ohio 45459
       Attorney for Defendant-Appellant

                                                       .............

HALL, J.

        {¶ 1}    Ryan Thompson appeals from the trial court’s decision, order, and entry

overruling his objections to a magistrate’s decision and ordering civil forfeiture of $3,808

found in his possession at the time of his arrest for possessing crack cocaine.

        {¶ 2}    In his sole assignment of error, Thompson contends the trial court erred in
                                                                                                                                     2


upholding the magistrate’s decision and ordering forfeiture of the money.

         {¶ 3}        The record reflects that police stopped Thompson’s vehicle for a window-tint

violation. After being stopped, Thompson fled on foot. While he was running, police saw him

make a “throwing motion.” Police caught Thompson when he slipped and fell. They

discovered a baggie containing a golf-ball sized piece of crack cocaine near where he had

made the throwing motion. Although it had been raining and the ground was wet, the baggie

was mostly dry. Police placed Thompson under arrest for drug possession and discovered

$3,808 in his pants pocket. The money was being carried in three stacks, each of which was

secured by a rubber band. The first two stacks contained $1,000 each. The third stack

contained $1,808.

         {¶ 4}        A grand jury indicted Thompson on one count of crack-cocaine possession in

April 2009. The prosecutor then filed this civil-forfeiture action in May 2009. The forfeiture

petition alleged that the cash found in Thompson’s pocket was subject to forfeiture as “either

contraband, proceeds and/or an instrumentality used in the course of, or intended for use in the

course of, the commission of a criminal offense[.]” 1 (Doc. #1). Thereafter, in July 2009,

Thompson was convicted of crack-cocaine possession, a second-degree felony, and sentenced

to prison. The civil forfeiture action eventually proceeded to a February 22, 2011 hearing

before a magistrate.

         {¶ 5}        The only witness at the hearing was Dayton Police Officer Ronald Velez. He

testified consistent with the facts set forth above. He also testified that people involved in drug


            1
             The prosecutor later filed an amended petition that made a technical change, substituting the appropriate political subdivision as
 the petitioner. (Doc. #31).
                                                                                          3


transactions frequently carry money in $1,000 “stacks.” He explained that having the money

pre-counted and stacked facilitates faster transactions. He also testified that the piece of

cocaine found near Thompson weighed 23.3 grams—much more than the typical .10 ounce

“personal use amount.” Velez further testified that Thompson admitted having no job.

According to Velez, Thompson also claimed he ran from the police because he believed he

had a warrant. Velez opined, however, that Thompson (who did not have a warrant) “had no

reason to run” as he possessed a valid driver’s license and insurance.

       {¶ 6}    Based on Velez’s testimony, the magistrate held that the $3,808 at issue was

subject to civil forfeiture as “proceeds” derived from or acquired through the commission of a

criminal offense. In support, the magistrate reasoned:

               * * * Petitioner has shown by a preponderance of the evidence that the

       cash found on Respondent’s person is “proceeds” as defined by Ohio law. The

       Magistrate finds it more likely than not that Respondent threw the baggie

       containing crack cocaine while trying to flee from the police. The amount of

       crack cocaine found in the baggie was much greater than the amount typical for

       personal use, suggesting that Respondent was selling the crack cocaine.

       Additionally, the money found on Respondent’s person was divided into

       “stacks,” a practice which is common in the drug world because it helps to

       expedite transactions. Given the totality of the circumstances, the Magistrate

       concludes that it is more likely than not that the money found on Respondent’s

       person was derived, directly or indirectly, from respondent’s sale of crack

       cocaine, a felony. Therefore, the $3,808.00 in U.S. Currency listed in the
                                                                                           4


       petition is subject to forfeiture as “proceeds.”

(Doc. #60 at 5).

       {¶ 7}       Thompson filed objections, raising two issues. First, he argued that his

criminal case involved possession, not trafficking, and that drug possession does not result in

any cash proceeds. Second, he asserted that Officer Velez’s testimony created at most an

inference that the cash in his pocket constituted proceeds of a criminal offense. He maintained

that such an inference was insufficient to support forfeiture under Dayton Police Dept. v.

Byrd, 189 Ohio App.3d 461, 2010-Ohio-4529, 938 N.E.2d 1110 (2d Dist.).

       {¶ 8}       The trial court overruled Thompson’s objections and ordered the $3,808

forfeited. It reasoned that civil forfeitures “are not limited in scope to proceeds derived

directly or indirectly from the offense for which the defendant is actually convicted.” (Doc.

#65 at 6). The trial court held that forfeiture is permitted if the government proves, by the

preponderance of the evidence, that the money constitutes proceeds of a criminal offense,

regardless of whether it results in a charge or a conviction. The trial court also found this

court’s decision in Byrd to be distinguishable. It noted that in Byrd this court found

“absolutely no evidence that the money seized * * * was proceeds[.]” “That is not the case

here,” the trial court reasoned, “because DPD produced evidence regarding how the money

was separated and carried, and the significance of how the money was separated in relation to

drug offenses.” The trial court also noted the absence of evidence contradicting Officer

Velez’s testimony.

       {¶ 9}       On appeal, Thompson reiterates his argument that the government was

required to prove the $3,808 constituted proceeds of his offense of conviction, drug
                                                                                                                                   5


possession. He reasons: “Drug possession does not result in ‘proceeds’ of money. * * * It is an

impossibility to have ‘proceeds’ from simply possessing drugs.”

         {¶ 10} Thompson also contends the government failed to meet its burden to prove the

origin of the money. He points out Velez’s admitted lack of “first-hand knowledge” regarding

where he got the money. Thompson also notes the absence of any surveillance, marked cash,

other drugs, or paraphernalia at the scene of his arrest. Thompson additionally contends Velez

admitted that banks frequently use bands to stack cash. Finally, Thompson repeats his

argument that ordering forfeiture in this case is inconsistent with Byrd. He cites Byrd for the

proposition that there is nothing inherently illegal about possessing cash and that inferences

about the origin of cash are insufficient to classify it as “proceeds.”

         {¶ 11} Upon review, we find Thompson’s arguments to be without merit. Under R.C.

2981.05(D), a trial court “shall issue a civil forfeiture order if it determines that the prosecutor

has proved by a preponderance of the evidence that the property is subject to forfeiture under

section 2981.02 of the Revised Code * * *.”2 In turn, R.C. 2981.02 provides that “[p]roceeds

derived from or acquired through the commission of an offense” are subject to civil forfeiture

under R.C. 2981.05. “Proceeds” include “any property derived directly or indirectly from an

offense,” including money. R.C. 2981.01(B)(11)(a). An “offense” is “any act or omission that

could be charged as a criminal offense * * * whether or not a formal criminal prosecution * *

* began at the time the forfeiture is initiated.” R.C. 2981.01(B)(10). Finally, R.C. 2981.03(F)

provides that “[a] civil action to obtain civil forfeiture may be commenced as described in


           2
             R.C. 2981.05(D) also provides for a “proportionality review” under certain circumstances. That review is inapplicable, however, in
 cases involving alleged “proceeds” of a criminal offense. See R.C. 2981.09(B).
                                                                                                                                       6


section 2981.05 of the Revised Code regardless of whether the offender * * * has pleaded

guilty to [or] been convicted of * * * the act that is the basis of the order.”

         {¶ 12} In light of the foregoing statutes, we reject Thompson’s assertion that

forfeiture was improper because he was convicted of drug possession, which results in no

proceeds. Contrary to Thompson’s argument, the government was required to prove that the

money in his pocket constituted proceeds of “an offense,” not necessarily proceeds of the

offense at issue in his criminal case. As set forth above, “an offense” is any act that “could be

charged.” A conviction is not required. Therefore, forfeiture was proper if the $3,808

constituted proceeds of drug trafficking.3

         {¶ 13} The next question is whether the government proved, by the preponderance of

the evidence, that the money in Thompson’s pocket was derived from drug trafficking. Officer

Velez’s testimony supports such a conclusion. Thompson had possession of a baggie

containing 23.3 grams of crack cocaine and $3,808 in cash. According to Velez, the quantity

of crack cocaine in the baggie was 233 times greater than the typical .10 ounce “personal use

amount.” The cash was divided into three separate “stacks,” two of which contained $1,000.

Velez testified that drug transactions frequently are conducted using $1,000 stacks of

currency. Thompson also admitted not having a job. Considered together, these facts support a

            3
              In reaching this conclusion, we find State v. Bowshier, 2d Dist. Clark No. 2011-CA-28, 2012-Ohio-2410, to be distinguishable. In
 Bowshier, this court recently held that the wording of a prior version of the criminal-forfeiture statute left “no doubt that the property sought
 to be forfeited must either have been the direct or indirect proceeds of the particular drug abuse offense of which a defendant has been
 convicted[.]” Notably, this conclusion was based on the language of former R.C. 2925.42(A)(1)(a), which provided for criminal forfeiture
 upon conviction of a felony drug abuse offense if the property at issue constituted proceeds “of the felony drug abuse offense or act.” As set
 forth above, the current civil-forfeiture statute includes no such requirement. It requires proof that the property subject to forfeiture
 constitutes proceeds of “an offense,” not necessarily the offense of conviction. It defines “an offense” as any act that “could be charged”
 without requiring a conviction.
                                                                                           7


reasonable conclusion that Thompson was selling the crack cocaine, not just using it, and that

the money in his possession constituted proceeds of drug trafficking. We agree with the trial

court that the preponderance of the evidence supports this conclusion.

       {¶ 14} Finally, we reject Thompson’s argument that forfeiture of the $3,808 was

erroneous under Byrd, supra. In Byrd, this court correctly noted that “there is nothing

inherently illegal about possessing cash.” Byrd at ¶11. This court then found nothing in the

record to contradict the trial court’s conclusion that the $231 found in the defendant’s

possession was not “proceeds” of criminal activity. Id. In reaching this conclusion, the trial

court and the magistrate had found “absolutely no evidence” that the money constituted such

“proceeds.” Id. Despite the defendant’s plea to a charge of attempted trafficking in marijuana,

the record lacked evidence linking the $231 to the offense.

       {¶ 15} Unlike in Byrd, Officer Velez’s testimony did support a finding, by the

preponderance of the evidence, that the $3,808 in Thompson’s possession constituted

proceeds of drug trafficking. Therefore, Byrd is distinguishable.

       {¶ 16} Based on the reasoning set forth above, we overrule Thompson’s assignment

of error and affirm the judgment of the Montgomery County Common Pleas Court.

                                                   .............

GRADY, P.J., and DONOVAN, J., concur.

Copies mailed to:

Mathias H. Heck
Laura G. Mariani
Michael G. Weller
Hon. Mary L. Wiseman
