[Cite as State v. Bustamante, 2013-Ohio-4975.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               SENECA COUNTY


STATE OF OHIO,

        PLAINTIFF-APPELLEE,                         CASE NO. 13-12-26

        v.

TYLER J. BUSTAMANTE,                                OPINION

        DEFENDANT-APPELLANT.


STATE OF OHIO,

        PLAINTIFF-APPELLEE,                         CASE NO. 13-13-04

        v.

TYLER J. BUSTAMANTE,                                OPINION

        DEFENDANT-APPELLANT.


                 Appeals from Seneca County Common Pleas Court
                   Trial Court Nos. 11-CR-0209 and 11 CR 0209

     Judgments Affirmed in Part, Reversed in Part and Causes Remanded

                          Date of Decision: November 12, 2013


APPEARANCES:

        Anthony D. Hall for Appellant

        Derek W. DeVine and Heather N. Jans for Appellee
Case No. 13-12-26, 13-13-04




SHAW, J.

        {¶1} Defendant-appellant Tyler J. Bustamante (“Bustamante”) appeals the

June 7, 2012, judgment entry sentencing Bustamante to 22 months in prison after

Bustamante was convicted in a bench trial of Trafficking in Heroin in violation of

R.C. 2925.03(A)(1),(C)(6)(a), a felony of the fifth degree, Possession of Drugs

(heroin) in violation of R.C. 2925.11(A),(C)(6)(a), a felony of the fifth degree, and

Possession       of    Drugs      (boldenone        undecylenate)        in    violation      of    R.C.

2925.11(A),(C)(2)(a), a felony of the fifth degree.1 Bustamante also appeals the

January 3, 2013, judgment entry ordering that certain property of Bustamante be

forfeited.

        {¶2} The facts relevant to this appeal are as follows. On September 8,

2011, during a controlled drug buy, Bustamante sold heroin to a confidential

informant in exchange for a Lowe’s gift card in the amount of $423. The sale took

place at Bustamante’s residence. After the heroin was given to the confidential

informant, Bustamante sat in his vehicle in the driveway of his residence with the

informant while the informant snorted some of the heroin. The informant claimed

that Bustamante ordered him to use the heroin.




1
  Possession of boldenone was elevated from a first degree misdemeanor to a felony of the fifth degree due
to the court’s finding that Bustamante had previously been convicted for a drug abuse offense.

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        {¶3} Subsequently, on September 12, 2011, Bustamante’s residence—

which he shared with his mother—was searched pursuant to a warrant. At the

residence, police seized what was later determined to be heroin and boldenone

undecylenate,2 a Schedule III controlled substance. The police also seized cash in

the amount of $1,415.00, various electronics, and Bustamante’s two vehicles.

        {¶4} On October 20, 2011, Bustamante was indicted by the Seneca County

Grand Jury for Trafficking in Heroin in violation of R.C. 2925.03(A)(1),(C)(6)(a),

a felony of the fifth degree, Corrupting Another with Drugs in violation of R.C.

2925.02(A)(2),(C)(1), a felony of the second degree, Possession of Drugs (heroin)

in violation of R.C. 2925.11(A),(C)(6)(a), a felony of the fifth degree, with the

specification that property seized during the commission of the offense were

proceeds derived from or acquired through the commission of the offense, and

Possession      of    Drugs      (boldenone       undecylenate),       in    violation     of    R.C.

2925.11(A),(C)(2)(a), a felony of the fifth degree as a result of Bustamante being

previously convicted of a drug abuse offense. (Doc. 2).

        {¶5} On November 4, 2011, Bustamante pled not guilty to the charges

against him. (Doc. 12).




2
 Revised Code 3719.41(E)(1)(a) lists boldenone as a Schedule III controlled Substance under the heading
of Anabolic Steroids. Unlike the heroin, which was found in Bustamante’s room in the residence, the
boldenone was found in the grass outside the home, but still on the property.

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        {¶6} On April 25, 2012, Bustamante waived his right to a jury trial and

elected to have a trial by the court. (Doc. 55).

        {¶7} On April 25-26, 2012, the court held a bench trial. At the trial,

thirteen witnesses were called including the officers conducting the controlled

drug buy, the confidential informant involved in the controlled drug buy, the

officers involved in the search of Bustamante’s residence and property, and the

individuals involved in testing the substances sent to the BCI crime lab for

chemical analysis.

        {¶8} On May 2, 2012, the court found Bustamante not guilty of the most

serious offense, “Corrupting Another with Drugs.” (Doc. 58). However, the court

found Bustamante guilty of Trafficking in Heroin, and both counts of Possession

of Drugs as charged in the indictment.3 (Id.) With regard to the Possession of

Heroin charge, the court made the additional finding that the property specified in

the indictment was subject to forfeiture as instrumentalities and/or proceeds from

illegal activity. (Id.)

        {¶9} On June 7, 2012, Bustamante was sentenced to serve 11 months in

prison on his conviction for Trafficking in Drugs, and 11 months in prison on each

Possession of Drugs conviction. (Doc. 61). The sentences for Possession of


3
  With regard to Bustamante’s conviction for possession of boldenone, the court made the additional
finding that Bustamante had previously been convicted of a drug abuse offense to elevate the charge to a
felony of the fifth degree.

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Drugs were to be served concurrent to each other, but consecutive to the sentence

for Trafficking in Drugs, for an aggregate prison term of 22 months. (Id.) As

there was a discussion regarding the items to be forfeited, the court set a forfeiture

hearing for a later date. (Id.) Bustamante appeals from this judgment entry of

sentence. (Id.)

       {¶10} On November 21, 2012, the court held a hearing on forfeiture of

property that was seized and subject to forfeiture. On January 3, 2013, the court

filed an entry listing the items to be distributed to those who had a valid claim, and

detailing those items that were to be forfeited by Bustamante as either

instrumentalities or proceeds of a crime. (Doc. 110).

       {¶11} On February 15, 2013, the trial court filed a nunc pro tunc judgment

entry correcting an address on the forfeiture entry. (Doc. 111). Bustamante also

appeals from this forfeiture entry.

       {¶12} It is from the June 7, 2012, judgment entry of sentence, and the

February 15, 2013, judgment entry regarding forfeiture that Bustamante appeals,

asserting the following assignments of error for our review.

                  ASSIGNMENT OF ERROR 1
       THE TRIAL COURT ERRED WHEN IT ORDERED THE
       APPELLANT TO PAY RESTITUTION TO A NON-VICTIM.




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                   ASSIGNMENT OF ERROR 2
       THE TRIAL COURT COMMITTED A REVERSIBLE ERROR
       BY   DEPRIVING    THE   APPELLANT   OF    HIS
       CONSTITUTIONAL RIGHTS.

                   ASSIGNMENT OF ERROR 3
       THE TRIAL COURT HAD INSUFFICIENT EVIDENCE TO
       CONVICT THE APPELLANT OF THE CRIME OF
       POSSESSION OF DRUGS.

                   ASSIGNMENT OF ERROR 4
       THE TRIAL COURT’S DECISION TO SEIZE                             THE
       APPELLANT’S   PROPERTY   WAS   AGAINST                          THE
       MANIFEST WEIGHT OF THE EVIDENCE.

       {¶13} For the sake of clarity, we elect to address the assignments of error

out of the order in which they were raised.

                           Second Assignment of Error

       {¶14} In Bustamante’s second assignment of error, Bustamante argues that

he was deprived of his constitutional rights. Specifically, Bustamante contends

that the State failed to disclose that the confidential informant involved in the

controlled drug buy was “fired” for using drugs in a different controlled drug buy

shortly after Bustamante sold the informant heroin.       In addition, Bustamante

argues that his counsel was ineffective for failing to object when this information

was presented and for failing to move for a mistrial.

       {¶15} At the outset, we would note that no objection was raised at the trial

regarding this issue, therefore, Bustamante has waived all but plain error. In order


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to have plain error under Crim.R. 52(B) there must be an error, the error must be

an “obvious” defect in the trial proceedings, and the error must have affected

“substantial rights.” State v. Barnes, 94 Ohio St.3d 21, 27, (2002). Plain error is

to be used “‘with the utmost caution, under exceptional circumstances and only to

prevent a manifest miscarriage of justice.’” Id. quoting State v. Long, 53 Ohio

St.2d 91 (1978), paragraph three of the syllabus.

       {¶16} On appeal, Bustamante claims that the State failed to disclose that

the confidential informant in this case was “fired” as an informant after he

purportedly used drugs during a subsequent investigation involving a different

individual. According to Bustamante, the State thus failed to disclose potential

exculpatory evidence.

       {¶17} To begin our analysis, we would note that there is no indication from

the transcript that the State ever failed to disclose the fact that the confidential

informant was subsequently “fired.” When this information was first presented at

trial through the cross-examination testimony of Detective Charles Boyer, no

objection was made that the information was not disclosed, and defense counsel

cross-examined Detective Boyer with this information. (Tr. at 96). There is no

indication in the record that trial counsel was surprised by this information, or that

the State ever failed to disclose this information.



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       {¶18} However, even assuming the State failed to disclose this information,

Bustamante’s counsel was still able to fully cross-examine both Detective Boyer

and the confidential informant regarding the informant being “fired” for his use of

drugs during the controlled buy operations. Therefore, Bustamante can show no

resulting prejudice.

       {¶19} Furthermore, Bustamante strangely argues on appeal that the

information of the informant’s “firing” was most relevant as exculpatory evidence

to the charge of “Corrupting Another with Drugs.” However, Bustamante was

acquitted of that charge and thus no error could further assist him regarding that

acquittal. As Bustamante’s claim of the State’s purported failure to disclose the

confidential informant’s subsequent drug use might relate to Bustamante’s

convictions for possession of heroin, possession of boldenone undecylenate, and

for trafficking in heroin, we find that the confidential informant’s subsequent

termination would have no bearing on the outcome of those charges and no

relevance to Bustamante’s guilt.

       {¶20} Thus for all of the foregoing reasons we cannot find any error, let

alone plain error. As we have found no error, we cannot find that Bustamante’s

counsel was ineffective for failing to object or move for a mistrial. Accordingly,

Bustamante’s second assignment of error is overruled.



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                                      Third Assignment of Error

           {¶21} In Bustamante’s third assignment of error, Bustamante contends that

there was insufficient evidence to convict him of Possession of boldenone

undecylenate. Specifically, Bustamante argues that the State failed to present any

evidence that Bustamante had either actual or constructive possession of a vial that

contained a syringe and boldenone undecylenate4 that was seized from

Bustamante’s yard.

           {¶22} At the outset, we note that Bustamante failed to move for a Crim.R.

29(A) judgment of acquittal. Failing to move for a judgment of acquittal pursuant

to Crim.R. 29(A), Bustamante waived all but plain error regarding the sufficiency

of the evidence. See Crim.R. 29(A); State v. Cooper, 3d Dist. No. 9-06-49, 2007-

Ohio-4937, ¶ 23, citing State v. Roe, 41 Ohio St.3d 18, 25 (1989).

           {¶23} Sufficiency of the evidence is a test of adequacy rather than

credibility or weight of the evidence. State v. Thompkins, 78 Ohio St.3d 380, 386

(1997). Whether the evidence is legally sufficient to sustain a verdict is a question

of law. Id. In reviewing the record for sufficiency, the relevant inquiry is whether,

after viewing the evidence in a light most favorable to the prosecution, any

rational trier of fact could have found the essential elements proven beyond a

reasonable doubt. State v. Smith, 80 Ohio St.3d 89, 113 (1997).

4
    The Boldenone Undecyclenate was “a liquid inside a glass vial, which weighed 9.1 grams.” (Tr. at 118).

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      {¶24} Possession of Drugs, specifically possession of schedule III

controlled substances (which includes boldenone undecylenate), is criminalized

pursuant to R.C. 2925.11(A),(C)(2)(a), which reads,

      (A) No person shall knowingly obtain, possess, or use a
      controlled substance or a controlled substance analog.

      ***

      (C) Whoever violates division (A) of this section is guilty of one
      of the following:

      ***

      (2) If the drug involved in the violation is a compound,
      mixture, preparation, or substance included in schedule III, IV,
      or V, whoever violates division (A) of this section is guilty of
      possession of drugs. The penalty for the offense shall be
      determined as follows:

      (a) Except as otherwise provided in division (C)(2)(b), (c), or
      (d) of this section, possession of drugs is a misdemeanor of the
      first degree or, if the offender previously has been convicted of a
      drug abuse offense, a felony of the fifth degree.

      {¶25} Possession of drugs can be either actual or constructive. Cooper,

supra, at ¶ 25. See also State v. Wolery, 46 Ohio St.2d 316, 329 (1976), certiorari

denied, 429 U.S. 932, 97 S.Ct. 339; State v. Haynes, 25 Ohio St.2d 264 (1971). “A

person has ‘actual possession’ of an item if the item is within his immediate

physical possession.” State v. Williams, 4th Dist. No. 03CA2736, 2004-Ohio-

1130, ¶ 23 citing State v. Fugate, 4th Dist. No. 97CA2546 (Oct. 2, 1998). A


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person has “constructive possession” if he is able to exercise domination and

control over an item, even if the individual does not have immediate physical

possession of it. State v. Hankerson, 70 Ohio St.2d 87 (1982), syllabus; Wolery,

supra. For constructive possession to exist, “[i]t must also be shown that the

person was conscious of the presence of the object.” Hankerson, 70 Ohio St.2d at

91.   Finally, the State may prove the existence of the various elements of

constructive possession of contraband by circumstantial evidence alone. State v.

Stewart, 3d Dist. No. 13-08-18, 2009-Ohio-3411, ¶ 51; State v. Jenks, 61 Ohio

St.3d 259, 272-73 (1991), superseded by constitutional amendment on other

grounds as stated in State v. Smith, 80 Ohio St.3d 89, 1997-Ohio-355.

       {¶26} In this case, the State introduced evidence that Bustamante shared a

residence with his mother.      Bustamante’s residence and the premises were

searched pursuant to a search warrant subsequent to the controlled drug buy

operation wherein Bustamante sold a confidential informant heroin. During the

search of Bustamante’s residence and the premises, officers located “a vial of

suspected steroids outside [the residence] in the grass area next to the shed * * *

along with a small vial containing a * * * needle or syringe.”

       {¶27} Inside the residence, the police found what was later determined to

be heroin, and they also “located a syringe the same size, same make, same

everything * * * in [Bustamante’s] bedroom” as the syringe in the yard. (Tr. at

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Case No. 13-12-26, 13-13-04



59). According to the police, “the two needles were the same but one was found

with the suspected steroids outside in the grass area with the vial of * * *

suspected steroids and the – the syringe. And then [the police] found another

syringe or needle in the same * * * size, shape, make in the bedroom with Tyler

Bustamante.” (Tr. at 59).

        {¶28} Thus police located the vial on the property where Bustamante

resided, where he was able to exercise dominion and control over it. A needle was

found with the vial of steroids that was identical to the type of needle located in

Bustamante’s room, enabling the trier of fact to infer a connection. In addition to

this evidence, Bustamante sold heroin during the controlled drug buy to the

confidential informant and had the informant use the heroin outside the residence

in a car parked in the driveway.                  Therefore the factfinder could infer that

Bustamante was in the habit of possessing, selling, or using drugs in the yard

where he resided.5

        {¶29} Based on the facts of this case we cannot find that there is an

“obvious defect” in the trial court’s finding or that a “manifest miscarriage of

justice” existed giving rise to plain error.                 Accordingly, we cannot find that




5
  The State also contends that because Bustamante was at the gym at one point on the day of the controlled
buy that the factfinder could infer that Bustamante was using the steroids. However, there is no indication
that Bustamante used the steroids and mere use of a gym would not entitle the State to such an inference.

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insufficient evidence existed to convict Bustamante of Possession of Drugs.

Therefore, Bustamante’s third assignment of error is overruled.

                            Fourth Assignment of Error

       {¶30} In Bustamante’s fourth assignment of error, he argues that the trial

court’s decision to order that certain property of his be forfeited was against the

manifest weight of the evidence.       Specifically, Bustamante disputes the trial

court’s order regarding the following items: digital camera, Samsung cell phones,

flip video camera, numerous gift cards, visa debit card, Bustamante’s

identification card, Dell Inspiron laptop computer, Panasonic flat-screen

television, HP Notebook computer, silver LG Verizon phone, numerous cell phone

chargers, numerous GPS units, rims with tires, $1,415.00 in cash, and the 1972

Chevrolet Chevelle SS.

       {¶31} Revised Code Chapter 2981 permits “‘[a] law enforcement officer

[to] seize property that the officer has probable cause to believe is property subject

to forfeiture.’” State v. North, 1st Dist. No. C-120248, 2012-Ohio-5200 ¶ 7

quoting R.C. 2981.03(A)(2). “Property subject to forfeiture” is defined to include

“[p]roceeds derived from or acquired through the commission of an offense.”

R.C. 2981.02(A)(2). In Dayton Police Dept. v. Byrd, 2d Dist. No. 23551, 2010–

Ohio–4529 ¶ 10, the court explained as follows:



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       Generally, the term “proceeds” refers to the profit gained
       directly or indirectly from an offense. R.C. 2981.01(B)(11). The
       burden is on the state to show that the money has any connection
       to the underlying criminal offense. State v. Ali (1997), 119 Ohio
       App.3d 766, 770, 696 N.E.2d 285. The state “must demonstrate
       that it is more probable than not, from all the circumstances,
       that the defendant used [the money] in the commission of
       criminal offenses.” (Citations omitted.) Id. at 769. The same
       logic applies regarding sufficient proof that the money was
       proceeds of the criminal offense. Id. at ¶ 10.

       {¶32} A prosecuting attorney may pursue forfeiture of seized property in a

criminal proceeding under R.C. 2981.04, a civil proceeding under R.C. 2981.05,

or both. R.C. 2981.03(F). Criminal forfeiture is initiated by including in the

charging instrument a specification consistent with R.C. 2941.1417 or by

providing the defendant with “prompt notice,” in conformity with Crim.R. 7(E),

that the property is subject to forfeiture. R.C. 2981.04(A)(1) and (A)(2). In such

actions, the State bears the burden of proof to show by a preponderance of the

evidence that the seized property is subject to forfeiture under R.C. 2981.02. See

R.C. 2981.04; See also State v. Brownridge, 3d Dist. No. 9–09–24, 2010–Ohio–

104, ¶ 21.

       {¶33} Generally, forfeiture is not favored in Ohio. State v. Clark, 173 Ohio

App.3d 719, 2007–Ohio–6235, ¶ 8 (3d Dist.); Marmet Drug Task Force v. Paz, 3d

Dist. No. 9-11-60, 2012-Ohio-4882. “Whenever possible, [forfeiture] statutes

must be construed so as to avoid a forfeiture of property.” State v. Lilliock, 70


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Ohio St.2d 23, 26 (1982). Moreover, forfeiture is only appropriate when “the

expression of the law is clear and the intent of the legislature manifest.” Id.

           {¶34} We do not disturb a trial court's findings in forfeiture cases if there is

“‘some competent, credible evidence going to all the essential elements of the

case.’” State v. Watkins, 7th Dist. No. 07 JE 54, 2008–Ohio–6634, ¶ 34, quoting,

C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279 (1978), syllabus. When

employing this standard of review, a court has an obligation to presume the

findings of the trier of fact are correct. Seasons Coal Co. v. City of Cleveland, 10

Ohio St.3d 77, 79–80 (1984). Mere disagreement over the credibility of witnesses

or evidence is not sufficient reason to reverse a judgment. Id. at 80.

           {¶35} In the trial court’s verdict, the trial court found Bustamante guilty of

Possession of Heroin, and made the additional finding that:

           the property specified in the search warrant inventory, all
           owned and in the possession of the defendant, Tyler J.
           Bustamante, during the commission of the offense and used for
           purposes of facilitating the offense and/or are proceeds derived
           from or acquired through the commission of an offense * * *
           shall be subject to forfeiture.

(Doc. 58).6           The court then set the matter of the forfeiture of Bustamante’s

property for a hearing.




6
    The finding of guilt specifically listed the property that was subject to forfeiture.

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           {¶36} On November 21, 2012, the court held a Forfeiture Hearing pursuant

to R.C. 2981.04. At that hearing, the State informed the court that it had been

notified by two parties claiming some of the seized property. The court also heard

the testimony of Chelsea Dunn, who testified that some of the seized items were

hers. After hearing the arguments of the parties and Dunn’s testimony, the court

ordered that the following items were to be forfeited:

           (1) Silver digital scale; numerous packages of black tar heroin;
           (1) digital camera; (1) vial of steroids; numerous balloons and
           papers with residue; numerous Samsung cell phones; (1) Flip
           video camera; numerous Gift Cards; (1) Visa Debit Card; (1)
           Tyler J. Bustamante Ohio ID card; (1) Dell Inspiron laptop
           computer; (1) Panasonic flat-screen t.v.; (1) HP Notebook
           computer; (1) silver LG Verizon phone; numerous cell phone
           chargers; numerous GPS units; (4) rims with tires; and one
           thousand four hundred fifteen dollars ($1,415.00) U.S. currency
           seized in the above-captioned case is FORFEITED * * *.

           It is further ORDERED, ADJUDGED AND DECREED that the
           1972 Chevrolet Chevelle SS motor vehicle * * * and 2002
           Cadillac Deville motor vehicle * * * seized in the above-
           captioned case are FORFEITED.

(Doc. 111).7

           {¶37} On appeal, Bustamante challenges the forfeiture of all but the 2002

Cadillac Deville, the digital scale, and the drugs and paraphernalia. Bustamante

argues that the remaining items were not instrumentalities used in a crime, and that

the State did not show that the forfeited items were purchased through proceeds of

7
    Specific items claimed by the Tiffin Motel, and Lindsey Whitehead were returned and not forfeited.

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Case No. 13-12-26, 13-13-04



a crime by a preponderance of the evidence. Bustamante contends that the State

only showed evidence of one drug trafficking transaction, not ongoing conduct.

Conversely, the State contends that all of the forfeited items Bustamante is

complaining about were purchased with money Bustamante obtained through drug

trafficking and that therefore as proceeds of a crime, the items were subject to

forfeiture.

        {¶38} As proof to satisfy its burden that the forfeited items were “proceeds”

of a crime, the State introduced a certified letter from the Ohio Department of

Taxation stating that as of October 19, 2011, Bustamante had not filed any tax

returns for the years of 2000 through 2010, showing that Bustamante had no

reported income.8 (Tr. at 64); (State’s Ex. 28). In addition, the State introduced

evidence that Bustamante had otherwise been involved in selling drugs on and off

for over a decade,9 and that the police were aware Bustamante lacked gainful

employment. (State’s Ex. 6); (Tr. at 169). Detective Sergeant Donald Joseph

testified that these were the reasons that Bustamante’s vehicles were seized,


8
  In State v. Dodson, 12th Dist. No. CA2010-08-191, 2011-Ohio-6222, the Twelfth District Court of
Appeals determined that a lack of an income through tax records, when combined with statements of the
defendant that he made $10,000 to $15,000 per month were sufficient to show that cash subject to forfeiture
“was proceeds derived from or acquired through the commission of trafficking in marijuana.” Dodson, at ¶
60.
9
  State’s Exhibit 6 contained Detective Charles Boyer’s affidavit used in obtaining the warrant to search
Bustamante’s residence. In that exhibit, Detective Boyer averred that Bustamante had been involved in
drug activity dating back to 1998, when Bustamante was still a Juvenile. Detective Boyer averred that over
the following thirteen years Bustamante had been involved in numerous investigations and charged
numerous times with drug related crimes. In the affidavit, Detective Boyer provides summaries of those
incidents and investigations.

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Case No. 13-12-26, 13-13-04



because he believed they were paid for by drug proceeds. (Tr. at 169). The State

thus contends that Bustamante had no income based on the tax records, and

therefore he could not have afforded the forfeited items if not for his continuing

history of selling drugs.

       {¶39} In countering the State’s evidence, Bustamante contends that the tax

records were insufficient. Bustamante also argues that he was a student at Tiffin

University and had received loan “checks” from the university; however, there is

no testimony regarding this issue in the record.           The only statements made

regarding the alleged checks were made by Bustamante’s counsel, rather than

elicited as testimony at trial or at the forfeiture hearing.

       {¶40} Notably Bustamante cites no case law in support of his argument that

the State failed to meet its relatively low burden of preponderance of the evidence.

While the tax records alone may only have indicated that Bustamante did not

make enough money to file taxes, the State also introduced some competent

credible evidence that Bustamante had been involved in a continuous course of

drug conduct for over a decade.         Bustamante produced no contrary evidence

whatsoever to contradict the State’s assertion that Bustamante purchased the

valuable items through proceeds of a crime. Thus unlike in State v. Conway, 8th

Dist. No. 96905, 2012-Ohio-590, wherein the Eighth District Court of Appeals

found forfeiture improper where there was some other indication that the

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Case No. 13-12-26, 13-13-04



defendant had made money in the preceding years, here there is absolutely no

evidence that Bustamante had earned any money otherwise.10

         {¶41} Thus evidence of Bustamante being involved in drug trafficking on

and off for over a decade, when combined with the tax records showing that

Bustamante had no reported income, provides some competent credible evidence

that supports the trial court’s finding that it was more likely than not that the

forfeited items were purchased with drug proceeds.

         {¶42} However, one item does not fall into the same category as the others.

Specifically, Bustamante’ ID card is not an instrumentality used in the offense and

it is not an item necessarily purchased with drug proceeds. Moreover, there is no

showing that unlike the other forfeited items of obvious value, Bustamante could

not have acquired the ID card without expending drug proceeds. Therefore, we

vacate the forfeiture of Bustamante’s ID card.

         {¶43} Accordingly, we sustain Bustamante’s assignment of error only to

the extent that we vacate the forfeiture of his ID card; however, Bustamante’s

fourth assignment of error is overruled in all other respects.




10
   Bustamante also claims that he worked as a confidential informant, but the record seems to establish that
rather than working for money as the confidential informant in this case did, Bustamante was working as a
confidential informant to “work off” drug trafficking charges.

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                             First Assignment of Error

       {¶44} In Bustamante’s first assignment of error, Bustamante contends that

the trial court erred by ordering Bustamante to pay restitution to the Seneca

County Drug Task Force METRICH Enforcement Unit. Specifically, Bustamante

argues that the trial court erred by ordering him to pay back the $423 that

METRICH used to purchase a Lowe’s gift card that was exchanged for heroin

from Bustamante.

       {¶45} This Court has held that the plain language of R.C. 2929.18(A)(1)

makes restitution available only to actual victims of an offense. State v. Taylor, 3d

Dist. No. 13-10-49, 2011-Ohio-5080, ¶ 57, citing State v. Stewart, 3d Dist. No.

16–08–11, 2008–Ohio–5823, ¶ 9, citing State v. Toler, 174 Ohio App.3d 335, 338,

2007–Ohio–6967. “A victim of a crime is defined as the person or entity that was

the ‘object’ of the crime.” State v. Samuels, 4th Dist. No. 03CA8, 2003-Ohio-

6106, ¶ 5, citing Black's Law Dictionary (5th Ed.1979) 1405.              In certain

circumstances, a government entity may be considered a victim of a crime under

R.C. 2929.18(A)(1), for example, when government funds are embezzled or when

government property is vandalized. Id. However, a government entity voluntarily

advancing its own funds to pursue a drug buy through an informant is not one of

the scenarios contemplated by R.C. 2929.18(A)(1). Taylor, at ¶ 57, citing State v.

Pietrangelo, 11th Dist. No.2003–L–125, 2005–Ohio–1686, ¶ 12–15; State v.

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Case No. 13-12-26, 13-13-04



Justice, 5th Dist. No. 09–CA–66, 2010–Ohio–4781, ¶ 24; State v. Jones, 7th Dist.

Nos. 08 JE 20, 08 JE 29, 2010–Ohio–2704, ¶ 44; State v. Collins, 6th Dist. Nos.

H–09–001, H–09–005, 2009–Ohio–6346, ¶ 52, State v. Frazier (Mar. 9, 2011), 4th

Dist. No. 10CA15.

       {¶46}    Seneca County Drug Task Force METRICH Enforcement Unit in

the amount of $423 for the purchase of the Lowe’s gift card. The State concedes

that the trial court’s order is error, and under our own case law, we find that this is,

in fact, error. In light of this error, we hereby remand the matter with instructions

for the trial court to vacate the order of restitution. Accordingly, Bustamante’s

first assignment of error is sustained.

       {¶47} For the foregoing reasons the judgment of the Seneca County

Common Pleas Court is affirmed in part, vacated in part, and reversed in part and

the matter is remanded to the trial court for further proceedings consistent with our

disposition of the first assignment of error.

                                                         Judgment Affirmed in Part,
                                                              Reversed in Part and
                                                                  Cause Remanded

PRESTON, P.J. and WILLAMOWSKI, J., concur.

/jlr




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