[Cite as State v. McBride, 2015-Ohio-5184.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                            CASE NO. 1-15-48

        v.

CODY L. MCBRIDE,                                       OPINION

        DEFENDANT-APPELLANT.




                   Appeal from Allen County Common Pleas Court
                            Trial Court No. CR 2015 0034

                       Judgment Reversed and Cause Remanded

                          Date of Decision: December 14, 2015




APPEARANCES:

        Gregory W. Donohue for Appellant

        Jana E. Emerick for Appellee
Case No. 1-15-48


SHAW, J.

        {¶1} Defendant-appellant Cody L. McBride (“McBride”) brings this appeal

from the June 30, 2015 judgment of the Allen County Common Pleas Court

denying his “Motion for Order Compelling Return of Motor Vehicle without

Requiring Fees.”

                           Relevant Facts and Procedural History

        {¶2} On November 30, 2014, McBride was found “mostly naked” with a

14-year-old male in a vehicle in the parking lot of a closed business.1 The vehicle,

which was McBride’s, was searched with consent and the officers located used

and unused condoms inside. The vehicle was seized and impounded.

        {¶3} On January 15, 2015, McBride was indicted for four counts of

Unlawful Sexual Conduct with a Minor in violation of R.C. 2907.04(A), all

felonies of the fourth degree, and two counts of Illegal Use of a Minor in Nudity-

Oriented Material or Performance in violation of R.C. 2907.323(A)(3), both

felonies of the fifth degree. McBride originally pled not guilty to the charges.

        {¶4} On February 27, 2015, McBride pled guilty to two counts of Unlawful

Sexual Conduct with a Minor and one count of Illegal Use of a Minor in Nudity-

Oriented Material or Performance. (Doc. No. 27). The remaining charges against

him were dismissed.


1
  The indictment states that the underage male was older than 13 but younger than 16. The sentencing
transcript specified that he was specifically 14 at the time of the offense. (Apr. 15, 2015, Tr. at 3).

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       {¶5} On March 30, 2015, McBride filed a “Motion for Release of

Defendant’s Impounded Property,” in which he requested that his 1998 Chrysler

Concord and his cell phone that had been seized be returned to him. (Doc. No.

35).

       {¶6} On April 15, 2015, the matter proceeded to sentencing. McBride was

ultimately sentenced to 3 years of community control and he was classified as a

Tier II sex offender. The trial court then proceeded to address McBride’s motion

for release of his property. The State did not oppose McBride’s motion, though

the State specified that the pictures on his phone should be wiped before returning

it to him. Based on the arguments and the State’s concession, the trial court

ordered McBride’s vehicle and his cell phone to be released. A judgment entry

reflecting McBride’s sentence was filed April 15, 2015, and a separate judgment

entry ordering the return of McBride’s property was filed that same date.

       {¶7} On April 20, 2015, McBride filed a “Motion for Order Compelling

Return of Motor Vehicle without Requiring Fees.” (Doc. No. 42). In the motion

McBride contended that when he went to retrieve his vehicle, Army’s Auto, who

was holding the vehicle for the Shawnee Township Police Department, would not

return his vehicle until the towing and storage fees were paid by McBride. (Id.)

McBride argued that the vehicle was being held as evidence and the police




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department should be responsible for the fees as part of the cost of “doing

business.” (Id.)

       {¶8} On May 21, 2015, the trial court held a brief hearing on McBride’s

motion.   At the hearing the State and McBride agreed to submit a written

stipulation of facts from which the trial court could make a legal determination as

to who was responsible for the storage costs of McBride’s vehicle.

       {¶9} On June 4, 2015, the State and McBride filed the joint stipulation of

facts, which contained the information that McBride was located in the vehicle in

question with an underage male. (Doc. No. 54). The stipulation of facts indicated

that the vehicle was seized and impounded as evidence by the Shawnee Township

Police Department and the police department then placed the vehicle in the

custody of Army’s Auto. (Id.) In addition, the stipulation of facts indicated that

the Shawnee Township Police Department gave a release to McBride, who then

took the release to Army’s Auto, but Army’s Auto refused to return the vehicle

without payment of “substantial storage fees.” (Id.)

       {¶10} Based on these facts, the trial court issued a judgment entry on June

30, 2015, denying McBride’s motion. In denying the motion, the trial court

reasoned that the vehicle was a “key instrumentality used by the Defendant to

commit the crimes in question.” (Doc. No. 54). Further, the trial court held that

McBride “has not established that the State should be required to pay the impound


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fees for storing the vehicle at Army’s Auto. * * * [Therefore, McBride] must pay

any associated costs to Army in order to secure the release of his vehicle.” (Doc.

No. 56).

       {¶11} It is from this judgment that McBride appeals, asserting the

following assignment of error for our review.

                    ASSIGNMENT OF ERROR
       THE TRIAL COURT ERRED IN OVERRULING
       DEFENDANT-APPELLANT’S MOTION FOR AN ORDER
       COMPELLING    THE   RETURN    OF  DEFENDANT-
       APPELLANT’S MOTOR VEHICLE, HELD AS EVIDENCE
       BY   THE   STATE,  WITHOUT    REQUIRING   THE
       DEFENDANT-APPELLANT TO PAY THE STORAGE FEES
       OF THE POLICE DEPARTMENT, FOR SAID MOTOR
       VEHICLE, IN VIOLATION OF THE UNITED STATES
       CONSTITUTION’S FOURTH, FIFTH AND FOURTEENTH
       AMENDMENTS, AND OF THE OHIO CONSTITUTION.

       {¶12} In McBride’s assignment of error, he argues that the trial court erred

in denying his “Motion for Order Compelling Return of Motor Vehicle without

Requiring Fees.” Specifically, McBride contends that the State never requested an

order from the trial court for McBride to have to pay for the storage of his vehicle

prior to the trial court ordering the vehicle released at the sentencing hearing and

thus McBride should not be responsible for paying for the storage, particularly

since the State claimed it needed the vehicle for evidence and had not filed for

forfeiture.




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       {¶13} At the outset, we would note that the State never filed for either

criminal or civil forfeiture of McBride’s vehicle pursuant to R.C. 2981.04 or R.C.

2981.05. McBride’s vehicle was simply seized and impounded “as evidence.”

Nevertheless, the State argues that a trial court can order a criminal defendant to

pay storage fees under one provision of the forfeiture statutes, R.C. 2981.11,

which reads, “Any property that has been * * * seized pursuant to a search

warrant, or otherwise lawfully seized or forfeited and that is in the custody of a

law enforcement agency shall be kept safely by the agency, pending the time it no

longer is needed as evidence or for another lawful purpose[.]”             While R.C.

2981.11 allows law enforcement to retain property pending its use as evidence, the

statute does not contain any provision authorizing a trial court to order a defendant

to pay the costs of storing a vehicle that is not subject to forfeiture.

       {¶14} The State argues that pursuant to several cases out of the Second

District Court of Appeals, a trial court does have discretion to impose fees for the

storage of vehicles kept as evidence under R.C. 2981.11. See Dayton Police Dept.

v. Grigsby, 2d Dist. Montgomery No. 23362, 2010-Ohio-2504; Dayton Police

Dept. v. Thomas, 2d Dist. Montgomery No. 23289, 2010-Ohio-1506; Dayton

Police Dept. v. Pitts, 2d Dist. Montgomery No. 23213, 2010-Ohio-1505, ¶ 14. In

all three of the cases cited by the State, the Second District affirmed a trial court’s

decision ordering a police department to pay storage fees of a vehicle pursuant to


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R.C. 2981.11 when the State had filed for forfeiture of the vehicles but the

vehicles in question belonged to an innocent third-party who was not the criminal

defendant. The State contends that Grigsby, Thomas, and Pitts, stand for the

proposition that a trial court can order a party to pay storage fees under R.C.

2981.11, even though the statute is silent on the matter, and that a trial court has

discretion as to who is required to pay those storage fees.

       {¶15} What the State ignores in citing Grigsby, Thomas, and Pitts, is that

the State filed for forfeiture in all three of those cases. The order for the police

department to pay storage fees under R.C. 2981.11 came after a forfeiture hearing

was held, and the trial court determined that the police department did not carry its

burden to prove by a preponderance of the evidence that it was entitled to

forfeiture. When the police department did not carry its burden, the trial court

ordered the police department to pay storage fees.

       {¶16} Thus unlike in the case before us, in Grigsby, Thomas, and Pitts, the

State had actually filed for forfeiture of the vehicle in question before storage costs

were ultimately ordered to the police department under R.C. 2981.11. Grigsby at

¶¶ 3-5, Pitts at ¶ 3, Thomas at ¶¶ 3-5. Therefore none of the cases cited by the

State indicate that a trial court has discretion to order storage fees against a

defendant pursuant to R.C. 2981.11 where actual forfeiture was never sought, and

no forfeiture hearing was held. We can find no cases indicating that a trial court


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has authority to impose storage fees under R.C. 2981.11 absent some actual

forfeiture proceedings and the statute itself contains no such provision allowing a

trial court to order storage fees at all.

       {¶17} Nevertheless, even assuming that because R.C. 2981.11 says nothing

about storage fees the statute does not bar a trial court in its discretion from

imposing storage fees in this case, it is important to note that the State made no

request prior to the trial court ordering McBride’s vehicle released for McBride to

pay for its storage costs. Before the sentencing hearing McBride had filed a

motion seeking the return of his vehicle. At the sentencing hearing, the State did

not oppose McBride’s motion, specifically stating that “the car itself is no longer

needed as evidence.” (Apr. 15, 2015, Tr. at 39). At that time the State did not

request that any conditions be placed on the return of McBride’s vehicle and the

State did not request that McBride be responsible for any storage fees associated

with the vehicle. The State did, however, explicitly request that a condition be

placed on the return of McBride’s cell phone. McBride had also asked for the

return of the cell phone when requesting his vehicle, and the State indicated that

the phone’s return should be subject to any photographs being “wiped.” (Id.) This

condition was explicitly handwritten into the judgment entry. Thus the State did

place a condition upon return of the phone, but it placed no such conditions on the




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return of McBride’s vehicle.       As a result, the trial court’s judgment entry

ultimately ordered McBride’s vehicle returned to him without any conditions.

       {¶18} After McBride attempted to recover his vehicle from Army’s Auto

and was told that he had to pay storage fees he filed a motion with the trial court

seeking to have it released without the fees. It was only at that time that the State

attempted to assert that McBride should be responsible for the storage fees. The

trial court ultimately accepted the State’s argument that R.C. 2981.11 allowed it to

order storage fees in this case and found that McBride’s vehicle was a “key

instrumentality” in the offense.

       {¶19} We note that the trial court’s reliance on the vehicle being a “key

instrumentality” is questionable as this is phrasing that is directly related to the

actual forfeiture of a vehicle pursuant to R.C. 2981.01-.05. There is no indication

that the “instrumentality” language specifically related to vehicle forfeiture is

implicated by R.C. 2981.11, which covers the “safekeeping of property.” The

word “instrumentality” does not appear at all in R.C. 2981.11.

       {¶20} However, even assuming that the trial court had some discretion to

make the determination that being an “instrumentality” allows for a trial court to

order McBride to pay for storage of the vehicle under R.C. 2981.11, we do have

some reservations regarding the actual nexus of the “instrumentality” to the

alleged crimes. The vehicle itself was the “location” where the Unlawful Sexual


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Conduct with a Minor related to Count 1 occurred. There was no direct connection

or reference to the vehicle pertaining to any element of the offense in this case.

While the first count of Unlawful Sexual Conduct with a Minor did occur in the

vehicle, it is not clear that the offense could not have been committed but-for the

vehicle, as the other count of Unlawful Sexual Conduct with a Minor alleged

sexual contact occurring somewhere in a two month span leading up to the date

McBride was found in the vehicle with the underage male. It is not clear in the

record that this conduct all occurred in McBride’s vehicle, or only occurred there.

       {¶21} Nevertheless, even conceding that McBride’s vehicle could have

been classified as an “instrumentality” pursuant to the forfeiture statutes under

other factors, it remains unclear why the State needed McBride’s entire vehicle for

“evidence” as opposed to merely photographing it, taking test samples from it

and/or taking the used and unused condoms inside of it. The State does not clarify

to the trial court or this Court why specifically it needed continued and extended

possession of the entire vehicle to prove its case against McBride.

       {¶22} However, giving all possible deference to the trial court’s decision

we will assume for the moment that the entire vehicle was needed for evidence,

that it did constitute an instrumentality, and that R.C. 2981.11 does allow a trial

court to charge a defendant for storage of a vehicle that is going to be used as

evidence against him but was never subject to forfeiture proceedings.          Even


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assuming all of these things, we have a significant concern about the authority and

jurisdiction of the trial court to effectively enter a money judgment in a criminal

case in favor of Army’s Auto, a third-party not otherwise involved in the case, after

McBride’s criminal case was effectively concluded, without the State ever

requesting McBride to pay for the vehicle prior to sentencing.

       {¶23} We note that at the sentencing hearing, the State did request that

McBride pay court costs and costs of prosecution, and the trial court ordered

McBride to pay those costs. However, this Court has specifically noted that the

“costs of prosecution” does not encompass towing and storage of a vehicle being

held for evidence, and that a trial court cannot award restitution to a towing

service or to a Sherriff’s Department. State v. Christy, 3d Dist. Wyandot No. 16-

04-04, 2004-Ohio-6963, ¶¶ 15-17, 21-23. In fact, in Christy we reversed a trial

court’s decision ordering restitution for towing and storage under plain error.

       {¶24} It would seem that the trial court’s order for McBride to pay for

storage of his vehicle, which was never subject to forfeiture, is similar to the trial

court ordering restitution for storage after McBride was already sentenced. First,

no such restitution could be ordered under Christy as Army’s Auto and the

Sherriff’s Department were not victims of the crime. Second, even if it could, the

trial court could not impose additional sanctions upon McBride after he was

sentenced. Similarly, we would note that R.C. 2929.18, which governs financial


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sanctions, contains no provision authorizing the trial court to order McBride to pay

storage fees as part of the financial sanctions of his criminal sentence. Third, the

trial court had already issued a final judgment of sentence ordering McBride’s

vehicle to be released to him, placing no conditions on that release and the State

had no objections to the release.

       {¶25} This Court has quoted language in the past that statutes “ ‘in

derogation of private property rights’ are strictly construed against the state.”

State v. McMeen, 3d Dist. Seneca No. 13-14-26, 2014-Ohio-5482, ¶ 13, quoting

State v. Brimacombe, 195 Ohio App.3d 524, 2011-Ohio-5032, ¶ 32 (6th Dist.),

quoting State v. Lilliock, 70 Ohio St.2d 23, 26 (1982). Under the facts and

circumstances of this particular case, we cannot find that the trial court had

authority to issue a post-sentence order for McBride to pay storage fees for his

vehicle where the vehicle was being held for evidence by the State, where the

vehicle was not subject to forfeiture, and where no conditions were placed on the

release of the vehicle in the final judgment of sentence. For all of these reasons

we find that the trial court erred in ordering McBride to pay for the storage fees in

this particular case. Therefore McBride’s assignment of error is sustained.

       {¶26} For the foregoing reasons the assignment of error is sustained and the

judgment of the Allen County Common Pleas Court is reversed. This cause is




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remanded to the trial court for further proceedings and to order the State to pay

storage costs of McBride’s vehicle.

                                                        Judgment Reversed and
                                                             Cause Remanded

ROGERS, P.J. and PRESTON, J., concur.

/jlr




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