[Cite as State v. Saenz,
2014-Ohio-1408.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
: Hon. Patricia A. Delaney, J.
-vs- :
:
MICHAEL SAENZ : Case No. 13-CA-70
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 12 CR 00642
JUDGMENT: Affirmed
DATE OF JUDGMENT: March 26, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellee
BRIAN T. WALTZ THOMAS S. GORDON
20 South Second Street 8026 Woodstream Drive, NW
4th Floor Canal Winchester, OH 43110
Newark, OH 43055
Licking County, Case No. 13-CA-70 2
Farmer, J.
{¶1} On December 12, 2012, a search warrant was executed on the home of
appellant, Michael Saenz. A large marijuana growing operation was discovered.
{¶2} On December 21, 2012, the Licking County Grand Jury indicted appellant
on one count of possessing marijuana in violation of R.C. 2925.11 and one count of
cultivating marijuana in violation of R.C. 2925.04. Each count carried a forfeiture
specification on numerous items, including appellant's residence.
{¶3} On April 5, 2013, appellant filed a memorandum contra to the forfeiture
specification.
{¶4} On July 2, 2013, appellant pled guilty as charged. Following the plea, the
trial court held a hearing on the forfeiture specification. By judgment entry filed July 5,
2013, the trial court merged the marijuana counts and sentenced appellant to four years
in prison and imposed a $7,500.00 fine. The trial court also found appellant's residence
was an instrumentality of the cultivation offense, and granted forfeiture of the items
listed in the indictment, including appellant's residence.
{¶5} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶6} "INSUFFICIENT EVIDENCE WAS PRESENTED TO SUPPORT THE
TRIAL COURT'S FORFEITURE ORDER."
II
{¶7} "THE FORFEITURE OF THE HOME IS EXCESSIVE IN PROPORTION
TO THE AMOUNT OF THE MANDATORY FINE LEVIED ON THE APPELLANT."
Licking County, Case No. 13-CA-70 3
I
{¶8} Appellant claims the forfeiture of his residence was against the sufficiency
of the evidence. We disagree.
{¶9} Appellant also argues the forfeiture of weapons and military equipment
was unwarranted. We note during the forfeiture hearing, appellant objected to the
forfeiture of only his residence (T. at 25-26):
MS. BURKETT: Your Honor, I believe that our legal argument is set
forth in the memorandum contra, and the issue - - the only factual issue
that we are disputing is whether or not the house was specifically
designed to be used for marijuana.
THE COURT: Okay.
MS. BURKETT: I'm not sure that the Court finds that an element
that it would consider in making its decision, but I'm prepared to offer
evidence in that regard if it does.
And I should not say the only. The second issue is how much
income he actually derived from that, it that's an important issue for the
Court in making a determination. Those are the two issues that Mr. Saenz
would testify to.
{¶10} In closing argument, defense counsel stated the following: "So I would ask
that the Court not grant the forfeiture as it is related to the home. We didn't put on any
Licking County, Case No. 13-CA-70 4
testimony specifically about the forfeiture of the weapons and are not specifically
arguing that those are not subject to forfeiture. Thank you." T. at 58.
{¶11} In his memorandum contra filed April 5, 2013, appellant stated the
following:
Now comes the defendant, by and through counsel, and
respectfully moves this Honorable Court to deny the State of Ohio request
that Mr. Saenz's residence be forfeited as a penalty herein. It is the
position of Mr. Saenz that the forfeiture now sought is unconstitutional
and, therefore, must be denied. Support for this position is provided in the
memorandum below.
{¶12} Although this assignment is worded to include other items, the only issue
via appellant's memorandum contra and the statements and arguments made during
the hearing is the forfeiture of the residence.
{¶13} R.C. 2981.05(A) authorizes the seizure of property that is subject to
forfeiture under R.C. 2981.02(A) which states the following in pertinent part:
(A) The following property is subject to forfeiture to the state or a
political subdivision under either the criminal or delinquency process in
section 2981.04 of the Revised Code or the civil process in section
2981.05 of the Revised Code:
Licking County, Case No. 13-CA-70 5
(3) An instrumentality that is used in or intended to be used in the
commission or facilitation of any of the following offenses when the use or
intended use, consistent with division (B) of this section, is sufficient to
warrant forfeiture under this chapter:
(a) A felony.
{¶14} R.C. 2981.02(B) mandates the following:
(B) In determining whether an alleged instrumentality was used in
or was intended to be used in the commission or facilitation of an offense
or an attempt, complicity, or conspiracy to commit an offense in a manner
sufficient to warrant its forfeiture, the trier of fact shall consider the
following factors the trier of fact determines are relevant:
(1) Whether the offense could not have been committed or
attempted but for the presence of the instrumentality;
(2) Whether the primary purpose in using the instrumentality was to
commit or attempt to commit the offense;
(3) The extent to which the instrumentality furthered the
commission of, or attempt to commit, the offense.
{¶15} Forfeiture is restricted to a proportionality test [R.C. 2981.09(A), (C) and
(D)]:
Licking County, Case No. 13-CA-70 6
(A) Property may not be forfeited as an instrumentality under this
chapter to the extent that the amount or value of the property is
disproportionate to the severity of the offense. The owner of the property
shall have the burden of going forward with the evidence and the burden
to prove by a preponderance of the evidence that the amount or value of
the property subject to forfeiture is disproportionate to the severity of the
offense.
(C) In determining the severity of the offense for purposes of
forfeiture of an instrumentality, the court shall consider all relevant factors
including, but not limited to, the following:
(1) The seriousness of the offense and its impact on the
community, including the duration of the activity and the harm caused or
intended by the person whose property is subject to forfeiture;
(2) The extent to which the person whose property is subject to
forfeiture participated in the offense;
(3) Whether the offense was completed or attempted.
(D) In determining the value of the property that is an
instrumentality and that is subject to forfeiture, the court shall consider
relevant factors including, but not limited to, the following:
(1) The fair market value of the property;
(2) The value of the property to the person whose property is
subject to forfeiture, including hardship to the person or to innocent
persons if the property were forfeited.
Licking County, Case No. 13-CA-70 7
{¶16} In its judgment entry filed July 5, 2013, the trial court went into great detail
about its reasoning in ordering the forfeiture:
By defendant's admission in 2012, he should have generated in
excess of $38,000.00 of profit from his cultivation operation. The
defendant pleaded guilty to a second degree offense of cultivation which
carries with it a mandatory fine of $7,500.00 and a maximum fine of
$15,000.
The defendant was charged and plead guilty to having over 16
pounds of marijuana in his basement.
The Court finds that the house at 1158 Louada Drive in Heath, Ohio
was an instrumentality of the cultivation offense. It was modified to permit
the growing operation. It was, by virtue of the crawl space dug out
underneath the house, that instrumentality that hid the operation from the
public and provided a safe place in which to conduct the cultivation
operation. The plumbing system had been modified to provide for the
cultivation operation and ventilation had been attached to the sewer to
further hide the operation. The upstairs of the home had extra tubing,
brand new and never yet used in order to either replace the existing tubing
or to expand the cultivation operation. The Court has considered the
factors set out in State v. Adams, 213-OH-1603, such as whether the
offense could not have been committed but for the presence of the house,
Licking County, Case No. 13-CA-70 8
whether the primary purpose in using the offense and the extent to which
the house furthered the commission of the offense.
The Court finds the offense could not have been committed without
the home and the opportunity for the crawl space to have been dug out
and that this home and crawl space facilitated and furthered the
commission of the offense. The primary purpose of the home may not
have been to commit the offense, but given the extent of the income
generated and the extra equipment in the bedrooms and the bathroom, it
was becoming the primary purpose of the home. No one else resided
there other than the defendant.
Based on the amount of income generated through the sales for
one year, let alone prior years, and the proportionality of those sales as
well as the maximum fine of $15,000.00 to the value of the house, the
Court cannot find that it is disproportionate not to forfeit the home. Earlier
cases, such as State v. Adams, supra, or State v. Ziepfel, 107 App. 3d
646 (1995) upheld forfeitures where the proportionate value of sales or
fines related to the value of the object forfeited were much greater. Other
cases in Ohio have permitted the forfeiture of homes ranging in values of
approximately $30,000.00 on the basis of a sale of merely $250. In the
present case, the defendant was illegally producing 30% of the value of
the asset annually.
The Court finds the house was the basis of operations for the
cultivation operation which was used to conceal his trafficking operations.
Licking County, Case No. 13-CA-70 9
His home was used as his shop to create the marijuana and was
obviously the base of operations for the cultivation.
{¶17} Despite this reasoning, appellant argues the forfeiture of his residence
fails under the "but for" language of R.C. 2981.02(B)(1). Appellant argues there were
many other places to grow marijuana other than the dug out crawl space of his
residence i.e., a backyard, woods, farmers' fields, parks, etc. Appellant's Brief at 11.
{¶18} Appellant testified the crawl space was originally used for storage, but
after he took ownership of the residence, he ran water pipes to the space to facilitate
cultivation and grew "anything" including marijuana. T. at 28-29. He was experimenting
with "hydroponics." T. at 29. He specifically designed the tubing and piping in the crawl
space to grow marijuana, and he installed a dehumidifier to facilitate the growth of
plants. T. at 33-34, 38.
{¶19} Appellant had very little means of support in regular employment. T. at
31-33. Appellant admitted his primary source of income was from marijuana that he
grew, and he sold approximately four ounces of marijuana from his plants every week.
T. at 35-37.
{¶20} In contrast to appellant's testimony, Newark Police Detective George
Romano, Jr. described the crawl space as follows (T. at 44-46):
The crawl space access was through the master bedroom closet,
approximately 24-by-24 square, covered with carpet, had its own door.
When you enter down into the crawl space, the first area that you come to
Licking County, Case No. 13-CA-70 10
appeared to be what we would call a cutting room, table set up, chairs set
up where you could harvest the plants, if you will, in a separate area.
There was additionally five-gallon buckets of soil. It appeared as if
an expansion process was going on as opposed to a wall, I couldn't say,
but there was buckets of soil. Looked like they were ready to go back to
the crawl space and outside.
There was two or three, depending upon how you looked at it,
separate grow rooms modified in homemade walls, if you will, 2-by-4
plywood, styrofoam-type construction with a white plastic covering over
the ceiling area, if you will, watering system within a hydroponic system.
He did have a recirculating system more along the lines for the chemicals
flowing through each of the watering tubes.
Not all the rooms were tied together, each room kind of controlled
itself; however, it appeared that the water that was going with the
chemicals was coming from a water line underneath the house there and
in a "T"-type fashion. What also appeared to us is that there was a
ventilation system to bring the odor and some of the heat off of the grow
room into the sewer system, so it was tied together in two parts there.
Approximately a half of the underneath of that had been dug out,
and the rest of it was traditional crawl space. Several cinder blocks that
appeared to be originally support structure for the residence had been
moved and stacked up. It did look as if there was going to be an
expansion in that not only with the soil coming out, upstairs there was the
Licking County, Case No. 13-CA-70 11
master bedroom, two bedrooms and a bathroom all that contained grow
equipment. In the current state that the downstairs was, the upstairs
tubes and the grow equipment was either replacements if something
broke, or to be used for another operation or an expansion.
{¶21} Appellant admitted to Detective Romano that he had been growing
marijuana since 2007 and lived on the profits from the growing operation. T. at 48-49.
{¶22} The trier of fact accepted the description of the residence, the amount of
marijuana seized, and appellant's admissions to the detective. The weight to be given
to the evidence and the credibility of the witnesses are issues for the trier of fact. State
v. Jamison, 49 Ohio St.3d 182 (1990). The trier of fact "has the best opportunity to view
the demeanor, attitude, and credibility of each witness, something that does not
translate well on the written page." Davis v. Flickinger,
77 Ohio St.3d 415, 418, 1997-
Ohio-260.
{¶23} Although appellant argues he could have grown marijuana elsewhere, the
evidence supports the finding that the total manufacture and design of the hidden crawl
space was for appellant's income producing product, marijuana. We find the forfeiture
does not fail the "but for" test. In addition, there is no evidence in the record of the
value of the residence. Appellant's only attempt at valuation was denied by the trial
court via an objection. T. at 42.
{¶24} Upon review, we find the trial court did not err in ordering the forfeiture of
the residence.
{¶25} Assignment of Error I is denied.
Licking County, Case No. 13-CA-70 12
II
{¶26} Appellant claims the forfeiture of his residence was excessive in
proportion to the amount of the mandatory fine. We disagree.
{¶27} The relevant portions of the proportionality statute, R.C. 2981.09, are cited
above.
{¶28} Appellant argues the maximum fine was $15,000.00, he was ordered to
pay $7,500.00, and the value of his residence exceeded $100,000.00. However, as
noted above, there is no evidence in the record of the value of the residence. T. at 42.
{¶29} As explained by our brethren from the Eleventh District in State v. Adams,
11th Dist. Ashtabula No. 2012-A-0025, 2013-Ohio-1603, ¶ 68:
In determining the proportionality of a forfeiture, many factors have
been applied. "[A] lower court's proportionality analysis ' … must
necessarily accommodate the facts of the case and weigh the seriousness
of the offense, including the moral gravity of the crime measured in terms
of the magnitude and nature of its harmful reach, against the severity of
the criminal sanction.' " State v. Scheibelhoffer, 11th Dist. No. 98–L–039,
1999 Ohio App. LEXIS 3094, *9,
1999 WL 476106 (June 30, 1999),
quoting Hill at 33–34, 635 N.E.2d 1248. This same proportionality
analysis has been applied following the amendment of the forfeiture law in
2007. See State v. Luong, 12th Dist. No. CA2011–06–110, 2012–Ohio–
4520, ¶ 53. Similarly, pursuant to R.C. 2981.09, "[i]n determining the
severity of the offense for purposes of forfeiture of an instrumentality, the
Licking County, Case No. 13-CA-70 13
court shall consider all relevant factors including, but not limited to, …
[t]he seriousness of the offense and its impact on the community,
including the duration of the activity and the harm caused or intended by
the person whose property is subject to forfeiture; … [t]he extent to
which the person whose property is subject to forfeiture participated in the
offense;… [and] [w]hether the offense was completed or attempted."
{¶30} It is appellant's burden to establish a disproportionate sentence. R.C.
2981.09(A). Appellant admitted to Detective Romano that he had been growing
marijuana since 2007, and the cultivation of marijuana was his sole source of income
and support. T. at 48-49.
{¶31} Upon review, we find nothing in the record to establish a punitive or
disproportionate taking. The only fine imposed was the $7,500.00 mandatory fine.
{¶32} Assignment of Error II is denied.
Licking County, Case No. 13-CA-70 14
{¶33} The judgment of the Court of Common Pleas of Licking County, Ohio is
hereby affirmed.
By Farmer, J.
Hoffman, P.J. and
Delaney, J. concur.
SGF/sg 303
