State v. Hill - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
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The State of Ohio, Appellee, v. Hill, Appellant.
[Cite as State v. Hill (1994), Ohio St.3d .]
Criminal law -- Drug offenses -- Forfeiture of property
relating to felony drug abuse offense -- R.C. 2925.42 --
Prior to entering order of forfeiture, trial court must
make an independent determination whether forfeiture of
that property is an "excessive fine" prohibited by the
Excessive Fine Clauses of the Ohio and United States
Constitutions.
---
Forfeiture of property, pursuant to R.C. 2925.42, is a
form of punishment for a specified offense and, therefore,
is a "fine" for purposes of Section 9, Article I of the
Ohio Constitution and the Eighth Amendment to the United
States Constitution. Accordingly, prior to entering an
order of forfeiture, the trial court must make an
independent determination whether forfeiture of that
property is an "excessive fine" prohibited by the
Excessive Fine Clauses of the Ohio and United States
Constitutions.
---
(No. 93-715 -- Submitted April 20, 1994 -- Decided August
3, 1994.)
Appeal from the Court of Appeals for Lorain County, No.
92CA005332.
Appellant, Frederick A. Hill, is the owner of various
rental properties. One of his properties is an apartment
complex located at 47 Morgan Street, Oberlin, Ohio. The
complex consists of two buildings. There is a building which
contains seven apartment units and a separate garage building
containing an apartment where appellant resides. According to
appellant, the complex is valued at approximately $110,000.
Benjamin Newbauer, while a tenant at the 47 Morgan Street
apartment complex, asked appellant if he could use an area in
the basement of the complex, which apparently was adjacent to
Newbauer's apartment, to grow marijuana. Newbauer informed
appellant that he intended to grow the marijuana solely for his
personal use. Appellant gave Newbauer permission to grow the

plants.
On February 27, 1991, a police officer for the village of
Grafton executed a search warrant at the 47 Morgan Street
apartment complex. It appears that the search uncovered
eighty-five marijuana plants. The total weight of marijuana
seized was 6,172 grams. Subsequently, Newbauer pleaded guilty
to trafficking in marijuana. He was placed on probation and
apparently ordered to pay a mandatory fine of $2,000.
Appellant also was indicted for trafficking in marijuana
in violation of R.C. 2925.03(A)(3). The grand jury further
concluded that the apartment complex was owned by appellant,
and that it was used in the commission of the offense and, as
such, may be subject to forfeiture pursuant to R.C. 2925.42.
The case proceeded to a jury trial.
At trial, Newbauer was a witness for appellee, the state
of Ohio. Newbauer testified that initially he intended to grow
marijuana solely for his personal use. However, when more
seeds germinated than anticipated, Newbauer changed his mind.
Newbauer then decided to sell some of the marijuana, give a
portion to friends and retain some for his personal use. The
state essentially attempted to demonstrate that appellant gave
Newbauer permission to grow the marijuana plants, that
appellant knew the quantity of plants being grown, and that he
aided and abetted Newbauer in the illegal operation.
With regard to proving that appellant assisted Newbauer,
the state emphasized that appellant allowed his credit card to
be used to order some equipment needed to grow the marijuana.
Newbauer testified that appellant actually ordered the
equipment and that he (Newbauer) agreed to reimburse
appellant. Newbauer also testified he owed appellant $700.
The record further indicates appellant paid certain utility
bills for Newbauer's apartment, and that a note was found which
suggested Newbauer may have given appellant directions on how
to care for the plants in Newbauer's absence.
Appellant admitted that he gave Newbauer permission to
grow marijuana for Newbauer's personal use. It is undisputed
appellant knew the plants were being grown by Newbauer and that
appellant had even seen the plants on various occasions. The
mainstay of appellant's defense, however, was that he did not
know Newbauer had changed his mind and intended to sell some of
the marijuana or give some of it away. Further, when
questioned about the use of his credit card in acquiring
certain equipment, appellant maintained he owed Newbauer money
for work Newbauer had performed as a handyman in the apartment
complex. Newbauer testified that he had worked for appellant.
Appellant admitted that he allowed Newbauer to use his credit
card, but denied he (appellant) actually ordered the
equipment. In addition, appellant denied that he had ever
cared for the plants or had ever received watering instructions
from Newbauer.
The jury found appellant not guilty of trafficking in
marijuana, but guilty of complicity to the offense charged in
violation of R.C. 2923.03 and 2925.03(A)(3), a fourth-degree
felony. The jury further found that the apartment complex
owned by appellant was used to commit or to facilitate the
commission of the offense. Subsequently, appellant was
sentenced to one year in prison, fined $1,000 and, pursuant to

R.C. 2925.42, ordered to forfeit the 47 Morgan Street apartment
complex. Thereafter, pursuant to Crim.R. 33, appellant filed a
motion for a new trial. The trial court denied his request.
On appeal, the Court of Appeals for Lorain County affirmed
appellant's conviction and sentence. The court of appeals also
affirmed the forfeiture of appellant's apartment complex.
The cause is now before this court pursuant to the
allowance of a motion for leave to appeal.

Gregory A. White, Lorain County Prosecuting Attorney, and
Jonathan E. Rosenbaum, Assistant Prosecuting Attorney, for
appellee.
Gold, Rotatori & Schwartz Co., L.P.A., and Niki Z.
Schwartz; and Robert A. Nagy, for appellant.

Douglas, J. Appellant raises various propositions of
law for our determination. Appellant essentially challenges
the jury's finding of guilt, the sentence imposed by the trial
court, and the forfeiture of his apartment complex.
I
Finding of Guilt
As a threshold matter, appellant assails his conviction of
complicity to trafficking in marijuana. R.C. 2923.03(A)(2)
provides that "[n]o person, acting with the kind of culpability
required for the commission of an offense, shall * * * [a]id or
abet another in committing the offense * * *." R.C.
2925.03(A)(3) sets forth that "[n]o person shall knowingly * *
* [c]ultivate, manufacture, or otherwise engage in any part of
the production of a controlled substance * * *." R.C.
2925.03(F), however, provides a person, charged for possession
of a bulk amount of a controlled substance or for cultivating
marijuana, with an affirmative defense if the person can
demonstrate that the possession or cultivation was solely for
his or her personal use.
Appellant contends that the evidence demonstrated he was
only aware that Newbauer intended to grow the marijuana for
Newbauer's personal use. Appellant further claims he could not
have known that Newbauer intended to sell the drug because of
his (appellant's) ignorance of the drug and, based on his
naivety, would not have known how many marijuana plants would
be appropriate for personal use. Therefore, appellant claims
there was no evidence from which a reasonable jury could have
concluded that he shared Newbauer's intent to traffic in
marijuana.
The state disagrees with appellant's contentions and
raises the issue that appellant, as an aider and abettor, is
not entitled to the personal-use defense set forth in R.C.
2925.03(F). The state contends that such a defense is
"personal" and, consequently, Newbauer, as the principal
offender, would be the only person entitled to claim this
defense.
It is obvious that appellant did not assert a "personal
use" defense regarding his possible consumption of the drug.
Rather, appellant attempted to demonstrate that he acquiesced
in Newbauer's original intent allowing Newbauer to grow
marijuana for Newbauer's personal use. The state's argument,
if followed to its extreme, would allow a defendant who has

been charged with aiding and abetting to be prosecuted for
assisting a principal in an act which the principal is
privileged to do. This would be comparable to allowing a
defendant to be convicted for aiding and abetting without proof
that a principal offense was committed. We have held that
although the state need not establish the principal's identity,
it must, at the very least, prove that a principal committed
the offense. State v. Perryman (1976), 49 Ohio St.2d 14, 3
O.O.3d 8, 358 N.E.2d 1040, paragraph four of the syllabus.
We believe that appellant was entitled to raise the
defense provided for in R.C. 2925.03(F), particularly where, in
a case such as this, a complicitor can be liable to prosecution
and punishment as a principal offender. See R.C. 2923.03(F).1
The state's theory was that appellant aided and abetted
Newbauer in cultivating the marijuana. Thus, it is only
reasonable to conclude that a defendant who has been charged
with complicity to trafficking in marijuana may, under proper
circumstances, be entitled to the personal-use defense set
forth in R.C. 2925.03(F).
In the case at bar, the jury was instructed by the trial
court that in order to find appellant guilty of complicity to
trafficking in marijuana, it must determine that appellant
knowingly aided or abetted Newbauer in cultivating or
manufacturing marijuana, or that appellant engaged in any part
of the production of the drug. Further, the jury was charged
that "* * * if you find that this [d]efendant had a good faith
belief that Benjamin Newbauer was merely growing marijuana at
47 Morgan Street solely for Benjamin Newbauer's personal use,
then the [s]tate has not proven the element of knowingly."
The jury, having been properly instructed on the law,
returned a verdict of guilty and apparently rejected
appellant's defense. Resolution of these issues was clearly
within the province of the jury which heard all the evidence
and observed the demeanor and candor of the witnesses. The
court of appeals stated, and we agree, that "[t]he record in
this case shows that the jury could infer from the sheer volume
of marijuana and the number of plants confiscated that
appellant must have known that Newbauer intended to sell the
drug." There was sufficient evidence to support the jury's
finding of guilt and, accordingly, we are unwilling to disturb
the jury's determination on these matters.
II
The Sentence
Appellant also challenges the trial court's imposition of
a one-year prison sentence. Appellant claims that by not
pleading guilty to the offense he was punished for exercising
his constitutional right to a jury trial. Appellant's
underlying criticism is that the trial court abused its
discretion in giving him a harsher sentence than that given to
Newbauer.
There is no question that on its face the sentence
received by appellant, when compared to Newbauer's punishment,
is disproportionate. Given the fact that Newbauer received
probation, appellant's one-year prison sentence does appear to
be harsh. However, as a general rule, an appellate court will
not review a trial court's exercise of discretion in sentencing
when the sentence is authorized by statute and is within the

statutory limits. See, generally, Toledo v. Reasonover (1965),
5 Ohio St.2d 22, 24, 34 O.O.2d 13, 14, 213 N.E.2d 179,
180-181. See, also, State v. Cassidy (1984), 21 Ohio App.3d
100, 102, 21 OBR 107, 108-109, 487 N.E.2d 322, 323; State v.
Burge (1992), 82 Ohio App.3d 244, 249, 611 N.E.2d 866, 869; and
State v. Grigsby (1992), 80 Ohio App.3d 291, 302, 609 N.E.2d
183, 190.
In the case sub judice, the trial court followed the
sentencing scheme set forth by the General Assembly and
apparently elected the median imprisonment permitted for a
fourth-degree felony. See R.C. 2929.11(D)(2). The sentence
was within the statutory limits and, for this reason, we will
not interfere with the trial court's exercise of discretion.
We do respectfully suggest, however, that upon remand, as
provided for infra, the trial court take into consideration our
stated feelings with regard to the sentence given appellant and
consider all the options available to the court in sentencing,
including, but not limited to, shock probation. In making such
observation, we are mindful that any suspension of sentence and
terms upon which a suspension is granted are clearly within the
discretion of the trial court.
III
Forfeiture
As a final matter, appellant contests the forfeiture of
his apartment complex. Appellant argues that forfeiture of his
entire property does not fall within the scope of
R.C.2925.42(A)(1)(b) and does not withstand scrutiny under
Section 9, Article I of the Ohio Constitution or the Eighth
Amendment to the United States Constitution.
A
R.C. 2925.42(A)(1)(b)
R.C. 2925.42 permits forfeiture of certain property in
connection with specific felony drug abuse offenses. The
portion of the statute relevant herein provides that:
"(A)(1) In accordance with division (B) of this section,
a person who is convicted of or pleads guilty to a felony drug
abuse offense, * * * loses any right to the possession of
property and forfeits to the state any right, title, and
interest he may have in that property if * * *:
"* * *
"(b) The property was used or intended to be used in any
manner to commit, or to facilitate the commission of, the
felony drug abuse offense or act.
"(2) All right, title, and interest of a person in
property described in division (A)(1) of this section vests in
the state upon the person's commission of the felony drug abuse
offense of which he is convicted or to which he pleads guilty
and that is the basis of the forfeiture * * *." (Emphasis
added.)
Appellant contends that forfeiture of his entire apartment
complex was beyond the intended scope of R.C. 2925.42(A)(1)(b),
in that only a portion of the complex was actually involved in
the illegal drug activity. In support of his position,
appellant argues that R.C. 2925.42(A)(1)(b) is patterned after
Section 853(a)(2), Title 21, U.S. Code,2 the federal criminal
forfeiture section of the Comprehensive Drug Abuse Prevention
and Control Act. Therefore, argues appellant, because Section

853(a)(2) contains the language "or part," which language has
been interpreted to allow forfeiture of the entire property,
and because such language is absent from Ohio's criminal
forfeiture statute, the General Assembly did not intend that an
entire parcel be forfeited when only a portion thereof has been
used to commit the offense. Appellant urges that "[t]he
omission of this language therefore evidences a deliberate
deletion, rather than inartful phraseology which simply fails
to express the legislature's intent."
While there are similarities and obvious differences
between R.C. 2925.42 and the federal scheme, we need not resort
to federal law, or a federal court's interpretation of a
federal statute for that matter, to construe our own criminal
forfeiture statute. At issue here is state law and, absent a
clear pronouncement from Congress preempting the field, it will
be given independent construction. See, generally, Arnold v.
Cleveland (1993), 67 Ohio St.3d 35, 616 N.E.2d 163.
We begin our analysis of R.C. 2925.42(A)(1)(b) with the
well-settled proposition that a criminal statute is to be
strictly construed against the state. State v. Hooper (1979),
57 Ohio St.2d 87, 89, 11 O.O.3d 250, 251, 386 N.E.2d 1348,
1350. This is also true with regard to a criminal statute that
involves a penalty. R.C. 2901.04(A). Further, the law does
not favor forfeiture. State v. Lilliock (1982), 70 Ohio St.2d
23, 25-26, 24 O.O.3d 64, 65-66, 434 N.E.2d 723, 725. See,
also, Ohio Dept. of Liquor Control v. Sons of Italy Lodge 0917
(1992), 65 Ohio St.3d 532, 534, 605 N.E.2d 368, 369 ("The law
requires that we favor individual property rights when
interpreting forfeiture statutes."). However, we are also
mindful of the rule that legislative intent is to be drawn from
the explicit terms of the statute. Moreover, in assessing the
application of a forfeiture statute, we must keep in mind the
purpose for which the legislation was enacted. State v.
Baumholtz (1990), 50 Ohio St.3d 198, 202, 553 N.E.2d 635, 638.
The General Assembly, in enacting R.C. 2925.42(A)(1)(b),
established specific requirements. First, it is "property"
which is subject to forfeiture. "Property," as defined in R.C.
2925.42(A)(1)(b), is all-inclusive, encompassing both real and
personal property. See R.C. 2901.01(J)(1). Second, in order
for "the property" to be subject to forfeiture, that particular
property must have been "used" or intended to be used in any
manner to commit or "facilitate" the illegal activity. Black's
Law Dictionary (6 Ed.1990) 1541, defines "use" as "* * * to
avail oneself of; to utilize; to carry out a purpose or action
by means of; to put into action or service, especially to
obtain an end." "Facilitate" is defined as "[t]o free from
difficulty or impediment." Id. at 591. Further,
"facilitation" is defined as "* * * the act of making it easier
for another to commit crime * * *." Id.
By its very terms, the statutory provision at issue
incorporates a proportionality requirement. The state had the
initial burden of proving by a preponderance of the evidence
that the apartment complex was used to facilitate the illegal
activity. Notwithstanding, appellant claims that the portion
of the complex where the marijuana was actually grown was the
area limited to forfeiture or, alternatively, a monetary value
should have been placed on that area because it "constitutes

the statutory outer limits of permissible forfeiture in this
case." Given the situation here, we disagree.
The language of R.C.2925.42(A)(1)(b) is clear. The
statute establishes that in certain instances a person who is
convicted of a specific felony drug abuse offense forfeits all
right, title and interest he or she may have in property if
that property was an integral part of the specified illegal
activity. Most notably, the statute requires that the property
be forfeited -- not a monetary assigned value to that
property. Obviously, R.C. 2925.42 was enacted to combat
various felony drug offenses or acts and, as a means to achieve
this goal, the General Assembly intended to allow the state to
take possession of those instrumentalities that were connected
with the illicit conduct. R.C.2925.42 was enacted with various
purposes in mind. Not only does forfeiture function as a
penalty to those who choose to commit certain crimes, but it
dispossesses a defendant of the means to commit further
offenses. Further, forfeiture may also help the state defray
expenses associated with the investigation and prosecution of
those offenses.
Following the jury's determination that appellant was
guilty of complicity to trafficking in marijuana, the trial
court instructed the jury with regard to the additional issue
of forfeiture. After thoroughly reviewing the record, we are
convinced that the jury's response to the special
interrogatory, finding that the apartment complex was used to
commit or to facilitate the offense of complicity to
trafficking in marijuana, was proper. The jury was presented
with sufficient evidence and, if believed, supported a finding
that the complex provided a means to foster, shelter and
conceal the illegal operation. As such, we will not disturb
the findings of the jury.
B
Constitutionality of the Forfeiture
Appellant also maintains that the forfeiture of his entire
interest in the apartment complex violated the Excessive Fines
Clauses of Section 9, Article I of the Ohio Constitution and
the Eighth Amendment to the United States Constitution.
Appellant's contention is predicated on two recent decisions
from the United States Supreme Court -- Austin v. United States
(1993), 509 U.S. , 113 S.Ct. 2801, 125 L.Ed.2d 488; and
Alexander v. United States (1993), 509 U.S. , 113 S.Ct.
2766, 125 L.Ed.2d 441.
In Austin, the federal government, pursuant to Sections
881(a)(4) and (7), Title 21, U.S. Code, sought forfeiture of a
defendant's mobile home and auto body shop following a guilty
plea by the defendant in a South Dakota state court for
possessing cocaine with the intent to distribute. The
defendant argued that forfeiture of his properties would
violate the Eighth Amendment.
As a threshold matter, the court determined that the
Excessive Fines Clause is applicable to criminal and civil
cases and, further, ascertained that its purpose is to prevent
government from abusing its power to punish. Id. at , 113
S.Ct. at 2805, 125 L.Ed.2d at 497. The court, after exploring
historical aspects of forfeiture and the legislative history of
the federal provisions at issue, concluded that the in rem

forfeiture under these provisions serves not simply remedial
goals but also those of punishment and deterrence and,
therefore, is subject to the limitation of the Excessive Fines
Clause. Id. at , 113 S.Ct. at 2812, 125 L.Ed.2d at 505-506.
In Alexander, the defendant was convicted in a federal
district court of obscenity offenses and Racketeer Influenced
and Corrupt Organizations Act ("RICO") violations. In addition
to imposing a six-year prison term and a $100,000 fine, the
court ordered the defendant to forfeit his wholesale and retail
businesses and approximately $9,000,000 acquired through
racketeering activity. The court of appeals affirmed. The
appellate court did not consider whether the forfeiture
provision resulted in an "excessive" penalty within the meaning
of the Eighth Amendment.
On appeal, the United States Supreme Court held, inter
alia, that "[t]he in personam criminal forfeiture at issue here
is clearly a form of monetary punishment no different, for
Eighth Amendment purposes, from a traditional 'fine.' Accord
Austin, supra. Accordingly, the forfeiture in this case should
be analyzed under the Excessive Fines Clause." (Footnote
omitted.) Alexander, supra, at , 113 S.Ct. at 2775-2776,
125 L.Ed.2d at 455.
The tone of the court in Austin and Alexander, and other
recent cases from the United States Supreme Court,3 seems to be
one of caution, encouraging fairness in the enforcement of
forfeiture laws. The court, however, has given little guidance
as to what factors constitute an "excessive fine" within the
meaning of the Eighth Amendment. In Austin and Alexander the
issue was remanded. Specifically, the Austin court declined an
invitation to establish a multifactor test for determining
whether a forfeiture is "excessive," finding that "[p]rudence
dictates that we allow the lower courts to consider that
question in the first instance." Id. at , 113 S.Ct. at
2812, 125 L.Ed.2d at 506.
Some courts have recognized certain factors that may be
relevant in determining whether forfeiture is grossly
disproportionate to the seriousness of the offense, thereby
violating the Eighth Amendment. In United States v. Sarbello
(C.A.3, 1993), 985 F.2d 716, 724, the court stated that 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. Other helpful
inquires might include an assessment of the personal benefit
reaped by the defendant, the defendant's motive and
culpability, and, of course, the extent that the defendant's
interest and the enterprise itself are tainted by criminal
conduct." The court also emphasized that "[t]he language of
the eighth amendment demands that a constitutionally cognizable
disproportionality reach such a level of excessiveness that in
justice the punishment is more criminal than the crime." Id.
Similarly, in United States v. Busher (C.A.9, 1987), 817
F.2d 1409, 1415, the court wrestled with the issue of
forfeiture of a defendant's business and observed that the
Eighth Amendment "* * * embodies fluid concepts that vary in
application with the circumstances of each case * * *." Id.

The court commented that the "penalty," when compared with the
offense, should include not only the actual forfeiture but also
any sentence, fine or probation imposed on the defendant. Id.
at 1415, fn. 10. The court further stated that:
"In considering the harm caused by defendant's conduct, it
is certainly appropriate to take into account its magnitude:
the dollar volume of the loss caused, whether physical harm to
persons was inflicted, threatened or risked, or whether the
crime has severe collateral consequences, e.g., drug
addiction. * * * In addition, the court may consider the
benefit reaped by the convicted defendant. However, the
forfeiture is not rendered unconstitutional because it exceeds
the harm to the victims or the benefit to the defendant. After
all, RICO's forfeiture provisions are intended to be punitive.
The eighth amendment prohibits only those forfeitures that, in
light of all the relevant circumstances, are grossly
disproportionate to the offense committed." (Emphasis sic.)
Id. at 1415.
The court in Busher also added the caveat that a court
should be reluctant to order forfeiture of a defendant's entire
interest in an enterprise where the defendant has committed
minor violations. "Conversely, if illegal activity accounts
for all or almost all of an enterprise's activity, or an
interest in an enterprise was acquired entirely or almost
entirely with ill-gotten funds, it would not normally violate
the eighth amendment to order forfeiture of all of defendant's
interest in that enterprise." Id. at 1415-1416.
With the foregoing discussion in mind, we hold that
forfeiture of property, pursuant to R.C. 2925.42, is a form of
punishment for a specified offense and, therefore, is a "fine"
for purposes of Section 9, Article I of the Ohio Constitution
and the Eighth Amendment to the United States Constitution.
Accordingly, prior to entering an order of forfeiture, the
trial court must make an independent determination whether
forfeiture of that property is an "excessive fine" prohibited
by the Excessive Fine Clauses of the Ohio and United States
Constitutions.
In this case, the lower courts did not have the benefit of
the United States Supreme Court's decisions in Austin and
Alexander, supra, or assistance of our discussion on the
issue. Hence, the lower courts did not consider whether the
forfeiture of appellant's property, under the circumstances,
was "excessive" within the contemplation of Section 9, Article
I and the Eighth Amendment. This being the case, we reverse
and remand in part this cause to allow the trial court to
specifically address this issue (and possibly appellant's
sentence) in light of the principles delineated in this
opinion.4
Judgment affirmed in part,
reversed in part
and cause remanded.
Moyer, C.J., F.E. Sweeney and Pfeifer, JJ., concur.
Resnick, J., concurs separately.
A.W. Sweeney and Wright, JJ., concur in part and dissent
in part.

FOOTNOTES:

1 R.C. 2923.03(F) provides that "[w]hoever violates this
section is guilty of complicity in the commission of an
offense, and shall be prosecuted and punished as if he were a
principal offender. A charge of complicity may be stated in
terms of this section, or in terms of the principal offense."
2 Section 853(a)(2), Title 21, U.S. Code provides in part
that "[a]ny person convicted of a violation of this subchapter
* * * punishable by imprisonment for more than one year shall
forfeit to the United States * * * any of the person's property
used, or intended to be used, in any manner or part, to commit,
or to facilitate the commission of, such violation * * *."
(Emphasis added.)
3 See, also, United States v. James Daniel Good Real
Property (1993), 510 U.S. , 114 S.Ct. 492, 126 L.Ed.2d 490;
Republic Natl. Bank of Miami v. United States (1992), 506
U.S. , 113 S.Ct. 554, 121 L.Ed.2d 474; and United States
v. Parcel of Land, Buildings, Appurtenances & Improvements
(1993), 507 U.S. , 113 S.Ct. 1126, 122 L.Ed.2d 469.
4 In doing so, we are mindful of the expected criticism that
we have not established specific guidelines or a "bright line"
test to assist trial courts in the task of applying the
forfeiture law. There are two reasons for this apparent
omission. First, we believe that the law should be developed
in its normal and appropriate course -- by trial courts and
courts of appeals. Second, we readily admit that we are no
more clairvoyant than our sisters and brothers in those courts.
State v. Hill.
Alice Robie Resnick, J., concurring. I concur in the
majority opinion, but write separately to highlight certain
concerns with today's holding.
Drug abuse and trafficking are at the root of many other
crimes in this state and nation. That is the very reason that
forfeiture of property used or intended to be used to
facilitate illegal activity was devised and is employed. While
I concur that forfeiture of property amounts to a penalty, I
hope that today's holding will not emasculate our forfeiture
statute. I am afraid that it will result in disparate and
unequal treatment of persons charged with crime. Under the
present system any property used or intended to be used in
furtherance of criminal activity is forfeited. Under such a
procedure, all persons are treated equally, all property used
or intended to be used to facilitate a crime is forfeited and,
lastly, everyone engaging in criminal activity is forewarned
that if one acts in this illegal manner, one's property will be
seized. Resultantly, forfeiture acts as a deterrent to certain
criminal behavior. Given today's ruling, forfeiture will occur
on a case-by-case basis, dependent upon the individual bias,
sympathies and philosophy of each judge.
Forfeiture of property is good policy. It deters criminal
activity and it assists in paying for costs involved in law
enforcement. While I reluctantly concur in today's majority
opinion, I do hope that it does not weaken or erode a very wise
and useful tool of law enforcement.
A. William Sweeney, J., concurring in part and dissenting
in part. While I agree with the law enunciated by the
majority in the syllabus, I believe that the nature of the
instant forfeiture was so excessive as to constitute a clear

violation of Section 9, Article I of the Ohio Constitution and
the Eighth Amendment to the United States Constitution.
Therefore, I respectfully dissent in part to the majority's
disposition of this case.
The emerging trend established by the United States
Supreme Court in both Alexander v. United States (1993), 509
U.S. , 113 S.Ct. 2766, 125 L.Ed.2d 441, and Austin v. United
States (1993), 509 U.S. , 113 S.Ct. 2801, 125 L.Ed.2d 488,
is to emphasize the scrutiny that courts must employ when
confronting forfeitures of property authorized by statute as
punishment for certain criminal offenses.
I appreciate the majority's desire to allow the trial
court to specifically address the excessive-fine issue as an
orderly disposition of this case. However, I believe that the
instant forfeiture was so excessive as to constitute a clear
violation of the "excessive fines" clauses of both the state
and federal Constitutions. Accordingly, in the interests of
judicial economy, I would reverse the forfeiture of appellant's
apartment complex as a patent constitutional violation of the
"excessive fines" clauses under the facts and circumstances of
this case.
Wright, J., concurs in the foregoing opinion.