Opinion
No. 9205624.
Decided March 11, 1994.
Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, and Gary DeRocco, Assistant Prosecuting Attorney, for the state.
Thomas Shaughnessy, for Randy Harman.
The child herein was found to be delinquent by reason of having committed the offenses of aggravated menacing in violation of R.C. 2903.21(A), a misdemeanor of the first degree, and discharging a firearm within city limits in violation of Ordinance No. 549.10(A) of the Ordinances of the City of North Olmsted, a misdemeanor of the first degree.
The state of Ohio timely filed a petition for forfeiture of the property involved in the case, a loaded .357 caliber handgun, alleging it to be contraband. The petition was set for hearing by the court forty-five days after the child was adjudged to be delinquent. During the hearing, the state moved to amend the authority for the petition from R.C. 2933.41 to 2933.43. The motion was granted and the matter was continued for counsel to submit trial briefs on the issue of forfeiture. In addition to her trial brief, the delinquent's mother, through counsel, also filed a brief alleging that she was the owner of the handgun and did not give her son permission to use or control the weapon. The mother also argued that the forfeiture should not be granted because the child had not been adjudged delinquent of a felony. The matter is now before the court for final resolution of the petition and the subject property.
The first issue to be determined is whether forfeiture proceedings are applicable to juveniles and whether this court has jurisdiction to decide the issue. R.C. 2933.42(C) indicates that for the purposes of R.C. 2901.01 and R.C. 2933.41 to 2933.43, "offense," "criminal case," "criminal violation," "criminal offense," "felony," and similar terms shall be construed to include acts committed by persons under eighteen years of age. The statute further provides that "[t]his division shall be liberally construed to give effect to the intent of the general assembly in enacting this division that the forfeiture and contraband provisions of sections 2901.01 and 2933.41 to 2933.43 of the Revised Code apply to property that is possessed, or possessed and owned, by persons under eighteen years of age in the same manner as those provisions apply to property that is possessed, or possessed and owned, by adults." In addition, R.C. 2933.43(C) indicates that the petition for forfeiture shall be filed in the court that has jurisdiction over the underlying criminal case. Finally, R.C. 2151.23(A) gives the juvenile court exclusive and original jurisdiction over children alleged to be delinquent and R.C. 2151.355(A)(11) permits the court to make "any further disposition that the court finds proper * * *." Thus, this court holds that forfeiture proceedings are applicable to juveniles and that juvenile courts have jurisdiction to hear and decide such matters.
The next issue to be determined is whether the property in this case is contraband and subject to forfeiture. R.C. 2901.01(M)(2) defines "contraband" as property that is not otherwise unlawful to possess but is nevertheless contraband because of its use in an unlawful activity or manner. In the case at bar, the property involved was a handgun and was used in a manner as to make it a direct instrument of the offense. Thus, the court concludes that the subject property is contraband.
R.C. 2933.43(A)(1) contains the requirement that for the seizure of some contraband, the underlying offense must be a felony. Current Ohio case law seems to suggest this to be a condition precedent to forfeiture. See State v. Casalicchio (1991), 58 Ohio St.3d 178, 569 N.E.2d 916, and State v. Lawson (1992), 79 Ohio App.3d 220, 607 N.E.2d 51. However, the language of that section makes it clear that the "felony requirement" applies only to contraband that is a watercraft, motor vehicle or aircraft. The property in this case is clearly contraband under R.C. 2901.01(M)(2) because of its use; possession of contraband is prohibited by R.C. 2933.42(A), and contraband property is subject to seizure under R.C. 2933.43(A). The court therefore finds that the property in question is subject to seizure. Because the property is not a watercraft, motor vehicle or an aircraft, the "felony requirement" in R.C. 2933.43(A)(1) does not apply to the facts of this case.
The court has considered the brief in opposition to the forfeiture filed by counsel for the mother and finds the arguments concerning the constitutional right to bear arms and to just compensation for seized property to be unconvincing and not on point. The court notes, however, that Ohio law does have an "innocent owner" saving clause in the forfeiture statutes. R.C. 2933.43(C) provides that "no property shall be forfeited pursuant to this division if the owner of the property establishes, by a preponderance of the evidence, that he neither knew, nor should have known after reasonable inquiry, that the property was used, or likely to be used, in a crime or administrative violation." In the case at bar, the court finds that the mother was able to prove ownership but failed to convince the court, by a preponderance of the evidence, that she is an "innocent owner" as provided for in R.C. 2933.43. Her failure to prove that she was not negligent in the storage of the weapon in a manner that permitted the child to obtain possession of it is a critical flaw in establishing the "innocent owner" defense.
The court, having determined that the property in question is contraband and that the owner of said property is not an innocent owner, hereby orders that the amended petition for forfeiture of seized property be granted. It further orders that the seized property referenced in said motion is forfeited and is to be disposed of pursuant to law.
So ordered.