State v. Little , 2014 Ohio 4756 ( 2014 )

[Cite as State v. Little, 2014-Ohio-4756.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
CASE NO. CA2014-01-020
Plaintiff-Appellee, :
OPINION
: 10/27/2014
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:
LARRY TROY LITTLE, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM MIDDLETOWN MUNICIPAL COURT
Case No. 13CRB03764-A
Ashley M. Bretland, Middletown City Prosecutor, One Donham Plaza, Middletown, Ohio
45042, for plaintiff-appellee
Matthew T. Dixon, 16 North Main Street, P.O. Box 44933, Middletown, Ohio 45044, for
defendant-appellant
S. POWELL, J.
{¶ 1} Defendant-appellant, Larry Troy Little, appeals from his convictions and the
forfeiture of his property in the Middletown Municipal Court after he was found guilty of one
count of selling beer, intoxicating liquor, or alcohol without a permit, as well as three counts of
selling or furnishing beer or intoxicating liquor to an underage person, all first-degree
misdemeanors. For the reasons outlined below, we affirm in part, reverse in part and
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remand for further proceedings.
{¶ 2} On July 21, 2013, Little was arrested and subsequently charged with the above
named offenses after officers from the Middletown Police Department executed a search
warrant at Little's home located at 413 Clark Street, Middletown, Butler County, Ohio. A one-
day bench trial was then held on November 20, 2013. Following the bench trial, Little was
found guilty and ordered to serve 180 days in jail and to pay court costs. The trial court also
ordered the forfeiture of a television and two fans located in Little's living room, the alcohol
that was found in his kitchen, as well as $4,861 in cash located on his person and in his
upstairs bedroom closet.
{¶ 3} Little now appeals, raising three assignments of error for review. For ease of
discussion, Little's first and second assignments of error will be addressed together.
{¶ 4} Assignment of Error No. 1:
{¶ 5} THE EVIDENCE PRESENTED AT TRIAL CONSIDERED IN THE LIGHT MOST
FAVORABLE TO THE PROSECUTION IS INSUFFICIENT TO SUSTAIN A VERDICT OF
ILLEGAL SALE OF LIQUOR OR FURNISHING ALCOHOL TO AN UNDERAGE PERSON.
{¶ 6} Assignment of Error No. 2:
{¶ 7} TRIAL COURT'S VERDICTS ON THE CHARGES OF ILLEGAL SALE OF
LIQUOR AND FURNISHING ALCOHOL TO A MINOR WERE AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.
{¶ 8} Under his first and second assignments of error, Little argues his convictions
must be reversed as they were based on insufficient evidence and against the manifest
weight of the evidence. We disagree.
{¶ 9} At the outset, we note that "[t]he legal concepts of sufficiency of the evidence
and weight of the evidence are both quantitatively and qualitatively different." State v.
Wright, 12th Dist. Butler No. CA2012-08-152, 2014-Ohio-985, ¶ 10, quoting State v.
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Thompkins, 78 Ohio St.3d 380, 386 (1987). Nevertheless, although the two concepts are
different, it is now well-established that finding a conviction is supported by the manifest
weight of the evidence is also dispositive of the issue of sufficiency. State v. Jones, 12th
Dist. Butler No. CA2012-03-049, 2013-Ohio-150, ¶ 19, citing State v. Church, 12th Dist.
Butler No. CA2011-04-070, 2012-Ohio-3877, ¶ 10. Therefore, "[b]ecause sufficiency is
required to take a case to the jury, a finding that a conviction is supported by the weight of
the evidence must necessarily include a finding of sufficiency." State v. Hart, 12th Dist.
Brown No. CA2011-03-008, 2012-Ohio-1896, ¶ 43; State v. Kinsworthy, 12th Dist. Warren
No. CA2013-06-053, 2014-Ohio-1584, ¶ 54.
{¶ 10} A manifest weight of the evidence challenge examines the "inclination of the
greater amount of credible evidence, offered at a trial, to support one side of the issue rather
than the other." State v. Barnett, 12th Dist. Butler No. CA2011-09-177, 2012-Ohio-2372, ¶
14. To determine whether a conviction is against the manifest weight of the evidence, this
court must look at the entire record, weigh the evidence and all reasonable inferences,
consider the credibility of the witnesses, and determine whether in resolving the conflicts in
the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of
justice that the conviction must be reversed and a new trial ordered. State v. Graham, 12th
Dist. Warren No. CA2008-07-095, 2009-Ohio-2814, ¶ 66.
{¶ 11} However, "[w]hile appellate review includes the responsibility to consider the
credibility of witnesses and weight given to the evidence, 'these issues are primarily matters
for the trier of fact to decide.'" State v. Barnes, 12th Dist. Brown No. CA2010-06-009, 2011-
Ohio-5226, ¶ 81, quoting State v. Walker, 12th Dist. Butler No. CA2006-04-085, 2007-Ohio-
911, ¶ 26. As a result, we will overturn a conviction due to the manifest weight of the
evidence only in extraordinary circumstances when the evidence presented at trial weighs
heavily in favor of acquittal. State v. Morgan, 12th Dist. Butler Nos. CA2013-08-146 and
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CA2013-08-147, 2014-Ohio-2472, ¶ 34.
{¶ 12} Little was convicted of one count of selling beer, intoxicating liquor, or alcohol
without a permit in violation of R.C. 4301.58(B), a first-degree misdemeanor. Pursuant to
that statute:
No person, personally or by the person's clerk, agent, or
employee, who is not the holder of an A, B, C, D, E, F, G, I, or S
permit issued by the division, in force at the time, and authorizing
the sale of beer, intoxicating liquor, or alcohol, or who is not an
agent or employee of the division or the tax commissioner
authorized to sell such beer, intoxicating liquor, or alcohol, shall
sell, keep, or possess beer, intoxicating liquor, or alcohol for sale
to any persons other than those authorized by Chapters 4301.
and 4303. of the Revised Code to purchase any beer or
intoxicating liquor, or sell any alcohol at retail.
{¶ 13} Little was also convicted of three counts of selling or furnishing beer or
intoxicating liquor to an underage person in violation of R.C. 4301.69(A), also a first-degree
misdemeanor. That statute provides:
Except as otherwise provided in this chapter, no person shall sell
beer or intoxicating liquor to an underage person, shall buy beer
or intoxicating liquor for an underage person, or shall furnish it to
an underage person, unless given by a physician in the regular
line of the physician's practice or given for established religious
purposes or unless the underage person is supervised by a
parent, spouse who is not an underage person, or legal
guardian.
{¶ 14} At trial, Detective James Wilcox of the Middletown Police Department testified
they had received numerous complaints regarding an illegal and unpermitted after-hours bar
at Little's home. As a result of these complaints, Detective Wilcox testified a controlled
purchase of alcohol from Little was conducted by two confidential informants using marked
bills. Following the controlled purchase, Detective Wilcox testified they obtained a search
warrant for Little's home, which was then executed on the night of July 21, 2013.
{¶ 15} According to Detective Wilcox, approximately 50 to 60 people were at Little's
home that evening drinking beer and other alcoholic beverages, three of whom were under
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the age of 21. As Detective Wilcox testified in describing the scene:
Yes, uh there was music playing, there was a TV on in the
kitchen, uh the entire downstairs of the uh address umm had
been basically turned into a bar. Uh the kitchen area appeared
to be the main bar area. What would be the living room
appeared to be the dance floor equipped with uh fans. Umm,
there were several other small rooms umm off that living room.
Umm, there was a upstairs; a staircase that had a door on it
which was padlocked; which Mr. Little later identified as being the
area of the residence that he lived in. Uh the rest of it was uh the
uh after-hours portion.
{¶ 16} Detective Wilcox also testified that the search of Little's upstairs bedroom
uncovered "a large number of receipts" for alcohol purchases, as well as numerous business
cards with Little's name referencing "an after-hours party" and "party supplies" at a nearby
address. The officers later discovered $587 on Little's person, with an additional $204
hidden in his shoe and $4,070 in a Crown Royal bag located in Little's upstairs bedroom
closet. It is undisputed that the money located in the Crown Royal bag included the marked
bills used by the confidential informants during the controlled purchases of alcohol from Little.
{¶ 17} Continuing, Detective Wilcox testified Little was then arrested and transported
to the Middletown Police Department. Once there, Detective Wilcox testified Little agreed to
speak with him after he was read his Miranda rights. Detective Wilcox then testified that
although Little initially denied selling any alcohol at his home that evening, Little later
"apologized" and claimed "his intention was to come to the police department to find out what
he needed to do, to do this legally umm so he wouldn't get in trouble and avoid all this all this
[sic] trouble." The state then rested.
{¶ 18} After the state rested, Devonte Thornton, one of the three underage persons
found at Little's home that evening, testified as part of Little's defense. According to
Thornton, although he had been drinking earlier that night, he did not drink any alcoholic
beverages while at Little's home. Thornton also testified that he had never personally
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purchased any alcohol from Little, nor did he see anybody else purchase any alcohol from
Little that evening. Instead, although acknowledging he had been at Little's home for over an
hour, Thornton testified he "was just in the livin' room * * * hangin' out for a second" when the
police arrived to execute the search warrant.
{¶ 19} Little also testified as part of his own defense. According to Little, he was just a
"bored" and "single guy" that "didn't mind friends comin' over" to his house to hang out and
party. Little then testified that he did not advertise for any after-hours party at his home and
denied that he was running an after-hours bar. As Little testified, "I never told nobody, you
know, it was just like he heard, you know, so people just come when they ain't got nuthin' to
do, you know * * *." Little further testified that the business card found in his bedroom was
personal and "really just for females." As Little explained, if the business card was
advertising for an after-hours party "I wouldn't have my e-mail address" because "I would
think actually you too drunk to e-mail somebody you know at two (2) in the morning * * *."
{¶ 20} In addition, Little testified he never sold or furnished alcohol to anybody under
the age of 21. Specifically, as it relates to Thornton, Little testified "Naw he didn' have nuthin,
* * * nuthin at all." Furthermore, when asked about the significant amount of alcohol found in
his house, Little testified:
Just for me and some of my friends. They would buy stuff. I
wasn't drinkin' half of that stuff. Some of my friends they would
drink some of my stuff. I had a extra bedroom house, so my
house was welcome to my friends. If you wanted to come by
and spend the night you could. Hey, crash out, stay here. I'm
bored in the house I might wanted some company sometimes.
{¶ 21} Little then testified that the $4,861 found on his person and in his upstairs
bedroom closet was part of a $250,000 settlement he and his ex-fiancé received following
the death of their child. Thereafter, when explicitly asked if the money found in his house
was derived from selling alcohol, Little testified "No, not at all." Rather, when asked how the
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marked bills from the confidential informants were included as part of the money found in the
Crown Royal bag, Little testified:
I mean I don't know it was somebody was exchangin' money I
mean we bought food. Different people would buy food. We
would barbecue at the house and you know, maybe they
changed money. I never sold anybody anything. You know we
would switch turns who payin' for the barbecue 'cause you know
they was watchin' the house they know sometime we would
barbecue and we would go to [the store] and some people would
get pends [sic] on who's buyin' food for that night. Some people
get shrimp or fish, so get different things and we would go in, you
know, on the monies, so I don't know at some point in time that,
you know, with a few people at the house somebody need some
change or whatever.
{¶ 22} Little also testified the officers never found any receipts for alcohol within his
bedroom. According to Little, "they said they found some they didn't find no receipts in my
bedroom."
{¶ 23} As can be seen, just like most cases, this case comes down to the credibility of
the witnesses. The trial court, however, clearly found Detective Wilcox's testimony that Little
was running an after-hours bar out of his home to be more credible, thereby disbelieving
Thornton and Little's testimony to the contrary. "The decision whether, and to what extent, to
credit the testimony of particular witnesses is within the peculiar competence of the
factfinder, who has seen and heard the witness." State v. Applegate, 12th Dist. Warren No.
CA2013-08-070, 2014-Ohio-1697, ¶ 20, quoting State v. Rhines, 2d Dist. Montgomery No.
23486, 2010-Ohio-3117, ¶ 39. In turn, "[a]s the trier of fact is in the best position to judge the
credibility of the witnesses, we will not disturb the trial court's finding in regard to which
version of events was credible, and which was not." State v. Bonner, 12th Dist. Butler No.
CA2012-09-195, 2013-Ohio-3670, ¶ 13.
{¶ 24} Moreover, although faced with conflicting evidence, "[i]t is well-established that
when conflicting evidence is presented at trial, a conviction is not against the manifest weight
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of the evidence simply because the trier of fact believed the prosecution testimony." State v.
Lunsford, 12th Dist. Brown No. CA2010-10-021, 2011-Ohio-6529, ¶ 17. This is true
regardless of the fact that the evidence presented at trial was purely circumstantial. "A
conviction based on purely circumstantial evidence is no less sound than one based on direct
evidence as circumstantial evidence and direct evidence have the same probative value."
State v. Jackson, 12th Dist. Butler No. CA2013-10-192, 2014-Ohio-3779, ¶ 19, citing State v.
Widmer, 12th Dist. Warren No. CA2011-03-027, 2012-Ohio-4342, ¶ 99.
{¶ 25} In light of the foregoing, because the evidence presented at trial does not weigh
heavily in favor of acquittal, and in fact verges on overwhelming evidence of his guilt, we
simply cannot say the trial court erred and clearly lost its way by finding Little guilty as
charged. Therefore, having found Little's convictions were supported by sufficient evidence
and were not against the manifest weight of the evidence, Little's first and second
assignments of error are overruled.
{¶ 26} Assignment of Error No. 3:
{¶ 27} THE MONEY AND PROPERTY SEIZED FROM THE DEFENDANT'S
RESIDENCE WAS NOT PROPERLY SUBJECT TO FORFEITURE, OR IF IT WAS, THE
PROSECUTION DID NOT PROPERLY FOLLOW THE STATUTORY PROCEDURE TO
PERMIT THE IMPOSITION OF FORFEITURE AS A PENALTY UPON CONVICTION.
{¶ 28} In his third assignment of error, Little argues the trial court erred by ordering the
forfeiture of the television and two fans located in his living room, as well as the $4,861 in
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cash located on his person and in his upstairs bedroom closet. We agree.
{¶ 29} Pursuant to R.C. 2981.04(A)(1),
Property described in division (A) of section 2981.02 of the
1. Little does not challenge the trial court's decision finding the alcohol confiscated during the execution of the
search warrant was subject to forfeiture. As stated in his appellate brief, Little "has not sought to claim
ownership of the confiscated liquor" taken from his home.
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Revised Code may be forfeited under this section only if the
complaint, indictment, or information charging the offense or
municipal violation, or the complaint charging the delinquent act,
contains a specification of the type described in section
2941.1417 of the Revised Code that sets forth all of the following
to the extent it is reasonably known at the time of the filing:
(a) The nature and extent of the alleged offender's or delinquent
child's interest in the property;
(b) A description of the property;
(c) If the property is alleged to be an instrumentality, the alleged
use or intended use of the property in the commission or
facilitation of the offense.
{¶ 30} It is undisputed the state did not include a forfeiture specification as part of the
charging document. However, even when the charging document does not contain the
required forfeiture specification R.C. 2981.04(A)(2) provides:
If any property is not reasonably foreseen to be subject to
forfeiture at the time of filing the indictment, information, or
complaint, the trier of fact still may return a verdict of forfeiture
concerning that property in the hearing described in division (B)
of this section if the prosecutor, upon discovering the property to
be subject to forfeiture, gave prompt notice of this fact to the
alleged offender or delinquent child under Criminal Rule 7(E) or
Juvenile Rule 10(B).
{¶ 31} Based on the plain and unambiguous language of the statute, the provisions in
R.C. 2981.04(A)(2) apply only if: (1) the property subject to forfeiture is not reasonably
foreseen to be subject to forfeiture at the time of filing the charging instrument, and (2) the
prosecutor, upon discovering the property to be subject to forfeiture, gave prompt notice to
the offender or delinquent child under the applicable criminal or juvenile rule. In all other
instances, i.e., where the property is reasonably foreseen to be subject to forfeiture, the state
must comply with provisions found in R.C. 2981.04(A)(1).
{¶ 32} After a thorough review of the record, we find it should have been reasonably
foreseen by the state that the $4,861 located on Little's person and in his upstairs bedroom
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closet during the execution of the search warrant would be subject to forfeiture as proceeds
derived from the offenses at the time the charging document was filed. The same could be
said for the television and two fans located in Little's living room as those items may also
constitute instrumentalities of the offenses.2 Nevertheless, the state did not include a
forfeiture specification as part of the charging document as required by R.C. 2981.04(A)(1).
Again, pursuant to that statute, property that is reasonably foreseen to be subject to forfeiture
may be forfeited "only if" the charging document contains the necessary forfeiture
specification under R.C. 2941.1417. That simply did not occur here. Therefore, the
television, two fans, and $4,861 confiscated from Little's home during the execution of the
search warrant were not subject to forfeiture.
{¶ 33} Moreover, even if we were to find it was not reasonably foreseen that the
property would be subject to forfeiture, the record is devoid of any evidence that the
prosecutor, upon discovering the property to be subject to forfeiture, gave prompt notice of
this fact to Little under Crim.R. 7(E) as required by R.C. 2981.04(A)(2).3 Rather, based on
the record before this court, the state requested the forfeiture of the property only after the
trial court issued its ruling finding Little guilty. This hardly constitutes giving "prompt notice" to
the offender that the property was subject to forfeiture.
{¶ 34} Given these deficiencies, the trial court had no authority to order this property
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be forfeited. Therefore, based on the facts and circumstances of this case, and regardless
2. Due to the uncertain and ambiguous nature in which they were used, we question whether the television and
two fans were subject to forfeiture as instrumentalities of the offenses. Assuming that they were, it could just as
easily be said the toilet used by Little's patrons, although exempt from forfeiture as a fixture, would also
constitute an instrumentality of the offenses. Regardless, whether the television and two fans were
instrumentalities subject to forfeiture is not determinative of our holding. Therefore, we offer no opinion as it
relates to that issue here.
3. The record does contain a request for a bill of particulars filed by Little's original trial counsel on August 5,
2013. Nothing in the record indicates the state ever responded to that request.
4. The state claims Little waived any challenge to the notice requirements as he failed to raise the issue before
the trial court. Notice, however, is a procedural requirement contained in both R.C. 2981.04(A)(1) and (2) that
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of whether this matter falls under R.C. 2981.04(A)(1) or (2), Little's third assignment of error
is sustained and the trial court's decision ordering forfeiture of the television, two fans, and
$4,861 in cash confiscated from Little's home during the execution of the search warrant is
reversed and this matter is remanded to the trial court for further proceedings.
{¶ 35} Judgment affirmed in part, reversed in part and remanded.
RINGLAND, P.J., and M. POWELL, J., concur.
must be given to the alleged offender in order to establish the trial court's authority to order a forfeiture. This
constitutes a matter of subject-matter jurisdiction that cannot be waived. See, e.g., State v. Christian, 2d Dist.
Montgomery No. 25256, 2014-Ohio-2672, ¶ 136 (finding unpersuasive the state's argument that appellant waived
the notice requirement by failing to object to the forfeiture in the trial court); see also State v. Mbodji, 129 Ohio
St.3d 325, 2011-Ohio-2880, ¶ 10 (objections to subject-matter jurisdiction cannot be waived).
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