State v. West

[Cite as State v. West, 2013-Ohio-96.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 97391 and 97900

STATE OF OHIO
PLAINTIFF-APPELLEE

vs.

TIMOTHY WEST
DEFENDANT-APPELLANT

JUDGMENT:
AFFIRMED IN PART,
REVERSED IN PART, AND REMANDED

Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-548609

BEFORE: Keough, J., Boyle P.J., and Jones, J.

RELEASED AND JOURNALIZED: January 17, 2013
ATTORNEYS FOR APPELLANT

David L. Doughten
The Brownhoist Building
4403 St. Clair Avenue
Cleveland, OH 44103

Timothy West, pro se
Inmate #604-876, RICI
1001 Olivesburg Road
P.O. Box 8107
Mansfield, OH 44901

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Jeffrey S. Schnatter
Louis J. Brodnik
Patrick Lavelle
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
KATHLEEN ANN KEOUGH, J.:

{¶1} In this consolidated appeal, defendant-appellant, Timothy West, appeals his

convictions and the trial court’s decision ordering forfeiture of certain property. Finding

some merit to the appeal, we affirm in part, reverse in part, and remand.

{¶2} In March 2011, Timothy and his brother, codefendant, Todd West, were

jointly charged with illegal manufacture of drugs or cultivation of marijuana, drug

trafficking, drug possession, and possession of criminal tools. Each count contained

several forfeiture specifications, including forfeiture of automobiles, money, and real

property.

{¶3} Although initially requesting a separate trial from his brother, Timothy

withdrew that motion prior to the start of trial and a joint jury trial commenced. The

facts adduced at trial were stated in this court’s opinion in State v. West, 8th Dist. Nos.

97398 and 97899, 2012-Ohio-6138, ¶ 6-16:

In September 2010, the Cleveland police began investigating Timothy and
Todd. During the investigation, the police learned that the brothers owned
the property located at 2341 Scranton Road, and that they had purchased the
property for $110,000 cash in May 2010. The police also learned that each
man owned a home in Westlake.

The trial testimony revealed that there is a short driveway for the Scranton
Road property that leads to a locked gate and chain link fence. A large
commercial building is located inside the gated and fenced portion of the
property. On November 3, 2010, Cleveland police conducted surveillance
of the property. During the surveillance, the police observed a van, driven
by Timothy, arrive at the property, followed shortly by the arrival of an
Oldsmobile, driven by Todd. Upon their arrivals, each defendant drove his
vehicle into the driveway, got out of his vehicle, unlocked the padlock, and
opened the gate. The defendants then got back into their vehicles, drove
beyond the gate, then got out of their car again and closed and locked the
gate. Todd and Timothy then drove their vehicles to the garage bay doors,
opened the garage doors, pulled their cars into the garage, and then closed
the door.

After Timothy and Todd left the property that day, the police walked the
perimeter of the building and smelled a strong odor of marijuana. The
police obtained a warrant to search the building; they also obtained warrants
to search Timothy and Todd’s homes.

On the day of the searches, November 5, 2010, the officer who had
surveilled the Scranton Road property two days earlier again conducted
surveillance of the property. The officer saw the same two vehicles from the
November 3 surveillance arrive at the property separately, but very close in
time, and again driven by Todd and Timothy. Todd arrived first driving the
Oldsmobile. He went through the same motions as on November 3: stopped
the car in the driveway, got out and unlocked the gate, got back into the car
and drove past the gates, got out, closed and locked the gate, drove the car
to the garage, opened the garage, drove in, and shut the garage door.
Timothy arrived shortly after Todd, and went through the same motions
from November 3 and that Todd had just gone through moments before.

During the officer’s surveillance of the property, no other vehicles or
persons arrived. Eventually, Todd left the building and after seeing Todd
drive the Oldsmobile out of the garage, the officer contacted other officers
to move in. Todd was detained when he got out of his car to unlock the
gate. The police informed Todd that they were there to execute a search
warrant and informed him of his Miranda rights, which Todd indicated he
understood.

An officer stayed outside the building with Todd while other law
enforcement officials executed the search inside the building. The officer
asked Todd if there was any marijuana inside the building; Todd responded
“lots.” Todd elaborated that there were “a lot, hundreds, maybe a thousand”
marijuana plants in the building. When the police asked him how many
plants were ready for harvest, Todd responded, “lots, you got us good.”
When further asked where he kept his money, Todd replied “we haven't had
a chance to sell anything yet, there is no money.”
 Meanwhile, the officers executing the search found the main door to the
building was padlocked, as was the basement door. The officers who
searched the basement had to wear face masks because the odor of
marijuana was so overwhelming. Timothy was found coming from an office
area in the warehouse [that was connected to rooms containing marijuana
plants and growing paraphernalia].

The police recovered hundreds of marijuana plants growing primarily in the
basement and in one or two of the first floor rooms. The plants weighed a
total of approximately 55,000 grams. The police also recovered numerous
criminal tools, including “grow lights,” ventilation systems, soil, chemicals,
packaging material, plant stakes, plastic gallon-sized and sandwich-sized
bags, and scales.

A gallon-sized plastic bag containing marijuana was recovered from the
trunk of Todd’s vehicle. When asked by the police if the bag of marijuana
was a pound, Todd said it was 170 grams. A forensic scientist from the
Cuyahoga County Regional Forensic Science Laboratory testified that the
weight of the bag and contents was 173.5 grams.

The police recovered $280 from Timothy’s person and an electric timer was
found during a search of his van. Papers and money were seized from
Timothy and Todd’s homes: $1,313 from Timothy’s house, and $2,700
from Todd’s house.

After Todd and Timothy had been together for about an hour, Todd denied
talking to the police and making any statements. Todd admitted that he
owned the building and stated that he leased part of it to a man named
Adam Flanik.

{¶4} Additionally, the trial testimony revealed that Timothy did HV/AC work.

Timothy testified that he began renting the south side of the building, where the

marijuana-grow operation was discovered, to a couple named Eddie and Maria Torres in

July 2010. He stated that although he smelled marijuana on occasion, he thought

someone was smoking it inside the building. He further testified that Maria Torres was a

florist and was going to plant some trees for him, so he picked up soil for her. He denied
any knowledge of the marijuana and maintained that he and Todd were there to pick up

the November rent.

{¶5} The jury found Timothy guilty of all counts and specifications. The trial

court proceeded directly to sentencing and sentenced Timothy to a 16-year prison term,

which included 8-year consecutive sentences on the illegal manufacture or cultivation of

drugs and the drug trafficking charges. The trial court also ordered forfeiture of

Timothy’s automobile, money found in his home and on his person at the time of arrest,

and the Scranton Road property.

{¶6} Timothy appeals, raising seven assignments of error, which will be addressed

together where appropriate.

I. Confrontation Clause

{¶7} At trial, witnesses testified about statements made by codefendant Todd

during his interrogation and arrest. Officer Klamert testified that after he conducted a

patdown search and Mirandized Todd, he questioned him if any marijuana was inside the

building. Todd replied that there was “lots.” Detective Scott Moran also testified that

he asked Todd how many plants were inside the building, and Todd responded, “A lot.

Hundreds. Maybe a Thousand.” When Detective Moran asked how many were ready

for harvest, Todd responded, “Lots. You got us good.” Finally, Detective Joseph

Bovenzi testified that when he asked Todd about where he kept his money, Todd

responded, “We haven’t had a chance to sell anything yet. There is no money.” Todd

did not testify at trial.
 {¶8} In his first assignment of error, Timothy contends that the introduction of

Todd’s extrajudicial statements deprived him of his right to confrontation and of his due

process right to a fair trial.

{¶9} “The Sixth Amendment to the United States Constitution guarantees an

accused the right to confront witnesses against him.” State v. Swaby, 9th Dist. No.

24528, 2009-Ohio-3690, at ¶6, citing Crawford v. Washington, 541 U.S. 36, 54, 124 S.Ct.

1354, 158 L.Ed.2d 177 (2004). In Crawford, the United States Supreme Court held that

the testimonial statement of a witness who is absent from trial is to be admitted only when

the declarant is unavailable, and only when the defendant has had a prior opportunity to

cross-examine the declarant. Id. at 39.

{¶10} Moreover, “an accused’s right of cross-examination secured by the

confrontation clause of the Sixth Amendment is violated in a joint trial with a

non-testifying codefendant by the admission of extrajudicial statements made by the

codefendant inculpating the accused (Bruton v. United States, 391 U.S. 123, [88 S.Ct.

1620, 20 L.Ed.2d 476], followed.)” State v. Moritz, 63 Ohio St.2d 150, 507 N.E.2d 1268

(1980), paragraph one of the syllabus.

{¶11} However, a violation of an accused’s right to confrontation and

cross-examination is not prejudicial where there is sufficient independent evidence of an

accused’s guilt to render improperly admitted statements harmless beyond doubt. Moritz

at paragraph two of the syllabus.
 {¶12} In this case, the State concedes on appeal that the statements made by Todd

were testimonial and were subject to Crawford if used against Timothy. However, the

State maintains that Timothy was not prejudiced by the statements; thus, any error in the

admission of the statements was harmless. We agree.

{¶13} While the extrajudicial statements made by Todd may have implicated

Timothy, the evidence was sufficient beyond these statements to render them harmless.

The evidence presented at trial showed that on two different occasions, Timothy was

observed making purchases from two different stores described as “grow houses.” On

the day the search warrant was executed, Timothy was observed entering the store Cheap

Hydroponics and loading large bags of soil into his van — similar looking bags were

recovered when the search warrant was executed at the Scranton Road property.

{¶14} When Timothy was arrested at the Scranton Road property, he was

apprehended as he was exiting an office area of the warehouse that was connected to

other rooms where marijuana plants were growing and harvesting and growing

paraphernalia was located. Also located and recovered from those rooms included

packaging material, scales, bags, cutting shears, and loose marijuana, stems, and leaves

littered the floor. Moreover, the officers testified that when they searched the basement

area of the warehouse, they had to wear masks because the odor of marijuana was so

overwhelming. Considering the strong odor of marijuana, the debris, plants, and

paraphernalia recovered, and that Timothy was apprehended when he was exiting an area
where all the contraband was located, sufficient admissible evidence was present to

render the extrajudicial statements made by Todd harmless beyond a reasonable doubt.

{¶15} Accordingly, Timothy’s first assignment of error is overruled.

II. Separate Trials

{¶16} In his second assignment of error, Timothy contends the trial court erred by

failing to sever the defendants for trial. The record reflects that Timothy initially moved

the court for separate trials; however and after conferring with counsel and Todd’s

counsel, a tactical decision was made to try the cases together. Accordingly, we find that

when he withdrew his motion for separate trials, Timothy invited the error now

complained of on appeal. Under the invited error doctrine, “a party is not entitled to take

advantage of an error that he himself invited or induced.” State v. Doss, 8th Dist. No.

84433, 2005-Ohio-775, ¶ 5, quoting State ex rel. Kline v. Carroll, 96 Ohio St.3d 404,

2002-Ohio-4849, 775 N.E.2d 517. A defendant “‘may not make an affirmative and

apparent strategic decision at trial and then complain on appeal that the result of that

decision constitutes reversible error.’” Doss at ¶ 7, quoting United States v. Jernigan,

341 F.3d 1273, 1290 (7th Cir.2003).

{¶17} Timothy’s the second assignment of error is therefore overruled.

III. Sentence

{¶18} In his third and fourth assignments of error, Timothy challenges his sentence

arguing that the trial court erred by failing to find his convictions of cultivation and

trafficking in drugs are allied offenses pursuant to R.C. 2941.25, and that he was
sentenced to consecutive sentences without ordering and considering a presentence

report.

{¶19} Count 1 of the indictment charged that Timothy “did knowingly cultivate

marijuana or knowingly manufacture or otherwise engage in any part of the production of

a controlled substance, and the drug involved in the violation was marijuana * * *.”

Count 2 of the indictment charged that Todd “did knowingly prepare for shipment, ship,

transport, deliver, prepare for distribution, or distribute a controlled substance, when the

offender knows or has reasonable cause to believe that the controlled substance is

intended for sale or resale by the offender or another person * * *.”

{¶20} Under R.C. 2925.01(F), “‘[c]ultivate’ includes planting, watering,

fertilizing, or tilling.” Under R.C. 2925.01(J), “‘[m]anufacture’ means to plant,

cultivate, harvest, process, make, prepare, or otherwise engage in any part of the

production of a drug, by propagation, extraction, chemical synthesis, or compounding, or

any combination of the same, and includes packaging, repackaging, labeling, and other

activities incident to production.”

{¶21} Timothy, therefore, contends that the drug trafficking and manufacture or

cultivation counts should have merged as allied offenses. This precise issue was

addressed in Todd’s appeal. See West, 8th Dist. Nos. 97398 and 97899,

2012-Ohio-6138, at ¶ 38-45. After analyzing the merger statutes and the Ohio Supreme

Court’s most recent pronouncement on allied offenses in State v. Johnson, 128 Ohio St.3d

153, 2010-Ohio-6314, 942 N.E.2d 1061, this court held in West that based on the record,
 [I]t is possible to commit drug trafficking and the illegal cultivation or
manufacture of marijuana with the same conduct, the first prong of the
Johnson test. We further find that, based on the evidence here, the
offenses were “‘committed with a single state of mind.’” Johnson at ¶ 49,
quoting [State v.] Brown[, 119 Ohio St.3d 447, 2008-Ohio-4569, 895
N.E.2d 149], at ¶ 50.

The evidence at trial established that Timothy cultivated and/or
manufactured marijuana for the purpose of trafficking it. Some of the
marijuana recovered by the police was already packaged, items incident to
trafficking were recovered where the marijuana was being cultivated or
manufactured, and when asked where he kept his money, he replied “we
haven’t had a chance to sell anything yet, there is no money.”

On this record, the trafficking and cultivation and manufacturing counts
should have merged as allied offenses.

Id. at ¶ 43-45

{¶22} Consistent with West, because we find that the two counts should have

merged, the issue of consecutive sentences is moot. Accordingly, Timothy’s third

assignment of error is therefore sustained and his fourth assignment of error is rendered

moot.

IV. Ineffective Assistance of Counsel

{¶23} In his fifth assignment of error, Timothy contends he was denied his right to

effective assistance of counsel because (1) counsel failed to request separate trials or

erred in withdrawing the request for separate trials, (2) failed to object to statements made

by codefendant Todd, (3) erred in objecting to the prosecutor’s request for an instruction

regarding Todd’s statements, (4) failed to argue that drug trafficking and cultivation of

marijuana were allied offenses, and (5) failed to request a presentence investigation or

continuance of sentencing so that Timothy could be afforded the protections of H.B. 86.
We note that these arguments are the basis for other assigned errors raised by Timothy

within the appeal and previously addressed in this opinion.

{¶24} To reverse a conviction for ineffective assistance of counsel, the defendant

must prove “(1) that counsel’s performance fell below an objective standard of

reasonableness, and (2) that counsel’s deficient performance prejudiced the defendant

resulting in an unreliable or fundamentally unfair outcome of the proceeding.” State v.

Madrigal, 87 Ohio St.3d 378, 388-389, 2000-Ohio-448, 721 N.E.2d 52, citing Strickland

v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

{¶25} As to the second element of the test, the defendant must establish “that there

exists a reasonable probability that, were it not for counsel’s errors, the result of the trial

would have been different.” State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373

(1989), paragraph three of the syllabus; Strickland at 686. In evaluating whether a

petitioner has been denied effective assistance of counsel, the Ohio Supreme Court held

that the test is “whether the accused, under all the circumstances, had a fair trial and

substantial justice was done.” State v. Hester, 45 Ohio St.2d 71, 341 N.E.2d 304 (1976),

paragraph four of the syllabus.

{¶26} Having previously determined in his first assignment of error that

Timothy’s right to confrontation may have been violated but any violation was harmless,

we necessarily find that he was not denied his right to effective assistance of counsel for

failing to object to Todd’s statements and for objecting to the trial court’s limiting

instruction regarding Todd’s statements.
 {¶27} Timothy also argues that his counsel was ineffective for failing to request

separate trials and for withdrawing the motion for separate trials. In his second

assignment of error, we declined to address the issue of separate trials due to the invited

error doctrine. As this court recognized,

considering an ineffective assistance of counsel claim brought about as a
result of invited error would necessarily vitiate our ruling on invited error.
There is no point in having a stringent invited error doctrine only to allow it
to be overcome by finding counsel ineffective for having invited the error.
In any event, an invited error involves the exercise of trial strategy, and the
courts have repeatedly held that an appellate court will not question matters
of trial strategy.”

State v. Doss, 8th Dist. No. 84433, 2005-Ohio-775, ¶ 9, citing State v. Mason, 82 Ohio

St.3d 144, 157, 1998-Ohio-370, 694 N.E.2d 932. Furthermore, this court must presume

that a licensed attorney is competent and that the challenged action is the product of

sound trial strategy and falls within the wide range of professional assistance.

Strickland, 466 U.S. at 689, 104 S.Ct. 2052, 80 L.Ed.2d 674. Courts must generally

refrain from second-guessing trial counsel’s strategy, even where that strategy is

questionable, and appellate counsel claims that a different strategy would have been more

effective. State v. Jalowiec, 91 Ohio St.3d 220, 237, 2001-Ohio-26, 744 N.E.2d 163.

{¶28} His final arguments challenging the effectiveness of his trial counsel pertain

to the issue of allied offenses and his sentence. Having previously sustained Timothy’s

assignments of error specifically challenging the issue of allied offenses, we find his

arguments challenging the effectiveness of his trial counsel regarding the issue of allied

offenses moot.
 {¶29} Accordingly, Timothy’s fifth assignment of error is overruled.

V. Forfeiture

{¶30} In his sixth and seventh assignments of error, Timothy challenges the trial

court’s order of forfeiture. Specifically, he contends that the trial court erred when it

ordered the forfeiture of (1) cash and his automobile because the evidence failed to

establish that they were associated with drug trafficking activities, and (2) both parcels

comprising the address of 2341 Scranton Road in Cleveland, Ohio because the indictment

only identified one parcel, which was the only parcel of the property used to facilitate the

marijuana-grow operation, and the forfeiture of the entire property was disproportionate

to the crime.

{¶31} Generally, forfeiture is not favored in Ohio. State v. Clark, 173 Ohio

App.3d 719, 2007-Ohio-6235, 880 N.E.2d 150. ¶ 8 (3d Dist.). “Whenever possible,

[forfeiture] statutes must be construed so as to avoid a forfeiture of property.” State v.

Lilliock, 70 Ohio St.2d 23, 26, 434 N.E.2d 723 (1982).

{¶32} R.C. 2981.02 specifies three kinds of property that may be forfeited to the

State: (1) contraband involved in an offense, (2) proceeds derived from or acquired

through the commission of an offense, or (3) an instrumentality that is used in or intended

to be used in the commission or facilitation of a felony.

{¶33} “Contraband” is defined as property that is illegal for a person to acquire or

possess under a statute, ordinance, or rule, or that a trier of fact determines to be illegal to

possess by reason of the property’s involvement in an offense. R.C. 2901.01(A)(13).
“Proceeds” in matters involving unlawful goods means any property derived directly or

indirectly from an offense. R.C. 2981.01(B)(11)(a). An “instrumentality” is property

that is otherwise lawful to possess but is used or intended to be used in an offense. R.C.

2981.02(A)(3). In determining whether property was used or intended to be used in the

commission of an offense, the trier of fact should consider (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; and (3) the extent to which the instrumentality furthered the

commission of the offense. R.C. 2981.02(B)(1), (2), and (3).

{¶34} The State must prove by a preponderance of the evidence that the property is

subject to forfeiture. R.C. 2981.04(B); R.C. 2981.02. On review, an appellate court

may not reverse the trial court’s decision where there is “some competent, credible

evidence going to all the essential elements of the case.” State v. Hall, 8th Dist. No.

92952, 2010-Ohio-1665, ¶ 22, quoting C.E. Morris Co. v. Foley Constr. Co., 54 Ohio

St.2d 279, 376 N.E.2d 578 (1978), syllabus.

{¶35} Timothy first contends that the trial court erred in ordering the forfeiture of

his automobile, $1,313 in cash seized during the search of his West Hedgewood

residence, and $280 in cash on his person at the time of his arrest because the State failed

to prove by a preponderance of the evidence that the cash constituted proceeds from drug

trafficking.
 {¶36} We first note that Timothy fails to make any specific argument on appeal

challenging the trial court’s order of forfeiture of his automobile; thus, we find no error in

the forfeiture of his automobile. See App.R. 12 and 16.

{¶37} Regarding the forfeiture of cash, the State argues that the money found in

Timothy’s West Hedgewood residence was likely involved in a criminal offense because

testimony was elicited at trial that “it is common in the drug trade to separate your drugs

from their proceeds.” However, this statement and the testimony at trial does not satisfy

the State’s burden of proving that the cash found in his home were proceeds or an

instrumentality from the commission of drug trafficking.

{¶38} First, Ohio courts have recognized that there is nothing inherently illegal

about possessing cash. State v. Golston, 66 Ohio App.3d 423, 431-432, 584 N.E.2d 1336

(1990), citing Chagrin Falls v. Loveman, 34 Ohio App.3d 212, 217, 517 N.E.2d 1005

(1986). To prove cash is subject to forfeiture, the State must demonstrate that it is more

probable than not, from all the circumstances, that the defendant used the items in the

commission of a criminal offense. Id.

{¶39} In this case, the cash was discovered in two separate areas during the search

of Timothy’s West Hedgewood residence. The testimony at trial revealed that although

cash was discovered, no firearms, drug paraphernalia, drugs, or other contraband was

found at his residence. Officer Brian Heffernan, who executed the search warrant of the

residence, admitted that nothing was discovered at the residence that would lead them to

believe that Timothy was involved in drug activity, but he seized the cash because it was
“proceeds of drug trafficking activities.” However, Officer Heffernan admitted at trial

that $1,300 is not a significant amount of money in the drug trafficking scene. In

rationalizing the small amount of money seized, the officer explained that the marijuana

discovered at the Scranton Road commercial building had not yet been harvested and

sold.

{¶40} “General testimony that cash was found in the home of one convicted of a

drug offense without evidence of the presence of drugs or drug paraphernalia, is

insufficient to prove any or all of the seized items were used in drug trafficking.”

Golston at 434. Moreover, the small amount of cash discovered also fails to indicate that

it was derived from drug trafficking. Accordingly, we find that the trial court’s

forfeiture order of the $1,313 seized from Timothy’s West Hedgewood residence was not

supported by competent, credible evidence.

{¶41} However, we do find that the forfeiture of the $280 cash found on

Timothy’s person at the time of arrest was properly forfeited. Competent and credible

evidence was presented that immediately prior to Timothy arriving at the Scranton Road

property he made a purchase at Cheap Hydroponics. The testimony by the officers and

detectives who conducted surveillance and who executed the search warrant of the

Scranton Road property revealed that Timothy was seen loading large bags of what

appeared to be soil in his van. The testimony also revealed that similar bags of soil were

recovered from the grow and preparation areas located at the Scranton Road property.
Accordingly, the State satisfied its burden that the cash found in Timothy’s pocket was an

instrumentality used in the commission of the offense.

{¶42} Regarding the forfeiture of the Scranton Road property, this court addressed

identical arguments raised by codefendant Todd in his appeal. See West, 8th Dist. Nos.

97398 and 97899, 2012-Ohio-6138. In rejecting the argument that the trial court erred in

forfeiting both parcels of property located at 2341 Scranton Road, this court stated:

The May 2010 [deed], conveyed both parcels of land, and referred to the
singular address of 2341 Scranton Road. Further, the two parcels were
merged for tax purposes. Throughout the proceedings, the property was
referenced by address; there was never any confusion or doubt about what
property was involved. On this record, the trial court properly forfeited the
entirety of the property * * * .

Id. at ¶ 50.

{¶43} Additionally, in West this court also rejected the argument that the value of

the marijuana was improper because the weight of the marijuana was not properly

determined; thus, forfeiture of the entire Scranton property was disproportionate to the

severity of the offense. Id. at ¶ 51.

{¶44} In finding that the weight was properly determined, this court, relying on

State v. Wolpe, 11 Ohio St.3d 50, 463 N.E.2d 384 (1984), held that the trial testimony

“demonstrated that the leaves and stalks were all attached, * * * therefore, weighing the

entire plant, including the mature stalks, was appropriate.” Id. at ¶ 55. This court also

reiterated the longstanding principle that “drugs ‘can be weighed as received * * *.’”

Id., quoting State v. Leonard, 4th Dist. No. 08CA24, 2009-Ohio-6191, ¶ 31. Therefore,
forfeiture of the entire Scranton Road property was not disproportionate to the severity of

the offense.

{¶45} Accordingly, we sustain Timothy’s assignment of error as it pertains solely

to the forfeiture of cash seized at his West Hedgewood residence, but overrule the other

arguments raised therein.

VI. Conclusion

{¶46} Judgment affirmed in part and reversed in part. The trial court’s judgment

is reversed as to its forfeiture order of the $1,313 seized from Timothy’s West

Hedgewood residence. The trial court’s judgment is also reversed as to its sentence on

both the trafficking in drugs and cultivation or manufacture convictions, and the case is

remanded for merger of those counts and the State’s election of which count to proceed

with on resentencing.

It is ordered that parties share equally in the costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

KATHLEEN ANN KEOUGH, JUDGE
MARY J. BOYLE, P.J., and
LARRY A. JONES, SR., J., CONCUR