Appellant's motion for the return of the guns was made pursuant to R.C. 2933.28. The majority based its decision to reverse on the fact that R.C. 2933.28 was misinterpreted to apply to "noncontraband" property.
I would hold that R.C. 2933.28 is inapplicable to the facts in this case. R.C. 2933.28 specifically provided that "property * * * seized under a search warrant shall be returned to the person in whose possession they were found, unless the possession of such articles is in itself an offense, in which case they shall be destroyed. * * *" (Emphasis added.)
In the case at bar, there is no evidence or claim that the guns were seized under a search warrant. Indeed, the pretrial motions to suppress were premised on the fact that a warrantless search of appellant's van was conducted on private premises and that it netted one gun in plain view and a second gun concealed in a purse. (Both guns were loaded, according to the indictment.)
R.C. 2923.13 states, in relevant part:
"(A) * * * [N]o person shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if any of the following apply:
"* * *
"(2) Such person is under indictment for or has been convicted of any felony of violence, * * *." (Emphasis added.)
(It is undisputed that the crime of intimidation is a felony of violence.) To invoke this section, an indictment (and not a conviction) is sufficient to satisfy the requirements of the law.
R.C. 2933.41(C) provided that:
"A person loses any right he may have to possession of property:
"(1) That was the subject, or was used in a conspiracy or attempt to commit, or in the commission, of an offense other than a traffic offense, and such person is a conspirator, accomplice, or offender with respect to the offense;
"(2) When, in light of the nature of the property or the circumstances of such person, it is unlawful for him to acquire or possess it."
The majority relies on the decision of State v. Lilliock (1982), 70 Ohio St.2d 23 [24 O.O.3d 64], for the proposition that forfeiture of property can only be ordered if R.C.2933.41(C)(1) and (2) are proven; and, since the state failed to prove that the weapons were used by appellant in the commission of an offense (R.C. 2933.41[C][1]), the majority concludes that the court erred in ordering the guns destroyed.
In my opinion, the Lilliock decision does not preclude the lower court from ordering appellant's guns destroyed. InLilliock, the offense of receiving stolen property was committed at a point prior to the time the property was placed in defendant's van. Since the van (which had been seized and impounded by the police) was neither (1) used in the commission of the offense, nor (2) unlawfully in the defendant's possession, the court refused to apply R.C. 2933.41(C).
The instant case involves a scenario quite different than that presented in Lilliock. Here, not only was appellant indicted for the crime of intimidation, but the property at issue (two loaded guns) is, in and of itself, inherently dangerous (as compared to a van).
Moreover, under R.C. 2933.41(C) the offender used the guns (the subject) in the attempt to commit the offense of *Page 212 carrying concealed weapons ("other than a traffic offense").
In light of the "nature of the property" (two loaded guns) or the "circumstances of such person" (indicted for intimidation), it was improper for him to acquire or possess them. I would not return the two loaded guns to appellant who was under indictment for a felony of violence (intimidation).
I would affirm.