[Cite as State v. Ihrabi, 2017-Ohio-8373.]

 

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

 MONTGOMERY COUNTY 

STATE OF OHIO 

Plaintiff-Appellee 

v. 

RIBHY IHRABI 

Defendant-Appellant

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C.A. CASE NO. 27277 

T.C. NO. 12-CV-2995 

(Civil Appeal from 

 Common Pleas Court) 

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O P I N I O N 

Rendered on the 31st day of October, 2017. 

. . . . . . . . . . . 

ADAM M. LAUGLE, Atty. Reg. No. 0092013, Assistant Prosecuting Attorney, 301 W. 

Third Street, 5th Floor, Dayton, Ohio 45422 

 Attorney for Plaintiff-Appellee 

 

EUGENE ROBINSON, Atty. Reg. No. 0010477, 131 N. Ludlow Street, Suite 304, Dayton, 

Ohio 45402 

 Attorney for Defendant-Appellant 

. . . . . . . . . . . . . 

 

FROELICH, J. 
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{¶ 1} Ribhy Ihrabi appeals from a judgment of the Montgomery County Court of 

Common Pleas, which overruled his objections to the magistrate’s decision and granted 

the State’s petition for forfeiture of currency. The trial court ordered that $34,255 be 

forfeited as “proceeds” and an “instrumentality.” For the following reasons, the trial 

court’s judgment will be affirmed in part, reversed in part, and remanded for further 

proceedings, as described below. 

I. Background and Procedural History 

{¶ 2} Ihrabi operated a business known as A&R1 Smoke Shop on Dayton-Yellow 

Springs Road in Fairborn. The business sold tobacco products, “herbal incense,” 

smoking accessories such as pipes, soda pop and other non-alcoholic beverages, and 

some clothing items and costume jewelry. Prior to October 17, 2011, approximately 50% 

of the business’s sales could be attributed to the sale of synthetic marijuana. 

{¶ 3} The record reflects that synthetic marijuana is the term for a variety of 

different chemical compounds that produce effects similar to marijuana; the compounds 

are usually sprayed onto plant material. Synthetic marijuana is usually smoked, and 

depending on the specific compound, the synthetic marijuana can be much more potent 

than marijuana. The synthetic drug known as “bath salts” is different from synthetic 

marijuana; it is derived from the drug Cathinone, which comes from the Khat plant. Bath 

salts typically come in powdered form, and their side effects and complications are more 

severe than those from synthetic marijuana. 

{¶ 4} On October 17, 2011, the sale of controlled-substance analogs, such as 

synthetic marijuana, became illegal in Ohio. See 2011 Sub.H.B. 64; State v. Shalash, 
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148 Ohio St.3d 611, 2016-Ohio-8358, 71 N.E.3d 1089 (concluding that H.B. 64 

criminalized controlled-substance analogs). After that time, Sergeant Rhett Close of the 

Riverside Police Department investigated the sale of synthetic marijuana and bath salts. 

His investigation led him to Ihrabi, and on April 19, 2012, Riverside police officers 

searched Ihrabi’s store, vehicle, apartment, and storage unit. Numerous items were 

seized, including approximately $34,255 in United States currency; $30,000 of that money 

was located in a trash can in Ihrabi’s apartment in Montgomery County. 

{¶ 5} On April 25, 2012, the State of Ohio filed a petition for civil forfeiture, pursuant 

to R.C. 2981.05,1 seeking the forfeiture of the $34,255 that had been seized by the police; 

the petition was assigned a civil case number, 2012-CV-2995, which is the matter on 

appeal. The State alleged that the currency was either contraband, proceeds, and/or an 

instrumentality of drug possession or drug trafficking. In his Answer, filed on July 9, 

2012, Ihrabi admitted that the police had removed approximately $34,255 in cash, as well 

as records pertaining to his business, but he denied the State’s additional allegations. 

{¶ 6} In November 2012, a grand jury declined to indict Ihrabi. 

{¶ 7} On December 27, 2012, Ihrabi moved for the release of his seized property. 

Ihrabi itemized fifteen items of personal property that were seized by the Riverside police, 

including paperwork, jars, receipts, packages of “Maya Blue” Spice, stickers, and cash 

found in various locations. Ihrabi noted that the State sought to forfeit only the seized 

currency, that the tangible property seized in Greene County was not necessary to the 

prosecution of charges in Montgomery County, and that a no true bill was filed in 

 

1 Effective April 6, 2017, the Ohio legislature substantially modified the statutes governing 

criminal and civil asset forfeiture. Sub.H.B. 347 (2016). All statutory references in this 

Opinion refer to the prior version of R.C. Chapter 2981. 
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Montgomery County concerning potential criminal charges. Ihrabi further stated that the 

seized items were necessary for him to conduct his business. 

{¶ 8} A forfeiture hearing on the State’s civil petition was held before a magistrate 

on August 21 and 22, 2013, following which the parties submitted post-trial memoranda. 

On January 9, 2014, the magistrate found, by a preponderance of the evidence, that Ihrabi 

had engaged in aggravated trafficking of drugs by selling a controlled substance or 

controlled substance analog. The magistrate further found that “the totality of the 

circumstances suggests that the money was ‘proceeds’ of the sale of synthetic marijuana 

and/or an ‘instrumentality’ that would be used to purchase additional synthetic marijuana 

for future sale at the Smoke Shop.” The magistrate concluded that the money was 

subject to forfeiture as proceeds and an instrumentality, because the seized cash was 

traceable to Ihrabi’s trafficking in synthetic marijuana generally, even if it could not be 

traced to specific transactions. Finally, with respect to the instrumentality finding, the 

magistrate found that forfeiture was not disproportionate to the offense of trafficking 

synthetic marijuana. 

{¶ 9} Ihrabi filed objections to the magistrate’s ruling. On December 2, 2014, the 

trial court overruled the objections and adopted the magistrate’s ruling. Ihrabi appealed 

from the trial court’s decision, State v. Ihrabi, 2d Dist. Montgomery No. 26537, but we 

dismissed that appeal for lack of a final appealable order. Id. (Decision and Final 

Judgment Entry (Feb. 20, 2015)). On August 24, 2016, the trial court filed an amended 

final entry, which overruled Ihrabi’s objections, adopted the magistrate’s decision, and 

ordered that the $34,255 be forfeited as proceeds and as an instrumentality and that the 

currency be distributed as follows: (1) $8,563.75 to the Prosecuting Attorney’s account, 
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and (2) $25,691.24 for use and/or disposition by the law enforcement trust funds of the 

City of Riverside. 

{¶ 10} Ihrabi appeals from the trial court’s judgment, raising two assignments of 

error. 

II. Order of Forfeiture 

{¶ 11} On appeal, Ihrabi summarizes his arguments as follows: 

1. There was no competent evidence Defendant sold banned tobacco 

products at his store or that he was aware anyone else did so. 

2. Plaintiff failed to establish that money seized from Defendant’s store, 

automobile and apartment was subject to forfeiture. 

In essence, Ihrabi claims that the trial court erred in concluding that the seized currency 

was property subject to forfeiture. 

{¶ 12} R.C. Chapter 2981 permits “[a] law enforcement officer [to] seize property 

that the officer has probable cause to believe is property subject to forfeiture.” R.C. 

2981.03(A)(2). A State or political subdivision acquires provisional title to property 

subject to forfeiture, upon commission of an offense giving rise to forfeiture. R.C. 

2981.03(A)(1). This provisional title is subject to claims of third parties and a final 

forfeiture adjudication. R.C. 2981.03(A)(1); State v. Jamison, 2d Dist. Montgomery No. 

23211, 2010-Ohio-965, ¶ 21. 

{¶ 13} R.C. 2981.02 allows the forfeiture of contraband, proceeds, and certain 

instrumentalities. See R.C. 2981.01(B)(13) (defining “property subject to forfeiture”); 

State v. Moreno, 2017-Ohio-479, __ N.E.3d __, ¶ 20 (2d Dist.); State v. Recinos, 5th Dist. 

Richland No. 14CA9, 2014-Ohio-3021, ¶ 21. In cases involving unlawful goods, 
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“proceeds” means any property derived directly or indirectly from an offense. R.C. 

2981.01(B)(11)(a). “ ‘Proceeds’ may include, but is not limited to, money or any other 

means of exchange.” Id. For purposes of the forfeiture statute, an “offense” is defined 

as “any act or omission that could be charged as a criminal offense or a delinquent act, 

whether or not a formal criminal prosecution or delinquent child proceeding began at the 

time the forfeiture is initiated.” R.C. 2981.01(B)(10). An “instrumentality” is “property 

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

2981.01(B)(6). Money can also constitute an instrumentality. Id. 

{¶ 14} A prosecuting attorney may pursue forfeiture of seized property in a criminal 

proceeding under R.C. 2981.04, a civil proceeding under R.C. 2981.05, or both. R.C. 

2981.03(F). Criminal forfeiture is initiated by including in the charging instrument a 

specification consistent with R.C. 2941.1417 or by providing the defendant with “prompt 

notice,” in conformity with Crim.R. 7(E). R.C. 2981.04(A)(1) and (A)(2). In contrast, a 

civil forfeiture proceeding is initiated by the prosecutor’s filing of a civil complaint 

requesting the forfeiture of property that is located within the jurisdiction of the 

prosecutor’s political subdivision and that is alleged to be connected to an offense as 

contraband, proceeds, or an instrumentality. R.C. 2981.05(A). The forfeiture 

proceedings against Ihrabi were civil in nature. 

{¶ 15} “In a civil forfeiture proceeding brought under R.C. 2981.05, the prosecutor 

must prove by a preponderance of the evidence that the property is subject to forfeiture 

because the property meets the definition of contraband, proceeds, or an instrumentality. 

See R.C. 2981.05(D). The trial court shall issue a civil forfeiture order if the court 

determines that the prosecutor has met his burden under the statute and a finding is 
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made, when required, that forfeiture is not disproportionate to the severity of the offense. 

Id.” In re Forfeiture of Property of Rhodes, 2d Dist. Montgomery No. 25464, 2013-Ohio3046, ¶ 9. 

A. Evidence that Ihrabi Committed an Offense 

{¶ 16} At the forfeiture hearing, the State presented three witnesses: (1) Sergeant 

Close, (2) Corey Hernandez, a former employee of A&R1 Smoke Shop, and (3) Laureen 

J. Marinetti, the chief forensic toxicologist at the Miami Valley Regional Crime Lab 

(MVRCL). Ihrabi testified on his own behalf, and offered two additional witnesses: (1) 

Teresa Budd, another former employee of A&R1 Smoke Shop, and (2) Richard Rosinski, 

a distributor. 

{¶ 17} Sgt. Close testified that the investigation into Ihrabi’s sale of synthetic 

marijuana stemmed from the officer’s investigation of One Stop (which Close also referred 

to as Short Stop), a convenience store operated by Hossein Mirdamad on Linden Avenue 

in Riverside. In November 2011, Close and other officers searched One Stop, pursuant 

to a search warrant, and found a large quantity of bath salts and synthetic marijuana. At 

that time, Mirdamad had identified “Robbie” as his supplier. 

{¶ 18} A second search of One Stop was conducted in April 2012, and Mirdamad 

told investigators that Robbie was having another person, “Steve,” supply for him. The 

officers later identified “Steve” as Ghaleb Salah. Salah delivered bath salts to Mirdamad 

as part of a controlled buy, and the officers found hundreds of units of synthetic marijuana, 

in addition to bath salts, inside Salah’s vehicle; the box in the vehicle was marked “A&R1 

Smoke Shop.” (Mirdamad was subsequently convicted of aggravated trafficking in 

drugs, among other offenses.) 
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{¶ 19} On April 17, 2012, officers executed a search warrant at Salah’s residence 

and located thousands of units of synthetic marijuana, several hundred units of bath salts, 

guns, money, and shipping information. Shipping labels inside Salah’s residence were 

addressed to A&R1 Smoke Shop on Dayton-Yellow Springs Road. Close testified, “We 

also found other documents that led to that [A&R1 Smoke Shop] with his [Ihrabi’s] name 

on it and that address.” (Salah was subsequently convicted of aggravated possession 

of drugs and aggravated trafficking in drugs.) 

{¶ 20} Sergeant Close obtained FedEx records that showed deliveries from known 

distributors of synthetic marijuana and/or bath salts from around the country; the records 

had Ihrabi’s name and address on them. 

{¶ 21} On April 19, 2012, Close, along with other members of his police 

department and members of the ACE Task Force, executed a search warrant at A&R1 

Smoke Shop. In the back area of the store, the officers found “thousands of empty 

containers, five-gram clear containers, in addition to labeling for known names of 

synthetic marijuana.” Close testified that the five-gram containers were “identical or at 

least similar” to containers in which he had previously found synthetic marijuana. 

{¶ 22} The officers located one jar of suspected synthetic marijuana labeled as 

“Blue Sky” and a one-gram packet of suspected synthetic marijuana labeled “Maya Blue.” 

An empty package of “Flameboy” was found but not collected; Close testified that 

Flameboy is “another name that has been used in other investigations for synthetic 

marijuana” and that it was also located at Mirdamad’s shop. 

{¶ 23} The officers also found “shipping statements, invoices, with other shipping 

companies or retail companies that sell synthetic marijuana and/or bath salts,” as well as 
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lab reports which purported to state the chemical compounds contained in the namebrand synthetic marijuana. Close testified that, through his investigations, he has found 

that those lab reports are not accurate. Invoices at the shop stated “Ordered by Robbie” 

and included the name and address of A&R1 Smoke Shop. 

{¶ 24} At the time of the raid, Ihrabi had $70 on his person, the store’s cash register 

contained $435, and $250 was located in a filing cabinet in the back portion of the store. 

$3,500 was found in Ihrabi’s Honda, located outside the store. 

{¶ 25} Sgt. Close testified that, when he spoke with Ihrabi, Ihrabi initially stated 

that he had stopped selling synthetic marijuana when it was banned in Ohio. Ihrabi later 

told Close that he had stopped selling what he was told was illegal, but continued to sell 

the synthetic marijuana that was still legal; Ihrabi told Close that he had never sold bath 

salts. Ihrabi admitted that he knew Salah, and initially stated that he had known Salah 

for 30 years. Ihrabi later stated that he had known Salah for eight years, but had not 

seen Salah in six or seven months. The State presented a photo found on Salah’s 

phone, taken approximately four months before the raid on A&R1 Smoke Shop, which 

showed Salah and Ihrabi. 

{¶ 26} Ihrabi consented to a search of a storage locker where he stores items from 

the shop, of his vehicle, and of his apartment. The officers found counterfeit shoes and 

a “knockoff” of Viagra, but no synthetic marijuana or bath salts. The officers originally 

thought the Viagra was bath salts, and Close noticed a “visible change in Mr. Ihrabi’s 

demeanor” when the officer who found the drugs stated what he thought he had found. 

Close also noticed, based on the dust pattern on the floor, that additional boxes had 

recently been there. 
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{¶ 27} In the apartment, the officers found $30,000 in cash in Ihrabi’s kitchen trash 

can under the trash bag. The officers also found a travel itinerary to Las Vegas and 

invoices from companies which Close knew, from his experience, were involved in 

investigations of synthetic marijuana. 

{¶ 28} In testifying about the invoices recovered from Ihrabi, Sgt. Close indicated 

that synthetic marijuana was listed as “incense” or “Spice,” not as synthetic marijuana. 

Close indicated the listed prices for incense that was actually synthetic marijuana were 

significantly higher ($40 to $80 per ounce) than traditional (legal) incense ($0.50 to $2 per 

ounce). Close also testified about notebooks seized from inside A&R1 Smoke Shop. 

With respect to State’s Exhibit 72, he indicated that the notebook listed “Rave On” and 

“Zen,” which are brands of bath salts; Close stated that this information was consistent 

with Mirdamad’s statements to Close that Robbie was his supplier. 

{¶ 29} Jennifer Watson of MVRCL analyzed the contents of the jar labeled “Blue 

Sky” and the packet labeled “Maya Blue;” the parties stipulated to Watson’s written report 

(State’s Exhibit 3). According to the report and stipulation, the Blue Sky jar contained 

3.10 grams (plus or minus 0.04 grams) of AM-2201, as well as RCS-4. The chemical 

structures of those substances are substantially similar to the chemical structure of JWH018, a Schedule I drug. The Maya Blue packet contained 2.78 grams (plus or minus 

0.04 grams) of JWH-018, a Schedule I controlled substance. 

{¶ 30} Laureen Marinetti, chief forensic toxicologist at MVRCL, testified that AM2201 is “one of those compounds that was created to be similar to or in the family of 

tetrahydrocannabinol [the chemical in marijuana] * * *, and its stimulant, depressant, or 

hallucinogenic effects are greater than the effects of marijuana. Marinetti testified that 
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RCS-4 is another compound in the family of tetrahydrocannabinol, and its effects are 

similar to marijuana. She stated that JWH-018 was one of the first compounds to mimic 

marijuana, and it is now a Schedule I controlled substance; JWH-018’s effects are greater 

than marijuana, but not as great as AM-2201. 

{¶ 31} Corey Hernandez testified that he worked at A&R1 Smoke Shop from July 

2011 until February or March 2013; he worked three to five days per week, nine hours 

each day, usually noon to 9:00 p.m. Another employee and/or Ihrabi were also in the 

store when Hernandez worked. Hernandez assisted customers and ran the cash 

register. Hernandez referred to Ihrabi as “Robbie.”2

{¶ 32} Hernandez testified that, after October 17, 2011, he sold some products that 

were “Ohio-safe products.” “Ohio-safe products” had a sticker that said “Ohio Safe,” and 

Robbie told Hernandez that the products were legal. At one point, Hernandez testified 

that he did not sell any products that were not Ohio-safe products after October 17, but 

he later testified that he had sold “incense” and “Spice,” meaning synthetic marijuana, 

that did not have the “Ohio Safe” label on it. Hernandez indicated that some of the 

products that had been labeled “Ohio Safe” began to look different and no longer carried 

the label. Hernandez stated that the sale of synthetic marijuana slowed, but did not stop, 

after October 17, 2011. 

{¶ 33} Hernandez testified that he was at A&R1 Smoke Shop when the store was 

searched by law enforcement on April 19, 2012. Hernandez stated that he assumed the 

officers were there “for Spice.” Hernandez indicated that the store was “selling it,” and 

 

2 Both the transcript of the forfeiture hearing and various invoices are inconsistent 

regarding the spelling of “Robby.” It appears as both “Robby” and “Robbie.” For sake 

of consistency, we elect to use “Robbie” throughout.
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he personally sold synthetic marijuana “a couple of times.” Customers would ask for 

“incense,” and Hernandez would get the synthetic marijuana from a location near the cash 

register. Hernandez testified that Robbie told him the price for the five-gram jar, which 

could be $5 or $10 or higher. Hernandez recalled several brands, such as 303 

California, California Kush, and Fire. Hernandez stated that customers would come in 

to buy it “to get high on” and they would smoke it. Some customers asked Hernandez 

which one could get them the highest for the price. Hernandez testified that “usually 

more expensive was either better or bigger.” Hernandez heard Robbie tell customers it 

would be “the best of the best.” 

{¶ 34} Hernandez testified that A&R1 Smoke Shop did not sell bath salts. 

However, he believed that a person called Steve (Salah) was selling bath salts from the 

store. Hernandez testified that “junkie-looking-like people would come in and he [Salah] 

would leave with those people * * * and be gone about five, ten minutes, 15, 20 maybe * 

* * and then he’ll come back and the customer wouldn’t be back with him.” Hernandez 

recalled that one customer asked for bath salts and stopped coming, but started coming 

again when Salah was there. Hernandez stated that Salah was at the store two or three 

times per week for four or five hours per day, and that Salah would sit behind the counter; 

three or four people came to see Salah on a single day. Hernandez testified that Salah 

was at the store the week before the April 19, 2012 search of A&R1 Smoke Shop. 

{¶ 35} During his testimony, the prosecutor showed Hernandez a photograph of 

the five-gram jars. Hernandez testified that the incense was sold in jars like that, and 

that nothing else was sold from the store in those jars. Hernandez testified that, after the 

April 19 raid, he did not see Robbie sell any synthetic drugs from the store, and the sale 
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of paraphernalia slowed “a lot.” Hernandez estimated that the number of customers was 

“cut in half maybe.” 

{¶ 36} Hernandez testified that, in the few days before the April 19 raid, Ihrabi 

acted “more paranoid” and told customers, “I’m not selling it no more.” After the raid, 

Ihrabi told Hernandez that the police were only looking for bath salts. 

{¶ 37} The first witness for Ihrabi was Teresa Budd, an employee at A&R1 Smoke 

Shop since February 2011. She testified that she was familiar with one kind of synthetic 

marijuana – Spice or K2 – and that it was illegal. Budd stated that the store never sold 

Spice, but sold herbal incense, which Budd believed was different from synthetic 

marijuana. Budd stated that the store obtained herbal incense products (such as 

California Chronic and Funky Monkey) from a company called S.A. Wholesale. 

{¶ 38} Budd testified that the store stopped carrying herbal incense when the law 

changed in October 2011; at that time, Ihrabi got rid of the herbal incense that he had by 

sending it to business associates in other states, sending product back to the companies 

from which he had gotten it, or putting it in the trash. After October 2011, Budd was not 

aware of any herbal incense remaining in the store or being ordered by Ihrabi. She 

stated that the policy if any customer asked for synthetic marijuana was to inform the 

customer that it was illegal and the store did not carry it. Budd relied on the chemical 

reports that came with the products and her employer’s knowledge as to whether a 

product contained illegal substances. Budd stated that the store did not sell bath salts. 

Budd was not present on April 19, 2012, when the search warrant was executed. 

{¶ 39} Budd was familiar with Salah, and stated he would come to the store “twice 

a week sometimes, but not every week.” She was not aware of Salah’s selling any illegal 
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substances to people who came into the store. 

{¶ 40} Richard Rosinski testified that he met Ihrabi in 2009, when he (Rosinski) 

worked for TWD Distributing, a company from which Ihrabi’s store had purchased 

products. Rosinski’s sales territory changed in 2010, but he remained friends with Ihrabi. 

Rosinski was aware that, in November 2010, the federal government banned five different 

chemicals nationwide, and four more were banned in March 2011. Rosinski indicated 

that some companies reformulated their products after their products became illegal. 

Rosinski occasionally visited Ihrabi’s store after October 17, 2011, and he did not see any 

products that violated state or federal law. Rosinski once saw Ihrabi turn a customer 

away who was seeking an illegal product. 

{¶ 41} Finally, Ihrabi testified that he discarded any merchandise with synthetic 

chemicals prior to October 17, 2011, and that he told his employees that the merchandise 

could not be sold any more. Ihrabi stated that he regularly receives samples from 

companies, but they are thrown away. Ihrabi indicated that the items found on April 19, 

2012, were intended to be thrown away. 

{¶ 42} Ihrabi denied that Hernandez sold illegal products from his store, and he 

denied knowing of the sale of bath salts by Salah or anyone else outside his store. Ihrabi 

also denied selling products to Mirdamad or supplying him with herbal incense. Ihrabi 

testified that after October 17, 2011, he only sold herbal smoke, which was legal. When 

asked about FedEx packages picked up by various people, Ihrabi denied knowing about 

the orders and suggested that others may have used his store’s name. 

{¶ 43} Ihrabi testified that, on April 19, 2012, he informed officers about his storage 

unit, and he agreed to the search of his storage unit, car, and apartment. He stated that 
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he informed Sgt. Close about the money in the car and the apartment. Ihrabi testified 

that the money was from the sale of legitimate products in his business. 

{¶ 44} In finding that the State had met its burden to establish that the seized 

currency was subject to forfeiture, the magistrate found the testimony of Hernandez “to 

be highly credible and convincing.” The magistrate stated: “Mr. Hernandez’[s] testimony 

indicates that Respondent continued to sell synthetic marijuana from his store even after 

the ban and that Respondent facilitated the sale of ‘bath salts’ by another individual, Mr. 

Salah aka ‘Steve.’ ” The magistrate found Ihrabi’s testimony that he stopped selling 

synthetic marijuana after the October 17, 2011 ban to be not credible. The magistrate 

found that, after October 17, 2011, Ihrabi “pre-screened” customers, only selling to those 

who asked for synthetic marijuana by a certain name. The magistrate also found that 

circumstantial evidence -- such as Ihrabi’s demeanor during the search of the storage 

unit, the presence of labeling and packaging material for synthetic marijuana, and 

indications that boxes had recently been removed from the storage locker – also 

suggested that Ihrabi continued to sell synthetic marijuana after the ban. The trial court 

adopted the magistrate’s findings. 

{¶ 45} We recognize that only approximately six grams of synthetic marijuana were 

located in Ihrabi’s store. However, based on the totality of the evidence, the trial court 

reasonably found that Ihrabi continued to sell synthetic marijuana after the October 2011 

ban. Hernandez’s testimony that Ihrabi continued to sell synthetic marijuana after the 

ban was substantiated, in part, by Ihrabi’s business records and testimony. When the 

prosecutor pointed out on cross-examination that, according to tax returns, A&R1 Smoke 

Shop’s cost of goods in 2009 was $198,282 and had risen to $1,004,265 in 2011, Ihrabi 
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responded that, in 2009, business was “slow,” but he began to make money when he sold 

“herbal incense.” (Tr. at 423.) Ihrabi stated: “We invested our money in that business 

and, yes, in 2000 – if you go back to 2009 and you look [at] my inventory in the store in 

the beginning of the year, I have maybe 20, $25,000. If you look in my inventory the 

beginning of 2011 was $129,000 or more maybe, you know, $135,000 I have in 

merchandise I have in my store.” The notebooks of the store’s monthly receipts for 

November 2009 (Ex. 77), January 2010 (Ex. 78), October 2010 (Ex. 79), December 2010 

(Ex. 81), March 2012 (Ex. 82), and April 2012 (Ex. 83), show that the monthly sales in 

November 2009 and January 2010 were significantly lower than the monthly sales in 

October 2010, December 2010, March 2012, and April 2012. 

{¶ 46} Ihrabi indicated that, in 2011, he purchased a large amount of herbal 

incense from S.A. Wholesale. Invoices and shipping records seized by the State 

indicated that A&R1 Smoke Shop continued to purchase goods from S.A. Wholesale into 

2012. A February 7, 2012 invoice from S.A. Wholesale showed that Ihrabi had made 

purchases totaling more than $300,000 since October 19, 2011. Shipping records 

indicated that Ihrabi placed numerous orders with Spice King, another distributor known 

to law enforcement for distributing synthetic marijuana. 

{¶ 47} There was no evidence that Ihrabi personally sold bath salts from A&R1 

Smoke Shop, but the trial court could have reasonably concluded that Ihrabi knew Salah 

was selling bath salts out of his store. Hernandez described Salah’s access to the store 

and how Salah used the store as a location to meet customers. In addition, Sgt. Close 

testified that, when Salah delivered bath salt to Mirdamad as part of a controlled buy, the 

box in the vehicle was marked “A&R1 Smoke Shop.” In addition, when officers executed 
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a search warrant at Salah’s residence, they located thousands of units of synthetic 

marijuana, several hundred units of bath salts, guns, money, and shipping information; 

the shipping labels inside Salah’s residence were addressed to A&R1 Smoke Shop on 

Dayton-Yellow Springs Road. The State’s evidence also included two checks from 

A&R1 Trading, Inc. (the official name of Ihrabi’s business) to Aashir Z Distributors in 

March 2012: one for $5,000, and a second for $3,000; another exhibit indicated that Salah 

was associated with Aashir Z Distributors’ account. 

{¶ 48} In summary, upon review of the evidence at the forfeiture hearing, the trial 

court’s conclusion that Ihrabi had committed a felony offense, i.e., aggravated trafficking 

in drugs, was not against the manifest weight of the evidence. 

{¶ 49} Ihrabi’s first assignment of error is overruled. 

B. Did Currency Constitute Proceeds or an Instrumentality? 

{¶ 50} As stated above, R.C. 2981.02(A)(2) allows for the forfeiture of “[p]roceeds 

derived from or acquired through the commission of an offense” and of certain 

instrumentalities. There is nothing inherently illegal about possessing cash. Dayton 

Police Dept. v. Byrd, 189 Ohio App.3d 461, 2010-Ohio-4529, 938 N.E.2d 1110, ¶ 11 (2d 

Dist.), citing State v. Roberts, 102 Ohio App.3d 514, 518, 657 N.E.2d 547 (9th Dist.1995). 

{¶ 51} The burden is on the state to show that the money has a connection to the 

underlying criminal offense. Byrd at ¶ 10, citing State v. Ali, 119 Ohio App.3d 766, 770, 

696 N.E.2d 285 (8th Dist.1997). The state “must demonstrate that it is more probable 

than not, from all the circumstances, that the defendant used [the money] in the 

commission of criminal offenses.” (Citations omitted.) Ali at 769. “The same logic 

applies regarding sufficient proof that the money was proceeds of the criminal offense.” 
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Byrd at ¶ 10. 

{¶ 52} In analyzing whether the money seized from Ihrabi was subject to forfeiture, 

the magistrate noted that there was “no Ohio case on point regarding whether an entire 

sum of money may be seized as proceeds (or an instrumentality) when it is probable that 

at least some of the money was legitimately gained.” While acknowledging the 

differences in Ohio’s and Michigan’s statutes, the magistrate followed the reasoning in In 

re Forfeiture of $167,200, 2006 WL 2739316 (Mich.App. Sept. 26, 2006), which described 

the applicable law, stating: 

Pursuant to MCL 333.7521(1)(f), anything that can be traced to an 

exchange for a controlled substance is subject to forfeiture. “In order for 

an asset to be ordered forfeited, the trial court must find that there is a 

substantial connection between that asset and the underlying criminal 

activity.” If the asset has only an incidental or fortuitous connection to the 

criminal activity, forfeiture is not warranted. However, the connection 

between the currency and the criminal activity does not have to be related 

to a specific instance of drug dealing; rather, the currency need only be 

traceable to drug trafficking in general. 

(Citations omitted.) Id. at *1. 

{¶ 53} Applying this case law, the magistrate court found, and the trial court 

agreed, that all of the money seized from Ihrabi constituted proceeds and/or an 

instrumentality of his illegal activities. The magistrate reasoned: 

Because Respondent’s drug trafficking activities were based out of 

the Smoke Shop, the Magistrate finds that the money seized from the shop, 
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as well as the money in Respondent’s car (intended to be deposited in the 

bank), on Respondent’s person, and in Respondent’s apartment is subject 

to forfeiture as “proceeds.” The Magistrate is aware that the Smoke Shop 

sold legitimate, legal merchandise and that some business revenue was 

generated from these sales. However, a significant portion of the Smoke 

Shop’s revenue was generated from the sale of synthetic marijuana, as 

indicated by the testimony of Corey Hernandez. Inside the Smoke Shop, 

officers found drugs, scales, packaging materials including small plastic 

jars, labels with the names of known synthetic marijuana brands, 

documentation for the purchase of products with names of known synthetic 

marijuana names, and pipes. Sgt. Close testified that the shop had posters 

of Bob Marley and other décor consistent with a “drug culture.” The money 

found at Respondent’s apartment, $30,000.00 in cash, was found in the 

bottom of a trash can, under a trash bag. This is not a typical way to store 

legitimate business revenue. Additionally, other documentation from 

known distributors of synthetic marijuana was found at the apartment. In 

sum, the totality of the circumstances suggests that the money was 

“proceeds” of the sale of synthetic marijuana and/or an “instrumentality” that 

would be used to purchase additional synthetic marijuana for future sale at 

the Smoke Shop. 

(Footnote omitted.) 

{¶ 54} Forfeiture statutes vary throughout the United States. See generally

Edgeworth, Dee R., Asset Forfeiture: Practice and Procedure in State and Federal Courts 
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(3d Ed.2014). While we do not adopt the magistrate’s recitation of Michigan law, we 

agree with the trial court that currency subject to forfeiture based on drug trafficking need 

not be traced to a specific drug transaction, as long as it is traceable to drug trafficking in 

general. 

{¶ 55} As with the trial court, we have found no Ohio authority detailing what 

currency may be seized when lawfully-obtained currency is likely commingled with 

currency that constitutes proceeds of drug trafficking. We are persuaded by the 

approach taken by several federal circuits, which have stated: 

Because money is fungible, once funds obtained from illegal activity are 

combined with funds from lawful activity in a single account, the “dirty” and 

“clean” funds cannot be distinguished from each other. As such, “[a] 

requirement that the government trace each dollar of the transaction to the 

criminal, as opposed to the non-criminal activity, would allow individuals 

effectively to defeat prosecution for money laundering by simply 

commingling legitimate funds with criminal proceeds.” 

United States v. Silver, 864 F.3d 102, 115 (2d Cir.2017), quoting United States v. Moore, 

27 F.3d 969, 976-77 (4th Cir.1994). Nevertheless, the commingling of cash proceeds of 

drug transactions with funds derived from legitimate sources does not render the entire 

amount of money subject to forfeiture as proceeds. See, e.g., U.S. v. Pole No. 3172, 

Hopkinton, 852 F.2d 636 (1st Cir.1988). Rather, the State is entitled to obtain forfeiture 

only of those amounts which constituted proceeds and/or an instrumentality of the illegal 

activity. 

{¶ 56} In the case before us, Ihrabi operated a business, A&R1 Smoke Shop, 
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which sold legitimate goods, such as tobacco, shirts, hookah pipes, and other items. 

Ihrabi admitted that, prior to October 17, 2011, he sold herbal incense. Hernandez, an 

employee, testified that, after October 17, 2011, the sales of illegal herbal incense were 

reduced. However, at Ihrabi’s direction, Hernandez continued to sell Spice and other 

illegal herbal incense to select customers (ones who asked for “incense”) from October 

17, 2011, until the April 2012 raid by the police. 

{¶ 57} Upon review of the evidence, it was established by a preponderance of the 

evidence that a significant portion of the cash located at A&R1 Smoke Shop and Ihrabi’s 

vehicle came from the sale of illegal synthetic marijuana at the shop. Hernandez’s 

testimony suggests that he sold synthetic marijuana in the same manner as legal 

products; there was no testimony that the sales of synthetic marijuana occurred in a 

different portion of the store (to the contrary, he indicated that the synthetic marijuana 

was kept by the cash register) or that the proceeds from the sale of synthetic marijuana 

were placed in a special location separate from legitimate sales. Ihrabi’s business 

records reflected that revenue at A&R1 Smoke Shop substantially increased once the 

business started selling synthetic marijuana and that the increased revenue continued 

into 2012. The business records, invoices, and shipping records supported a conclusion 

that Ihrabi continued to purchase synthetic marijuana into 2012, which accounted for the 

continued increase in revenue. 

{¶ 58} Ihrabi testified that the $30,000 the located at his apartment was his 

commission from his business (as reflected in the business’s tax return) and that it was 

derived from the sale of legitimate products at his business, but the trial court could have 

reasonably concluded that any commission from his business included a substantial 
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amount of illegal proceeds. 

{¶ 59} While there is evidence from which the trial court could have reasonably 

concluded that some, if not most, of the seized currency constituted proceeds, the record 

does not support a conclusion that all of the money seized from Ihrabi were proceeds of 

criminal activity. Stated simply, the money seized from Ihrabi came from the sales from 

A&R1 Smoke Shop, which sold both legal and illegal goods. The State has not 

demonstrated that all of the seized funds constituted proceeds. 

{¶ 60} It appears that the State lacked documentation that would have been helpful 

to establish a specific amount of proceeds. During cross-examination of Ihrabi, the 

prosecutor questioned Ihrabi about the extent of the business records that had been 

provided to the State during discovery. The prosecutor stated: 

You gave me your tax return. You didn’t give me any of the information so 

I know how – where your money was coming and going. And for the whole 

year of 2011, the whole time you were ordering from Spice Kings and SA 

Wholesale, I didn’t get anything from you on how – what money you were 

bringing in and what money you were spending, you know, where this 

money was coming from and where it was going. 

Regardless, the State was not required to trace the store’s revenue to specific 

transactions, and there was some evidence regarding the amount of the store’s revenue 

that likely came from the sale of synthetic marijuana. 

{¶ 61} The record also does not support a conclusion that all of the seized money 

constituted an instrumentality. An “instrumentality” is “property otherwise lawful to 

possess that is used in or intended to be used in an offense.” R.C. 2981.01(B)(6). As 
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stated above, money can constitute an instrumentality. Id. 

{¶ 62} Not all instrumentalities are subject to forfeiture. To be subject to forfeiture, 

the instrumentality must be used or intended for use in the commission of (1) a felony or 

(2) a misdemeanor, when forfeiture is specifically authorized by a section of the Revised 

Code or by a municipal ordinance that creates the offense or sets forth its penalties, or 

(3) an attempt to commit, complicity in committing, or a conspiracy to commit an offense 

described above. R.C. 2981.02(A)(3). In addition, in determining whether the alleged 

instrumentality was used or intended to be used in a manner sufficient to warrant its 

forfeiture, the trier of fact must 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; (3) The extent to which the instrumentality furthered the commission of, or 

attempt to commit, the offense.” R.C. 2981.02(B). 

{¶ 63} Here, there was evidence that A&R1 Trading Company had a business 

checking account, that deposits were regularly made to that account, and that checks 

were written from that account to pay for his inventory. Payments from that account 

included checks to Salah, who apparently was involved in the trafficking of synthetic 

marijuana and bath salts. Ihrabi testified that the money located in his vehicle was meant 

to be deposited at the bank. Ihrabi testified that he had not prepared a deposit slip for 

that money, because he intended to add more money to the deposit. As with its 

conclusion regarding proceeds, the trial court could have reasonably concluded that “a 

significant portion” of the money from the store and from Ihrabi’s vehicle and person was 

intended to be used in the purchasing and/or payment for synthetic marijuana. 
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{¶ 64} There was additional evidence that Ihrabi purchased synthetic marijuana 

from S.A. Wholesale in Texas, and that he used large amounts of cash to pay his S.A. 

Wholesale invoices. Ihrabi testified that he had traveled by airplane with large sums on 

several occasions, and he detailed on cross-examination that he had flown with $47,000 

or $56,000 one time, $95,000 a second time, and $100,000 a third time; each time he 

was traveling to Texas to pay a S.A. Wholesale invoice. The photographs of Ihrabi’s 

apartment show that it was sparsely furnished, but the police located a S.A. Wholesale 

invoice, travel plans to Las Vegas (where Ihrabi had attended trade shows for distributors 

and manufacturers), and a business card for another incense distributor. The trial court 

could have reasonably concluded that the entire $30,000 in Ihrabi’s apartment was 

intended to be used to pay a S.A. Wholesale invoice. Moreover, the trial court 

reasonably concluded that forfeiture of the $30,000 as an instrumentality was not 

disproportionate to the offense of trafficking in synthetic marijuana. 

{¶ 65} The possession of currency, even a large amount of hidden cash, is not 

inherently illegal. And there is evidence that Ihrabi lawfully used cash when operating 

his business, such as by paying Hernandez his salary in cash. (Hernandez admitted, 

however, to selling synthetic marijuana as part of his employment at A&R1 Smoke Shop.) 

Nevertheless, the trial court could have reasonably concluded that the State proved, by 

a preponderance of the evidence, that Ihrabi intended to use the $30,000 located in his 

apartment to pay for illegal synthetic marijuana and was thus subject to forfeiture as an 

instrumentality. 

{¶ 66} In summary, the State established, by a preponderance of the evidence, 

that all of the $30,000 in cash seized from Ihrabi’s apartment constituted an 
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instrumentality, and the trial court did not err in ordering that sum to be forfeited. As for 

the additional currency seized from Ihrabi, the trial court reasonably concluded that “a 

significant portion of the Smoke Shop’s revenue was generated from the sale of synthetic 

marijuana.” However, the trial court erred therefore in ordering all of the remaining 

$4,255 ($70 from Ihrabi’s person, $435 from the store’s cash register, $250 from the filing 

cabinet in the back portion of the store, and $3,500 from Ihrabi’s Honda) to be forfeited 

when there was evidence, as noted by the trial court, that at least a portion of the store’s 

revenue was from legal products. The matter must be remanded for the trial court to 

determine whether all, some, or none of the $4,255 is subject to forfeiture. 

{¶ 67} We realize that it may be difficult to determine, with computational certainty, 

how much of the remaining $4,255 constituted proceeds and/or an instrumentality. It 

would indeed be simpler to hold, once it is determined that a “significant portion” of 

fungible property is subject to civil forfeiture, that all of the property is subject to forfeiture, 

or at least that it shifts the burden to the owner to show what portion was legal proceeds. 

But the Ohio civil forfeiture statute places the burden on the State, which, after all, is 

seeking to take property from its (until shown otherwise) rightful owner. Consistent with 

our view that the State need not trace money to specific transactions, the court need not 

find with accounting precision the amount of Ihrabi’s currency that constituted 

proceedings and/or an instrumentality. Rather, the trial court may make reasonable 

extrapolations from the facts which were established by a preponderance of the evidence. 

{¶ 68} Ihrabi’s second assignment of error is sustained in part and overruled in 

part. 

III. Conclusion 
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{¶ 69} The trial court’s judgment will be affirmed to the extent that it determined 

that the $30,000 from Ihrabi’s apartment was subject to forfeiture. The trial court’s order 

of forfeiture regarding the $4,255 will be reversed, and the matter will be remanded for 

the trial court to determine whether all, some, or none of the $4,255 constituted proceeds 

and/or an instrumentality. Upon remand, the trial court may again determine how the 

forfeited property should be distributed. 

. . . . . . . . . . . . . 

WELBAUM, J. and TUCKER, J., concur. 

Copies mailed to: 

Adam M. Laugle 

Eugene Robinson 

Hon. Dennis J. Langer