[Cite as In re $449 U.S. Currency, 2012-Ohio-1701.] 

 

Civil Appeal From: Hamilton County Court of Common Pleas 

 

Judgment Appealed From Is: Affirmed 

Date of Judgment Entry on Appeal: April 18, 2012 

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Mark G. Waters, 

Assistant Prosecuting Attorney, for Appellant, 

Rodney J. Harris, for Appellee. 

Please note: This case has been removed from the accelerated calendar. 

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

IN RE: $449 U.S. CURRENCY; a 1965 

FORD MUSTANG, VIN 5707T643579 

and 5F0703711212; and FOUR NEW 

TOYO TIRES SEIZED FROM DARWIN 

FRIERSON. 

 

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APPEAL NO. C-110176 

TRIAL NO. M-09-1298 

 

 O P I N I O N.
OHIO FIRST DISTRICT COURT OF APPEALS

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Per Curiam. 

{¶1} This appeal arises in the context of a civil forfeiture action 

instituted by the Hamilton County Prosecutor involving $449 in currency, a 1965 

Ford Mustang,1 and four unattached Toyo tires that the Cincinnati police had seized 

from the residence of Darwin Frierson. At the conclusion of the forfeiture hearing, a 

magistrate ordered forfeiture of the property. 

{¶2} Upon Frierson’s objection, the trial court rejected the magistrate’s 

decision in part and ordered the state to return the Mustang and the tires to 

Frierson. The state appealed. Because the record demonstrates that Frierson had 

standing to challenge the forfeiture and that misconduct by the trial judge at the 

objection hearing was harmless error, we affirm. 

I. Background Facts 

{¶3} Frierson was arrested on December 4, 2009, for drug trafficking. 

The arrest occurred after the police had observed Frierson make two drug sales to an 

informant for $2,800. The police recovered approximately five pounds of marijuana 

from the Oldsmobile that Frierson was operating at the time of his arrest. Later that 

day the police seized from Frierson’s house the property that became the subject of 

these forfeiture proceedings. The police believed that these items were proceeds of 

Frierson’s drug trafficking activity. 

{¶4} During an interview, Frierson admitted to selling marijuana “to 

make ends meet” while unemployed and informed the police that the Mustang had 

been given to him. The police found no drug paraphernalia in the Mustang, nor had 

they seen Frierson operate it during a few weeks of surveillance. Later, Frierson was 

convicted of drug trafficking. 

 1 The record demonstrates that the Mustang’s identification number is 5707T643579. 
OHIO FIRST DISTRICT COURT OF APPEALS

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{¶5} Before the state filed this civil forfeiture action under R.C. 2981.05, 

Sharon Dillman, the asset forfeiture unit coordinator for the Cincinnati Police 

Department, had attempted to determine persons with an interest in the Mustang. 

Dillman’s research showed that as of December 4, 2009, the vehicle was titled in 

Dale Vollmer’s name, but that a temporary tag had been issued to Frierson. 

{¶6} When Dillman contacted Frierson, he told her that Vollmer had 

recently given the Mustang to Frierson’s father, Lenny, and that his father had then 

given it to him. Dillman contacted Vollmer, who confirmed that he had recently 

given the Mustang to Lenny, a friend and former business colleague. During the 

same conversation, Dillman advised Vollmer that the Mustang remained titled in his 

name. 

{¶7} Although the state had identified both Frierson and Vollmer as 

persons with interest in the property in the complaint for forfeiture, only Frierson 

answered the forfeiture complaint and requested the return of the property. 

{¶8} At the forfeiture hearing, Vollmer testified that after unsuccessfully 

trying to sell the Mustang, he gifted it to Lenny in mid-November with the 

understanding that Lenny wanted to give it to Frierson. Further, he stated that his 

first attempt to transfer title was unsuccessful, but that he successfully transferred 

the title out of his name after the property had been seized. 

{¶9} Frierson and his father Lenny testified that Vollmer gave the 

Mustang to Lenny, that Lenny gave it to Frierson without any consideration or 

expectation of future consideration, and that Lenny eventually had the Mustang 

titled directly in Frierson’s name. Neither the state nor Frierson, however, presented 

documentary evidence of the Mustang’s certificate of title information after 

Dillman’s initial search. 
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{¶10} With respect to the other seized property, Frierson claimed that the 

currency recovered was a part of his savings from prior employment and that he 

purchased the Toyo tires that had been found in his garage “awhile ago.” 

{¶11} The remainder of the testimony at the hearing focused on 

Frierson’s unemployment during the several months before his arrest, after years of 

employment with the same company, and Frierson’s monthly expenses and revenue 

sources, including unemployment compensation and contributions from family 

members, during the months of unemployment. The record contains no evidence 

that Frierson, who possessed the Mustang for a short time before the seizure, 

expended any money for the upkeep of the Mustang. 

{¶12} The magistrate ordered all the property forfeited after finding that 

Frierson’s expenses had exceeded his legitimate income. Additionally, with respect 

to the Mustang, the court found that Vollman’s gift had not been completed because 

the certificate of title had not been successfully transferred out of Vollman’s name 

and that Frierson “was never in the chain of title for the Mustang, never gave any 

consideration for it, and did not have sufficient income to afford it.” Frierson filed 

objections contesting the forfeiture of the Mustang and the tires, claiming that the 

state failed to prove the requisite nexus between the property and the offense. 

{¶13} At a hearing on the objections, the state argued for the first time 

that Frierson lacked standing to contest the forfeiture of the Mustang. The trial 

judge continued the case for the stated reasons of reviewing the transcript from the 

magistrate’s hearing and retrieving the current “VIN registration” for the Mustang. 

{¶14} When the objections hearing resumed, the trial judge adopted the 

state’s position that in Ohio ownership of a vehicle is determined by the certificate of 

title, that “forfeiture pertains to title,” and that, therefore, a person outside of the 

chain of title lacks standing to contest a forfeiture. Frierson argued otherwise. 
OHIO FIRST DISTRICT COURT OF APPEALS

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{¶15} The trial judge then marked as her own exhibit what she described 

as the title information for the Mustang that she had received from the Hamilton 

County Clerk’s Office. She also referenced a conversation that she had with a clerk’s 

office employee concerning the title. The judge explained on the record that the 

exhibit demonstrated that the title had been transferred from Vollmer to Frierson 

after the seizure.2 Neither the state nor Freirson took exception to the trial court’s 

conduct. 

{¶16} After an “independent review of the evidence” presented, the trial 

judge sustained Frierson’s objections, rejected the magistrate’s decision with respect 

to the Mustang and tires, and ordered that the state return the Mustang and tires to 

Frierson because the state failed to establish any nexus between that seized property 

and Frierson’s drug trafficking. This appeal followed. 

{¶17} In the first assignment of error, the state challenges the trial 

court’s decision to return the Mustang and the tires to Frierson on the ground that 

Frierson lacked standing to contest their forfeiture. In the second assignment of 

error, the state argues that the trial judge exceeded the scope of the “independent 

review” permitted under Civ.R. 53. 

II. Standing 

{¶18} The civil forfeiture proceedings in this case are governed by R.C. 

Chapter 2981, effective July 1, 2007. See 2006 Sub.H.B. No. 241. Generally, the new 

chapter unified and expanded former specific forfeiture provisions. Katz, Martin, 

Lipton and Crocker, Baldwin’s Ohio Prac. Crim. L., Section 129:1 (2011). The 

legislature sought “to balance punitive and remedial policies with the imperative of 

limiting the state’s exercise of police power in derogation of private property rights.” 

Id. at Section 129:2. See also R.C. 2981.01(A)(1)-(4). 

 2 The actual exhibit is not a part of our record on appeal. 
OHIO FIRST DISTRICT COURT OF APPEALS

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{¶19} The new chapter authorizes the state to obtain a forfeiture order in 

a criminal proceeding, described in R.C. 2981.04, or in a separate civil forfeiture 

proceeding, described in R.C. 2981.05. To that end, R.C. 2981.05(A) allows a 

prosecutor to file 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, 

as defined in R.C. 2981.02. The state or political subdivision acquires provisional 

title to property subject to forfeiture upon the commission of the offense. R.C. 

2981.03. This case involves property alleged to be proceeds—property “derived from 

or acquired through the commission of an offense.” R.C. 2981.02(A)(2). 

{¶20} 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 made, when required, that forfeiture is not 

disproportionate to the severity of the offense. Id.

{¶21} The forfeiture statutes provide procedures for “a person with an 

interest in the property subject to forfeiture” to petition for release of the property at 

various times during the civil forfeiture proceedings. See R.C. 2981.05(C) and R.C. 

2981.03. And the prosecutor is required to attempt to identify “any person with an 

interest in the property subject to forfeiture” before or upon filing the civil action and 

to serve such individuals with notice of the action and the complaint. R.C. 

2981.05(B). The prosecutor must also publish a notice of the action as provided by 

statute. R.C. 2981.05(B). 

{¶22} According to the state, Frierson lacked standing to contest the 

forfeiture of the Mustang because it was titled in Vollmer’s name at the time of the 
OHIO FIRST DISTRICT COURT OF APPEALS

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seizure. Ohio’s Certificate of Motor Vehicle Title Law provides in relevant part that 

“[n]o person acquiring a motor vehicle from its owner * * * shall acquire any right, 

title, claim, or interest in or to the motor vehicle until there is issued to the person a 

certificate of title to the motor vehicle * * *.” R.C. 4505.04(A). 

{¶23} As recognized by the Ohio Supreme Court, the main goal of Ohio’s 

Certificate of Motor Vehicle Title Law is to protect innocent purchasers of motor 

vehicles. Saturn of Kings Automall, Inc. v. Mike Albert Leasing, Inc., 92 Ohio St.3d 

513, 516, 751 N.E.2d 1019 (2001). See also State ex rel. City Loan & Sav. Co. v. 

Taggert, 134 Ohio St. 374, 375, 17 N.E.2d 758 (1938) (discussing predecessor to 

current statute that contained similar language.) To that end, a change in ownership 

occurs when a certificate of title is issued in the name of the purchaser. 

{¶24} “Standing” involves “[a] party’s right to make a legal claim or seek 

judicial enforcement of a duty or right.” Black’s Law Dictionary 1442 (8thEd.2004). 

The party must have “some real interest in the subject matter of the action.” State ex 

rel. Dallman v. Court of Common Pleas, 35 Ohio St.2d 176, 298 N.E.2d 515 (1973), 

syllabus, cited in Wells Fargo Bank, N.A. v. Byrd, 178 Ohio App.3d 285, 2008-Ohio4603, 897 N.E.2d 722, ¶ 7 (1st Dist.). 

{¶25} The state cites two federal cases applying federal forfeiture statutes 

to demonstrate that Frierson’s possession of the Mustang had not provided him 

standing. The courts in those cases, however, held that the claimants’ possessory 

interests had confered Article III standing, but that the claimants had failed to 

establish their claims as “innocent owners” due to the application of the relevant 

state certificate of title laws. See United States v. One Lincoln Navigator 1998, 328 

F.3d 1011 (8th Cir.2003) (applying Arkansas law) and United States v. 1977 Porsche 

Carrera 911, 946 F.2d 30 (5th Cir.1991) (applying Texas law). 

{¶26} Ohio courts have held that Ohio’s Certificate of Motor Vehicle Title 

Law has limited application beyond cases where the parties are rival claimants to 
OHIO FIRST DISTRICT COURT OF APPEALS

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title. See Saturn of Kings Automall, 92 Ohio St.3d at 517-519, 751 N.E.2d 1019; 

Smith v. Nationwide Ins. Co., 37 Ohio St.3d 150, 153, 524 N.E.2d 507 (1988). 

{¶27} Specifically, the Ohio Supreme court has rejected the state’s 

position that in a forfeiture action there can be no interest in a vehicle except as 

evidenced by the certificate of title. State v. Shimits, 10 Ohio St.3d 83, 85, 461 

N.E.2d 1278 (1984). See also State v. Wegmiller, 88 Ohio App.3d 68, 623 N.E.2d 131 

(8th Dist.1993) (holding that in a proceeding brought under a former forfeiture 

statute, the state can demonstrate the existence of an equitable interest in a vehicle 

that is then subject to forfeiture notwithstanding the Certificate of Motor Vehicle 

Title Law); In re: 1990 LEXUS LUS VIN JT8UF11E7L001377 SEIZED FROM 

DARRICK BOSTON, 1st Dist. No. C-990403, 2000 Ohio App. LEXIS 1344, 41 U.C.C. 

Rep. Serv. 2d (Callaghan) 337 (Mar. 31, 2000) (holding that perfection by 

possession under R.C. 1309.24 was sufficient to protect pawnshop’s security interest 

against RENU’s forfeiture of a vehicle, despite the language of the Certificate of 

Motor Vehicle Title Law.) 

{¶28} Further, forfeitures are not favored in law or equity, and the 

statutory forfeiture provisions must be strictly construed against such a result. See 

Dept. of Liquor Control v. Sons of Italy Lodge 0917, 65 Ohio St.3d 532, 534, 605 

N.E.2d 368 (1992); City of Dayton Police Dept. v. Byrd, 189 Ohio App.3d 461, 2010-

Ohio-4529, 938 N.E.2d 1110, ¶ 28 (2nd Dist.). 

{¶29} This case simply involves whether Frierson’s interest in the 

Mustang had been acquired by proceeds. It does not involve competing claims of title 

and ownership. As soon as the state seized the Mustang as proceeds from Frierson’s 

criminal behavior, the state took the position that Frierson had an interest in the 

Mustang, even though the interest fell short of legal ownership of the vehicle. 

{¶30} We reject the state’s position that Frierson lacked standing to 

challenge the forfeiture of the Mustang because he lacked legal ownership evidenced 
OHIO FIRST DISTRICT COURT OF APPEALS

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by a certificate of title at the time of the seizure. Under these circumstances, 

Frierson had standing to contest the forfeiture and to request the return of the 

Mustang that he lawfully possessed at the time of the seizure and in which he had at 

least an equitable interest. 

{¶31} Finally, the state failed to present any argument to support its 

claim that Frierson lacked standing to challenge the forfeiture of the tires, which 

were not attached to any vehicle at the time of seizure. Accordingly, the first 

assignment of error is meritless and we overrule it. 

III. Judicial Misconduct 

{¶32} In its second assignment error, the state argues that the trial judge 

exceeded the bounds of the independent review of the magistrate’s decision when 

she procured her own evidence and consulted an unsworn witness, whom the state 

could not cross-examine. We agree. 

{¶33} In this case, the matter was referred to a magistrate for a forfeiture 

hearing, implicating Civ.R. 53. Frierson timely filed objections. When timely 

objections to a magistrate’s decision have been filed, the trial court, in accordance 

with Civ.R. 53(D)(4)(d), “shall undertake an independent review” of the matters 

objected to in ruling on the objections. The independent review allows the trial court 

to confirm that the magistrate has properly determined the factual issues presented 

at the hearing and has applied the law correctly. Also, the trial court may “hear 

additional evidence,” but “may refuse to do so unless the objecting party 

demonstrates that [it] could not, with reasonable diligence, have produced that 

evidence for consideration by the magistrate.” Id. If the court hears additional 

evidence, the court may call and interrogate witnesses in an impartial manner, and 

all parties are entitled to cross-examine those witnesses. See Evid.R. 614(A) and (B). 

{¶34} The trial court clearly exceeded its authority under Civ.R. 53 and 

the rules of evidence when it contacted the clerk of courts and secured the updated 
OHIO FIRST DISTRICT COURT OF APPEALS

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title and registration information for the Mustang. The court compounded this error 

by relying on this information in determining that Frierson had standing, without 

calling any witnesses into court and affording the parties the opportunity for crossexamination. But the trial court’s error did not affect the substantial rights of the 

state. See Civ.R. 61. 

{¶35} Rather, as we have already held, after our de novo review of R.C. 

2981.05 and Ohio’s Certificate of Motor Vehicle Title Law, Frierson’s lack of legal 

ownership of the Mustang as evidenced by title at the time of the seizure did not 

deprive him of standing to challenge the forfeiture. Further, the state does not 

challenge the trial court’s (and the magistrate’s) finding that Frierson had not given 

any consideration for the Mustang—a fact that in this case leads to the legal 

conclusion that the Mustang was not subject to forfeiture as proceeds of drug 

trafficking. Ultimately, there was no showing or finding that the seized Mustang had 

any nexus with criminal activity. Thus, Frierson was entitled to the return of the 

Mustang that he had lawfully possessed before the state seized it. 

{¶36} Therefore, although the trial court’s misconduct was error, we hold 

that the error was harmless, and we overrule the second assignment of error. 

Accordingly, we affirm the trial court’s decision denying the state’s complaint for a 

civil forfeiture order pertaining to the Mustang and the tires and ordering a release of 

this property to Frierson. 

{¶37} The judgment of the trial court is affirmed. 

Judgment affirmed. 

DINKELACKER, P.J., HENDON and CUNNINGHAM, JJ. 

Please note: 

 The court has recorded its own entry on the date of the release of this decision.