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State v. Ihrabi

Court of Appeals of Ohio, Second District, Montgomery

October 31, 2017

STATE OF OHIO Plaintiff-Appellee
RIBHY IHRABI Defendant-Appellant

         Civil Appeal from Common Pleas Court T.C. NO. 12-CV-2995

          ADAM M. LAUGLE, Atty. Assistant Prosecuting Attorney, Attorney for Plaintiff-Appellee.

          EUGENE ROBINSON, Atty. Attorney for Defendant-Appellant.


          FROELICH, J.

         {¶ 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, 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 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, 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, "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 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-Ohio-3046, ¶ 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." ...

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