If you find that the State has failed to prove by a preponderance of the evidence that the $ 5,746.00 in United States currency was used or intended to be used in any manner to commit or to facilitate the commission of the Possession of Marijuana, you must find that the $ 5,746.00 in United States currency is not subject to forfeiture. When determining whether [an alleged instrumentality] [this currency] was used in or was intended to be used in the commission or facilitation of an offense consider:
(1) Whether the offense could not have been committed or attempted but for the presence of the [instrumentality] [this currency];
(2) Whether the primary purpose in using the [instrumentality] [currency] was to commit or attempt to commit the offense;
(3) The extent to which the [instrumentality] [currency] furthered the commission of, or an attempt to commit, the offense.
Source: Adapted from State v. Johnson, 2010 Ohio 1970, P47-52 (Ohio Ct. App., Trumbull County, No. 2009‑T‑0042, Apr. 30, 2010) [“The trial court should have instructed the jury[on] these [] factors with respect to the issue of forfeiture”].
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