State v. Yakimicki

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State v. Yakimicki

State: Ohio

Court: Ohio Southern District Court

Docket No: 2013-Ohio-2663

Case Date: 06/25/2013

Plaintiff: State

Defendant: Yakimicki

Preview:[Cite as State v. Yakimicki, 2013-Ohio-2663.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio,                                                                               :
Plaintiff-Appellee,                                                                          :
                                                                                                 No. 12AP-894
v.                                                                                           :   (C.P.C. No. 12CR-03-1250)
Jeffrey L. Yakimicki,                                                                        :   (REGULAR CALENDAR)
Defendant-Appellant.                                                                         :
D    E    C    I    S    I    O    N
Rendered on June 25, 2013
Ron O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for
appellee.
Yeura R. Venters, Public Defender, and John W. Keeling, for
appellant.
APPEAL from the Franklin County Court of Common Pleas.
SADLER, J.
{¶ 1}  Defendant-appellant, Jeffrey L. Yakimicki, appeals from the judgment of
the Franklin County Court of Common Pleas, which convicted him of one count of
aggravated possession of drugs.  For the following reasons, we affirm.
I.  BACKGROUND
{¶ 2}  Appellant was indicted on one count of aggravated possession of drugs, a
second-degree felony, in violation of R.C. 2925.11.  The indictment alleged that appellant
knowingly obtained, possessed or used methylenedioxymethamphetamine, a Schedule I
drug commonly known as Ecstasy, in an amount equal to or greater than five times the

No. 12AP-894                                                                                       2
bulk amount but less than 50 times the bulk amount.   Appellant pleaded not guilty to
the charge and filed a motion to suppress evidence, including the Ecstasy, on grounds
that police officers obtained it from an illegal search of appellant and his car.   The trial
court denied the motion to suppress.   Appellant waived jury, and the case was tried to
the bench.  At trial, the prosecution presented the following evidence.
{¶ 3}  Ohio State University Police Officers Jeremy Allen and Steven Cox were
patrolling a parking lot before a concert with a band named Further, which consists of
members of the Grateful Dead.   While walking through the parking lot, Allen noticed
appellant  sitting  in  the  driver's  seat  of  a  parked  car  holding  a  bag  of  marijuana.
Appellant saw Allen and immediately shoved the bag underneath his seat.
{¶ 4}  Allen approached the driver side of the car, while Cox approached the
passenger side, which was occupied by an individual named Gregory Holtkamp.   Allen
told appellant that he saw him put marijuana under the driver's seat, and appellant
"confirmed that."                                                                                  (Trial Tr. 20.)   Allen instructed appellant to give him the marijuana
and appellant complied.   Allen next saw a pack of rolling papers in the center console of
the car and ordered appellant out of the car.   As appellant exited the car, both Allen and
Cox noticed another bag of marijuana underneath the driver's seat.
{¶ 5}  Allen was preparing to handcuff appellant when appellant put his hand in
his right front pants pocket.   Allen grabbed appellant's hand, at which point appellant
told Allen that he had pills in his pocket and that the pills were breath mints.   At Allen's
instruction, appellant removed from his pocket 16 "crude tablets."   (Trial Tr. 23.)   Allen
handcuffed appellant and read him his Miranda rights.  Appellant told Allen that he was
not sure whether the pills contained "Ecstasy, meth, or spice."   (Trial Tr. 25.)   "Spice" is
a form of  synthetic  marijuana.                                                                   (Trial  Tr.                                                              26.)    Appellant  told Allen that  he met
Holtkamp at the concert and that they did not know each other before then.   Appellant
said that he and Holtkamp were preparing to smoke marijuana when the officers
approached the car.   Appellant also stated that he bought the pills in his pocket while in
the parking lot, but he could not remember from whom.

No. 12AP-894                                                                                     3
{¶ 6}  As Allen was searching the car, he found in the center console another bag
containing 107 pills like the ones in appellant's pocket.   In the back of the car was a
sealing device used to seal plastic bags.    In the front of the car was a duffle bag
containing digital scales, although appellant denied that the bag belonged to him.
{¶ 7}  Appellant  was  taken  to  the  police  department  where  Officer  Dustin
Mowery conducted a field test on one of the pills.   The test showed a presumptive
positive for Ecstasy.    Mowery and Allen informed appellant of the test result, and
appellant, after initially reiterating his claim that the pills were "herbal breath mints"
(Trial Tr. 107), eventually admitted that the pills were "rolls," which he said was the
slang term for Ecstasy.   (Trial Tr. 45.)   Appellant further admitted that all the pills were
his and that he bought them for $800.  Appellant said that he was not selling the pills or
marijuana found in the car.   A subsequent lab test of the pills showed that all 123 were
Ecstasy.
{¶ 8}  Testifying in his own defense, appellant said that his wife, Tina, with
whom he was separated by the time of trial, partied more than he did, and that although
he  was  "relatively  clean,  except  for  the  minor  use  of  marijuana,"  he  "started
[experimenting] with drugs again" in order to "keep [his] marriage together."   (Trial Tr.
128.)  Smoking marijuana helped with neck pain from a work injury, and he preferred to
use marijuana because prescription drugs left him "unable to take care of [his] child"
when his wife was busy.   (Trial Tr. 131.)
{¶ 9}  Appellant additionally testified that he went to the Further concert with
his wife and another couple, Damian and Dawn Surilla.   Appellant noted that he owned
the car they drove to the concert and that he brought $750 or $800 to the concert.
Shortly after arriving at the concert, they smoked marijuana that they had bought in the
parking lot.   People at the concert were selling Ecstasy, but appellant did not want to
buy the drug because he "didn't like the high [he] had gotten from" it and because of the
"potential legal trouble it could cause."   (Trial Tr. 131.)
{¶ 10} Appellant found someone selling "herbal legal substances."   (Trial Tr. 132.)
Appellant said that the vendor indicated that he had "herbal rolls" and "[a]ssured

No. 12AP-894                                                                                     4
[them] that they were not illegal."                                                              (Trial Tr.  132-33.)    Appellant said that he and
Damian  followed  the  man  behind  his  tent  and  bought  $800  worth  of  pills,  with
appellant  contributing                                                                          $125  of  that  amount.    Appellant  and  Damian  returned  to
appellant's car where they split up the pills.   Appellant put his portion of the pills in his
pocket, and he thought Damian put his portion of the pills in his pocket or backpack.
{¶ 11} Appellant testified that, after Allen approached the car and confiscated the
two bags of marijuana, he told the officer that the pills in his pocket were "herbal mints."
(Trial Tr.  139.)    Allen ordered appellant to sit on a nearby curb while he searched
appellant's car.   Appellant's wife and Damian and Dawn Surilla were in the concert, or
were heading toward the concert, at the time.    During the search, Allen found the
remaining pills in the center console, and appellant told Allen that the pills were the
same as those in his pocket.
{¶ 12} At the police station, the officers confronted appellant with the field test
results showing that the pills were Ecstasy.   Appellant told the officers that he had
indeed bought all the pills, but testified that he made the admission only because the
officers threatened to impound his car.   Appellant admitted at trial that, 22 days before
Allen arrested him, he was arrested in Indiana for possession of Ecstasy.  Appellant told
the officers in Indiana that he "went to a concert [the night before] and someone had left
it in [his] car."   (Trial Tr. 158.)
{¶ 13} The trial court found appellant guilty.   In announcing its verdict, the trial
court  noted  that  the  officers  were  more  credible  than  appellant  and  found  that
appellant's claim that he did not know that the pills he purchased contained illegal
substances was "implausible."                                                                    (Trial Tr. 189.)   Moreover, the trial court found that, in
addition  to  actually  possessing  the  pills  found  in  appellant's  pocket,  appellant
constructively possessed the pills found in the center console.   The trial court sentenced
appellant to two years imprisonment.
II.  ASSIGNMENT OF ERROR
{¶ 14} Appellant filed a timely notice of appeal and assigns the following as error:
[I.]  The trial court erred when it entered judgment against
the defendant for possessing more than five times the bulk

No. 12AP-894                                                                                    5
amount,  123  pills,  when  the  evidence  was  insufficient  to
sustain  the  conviction  for  this  amount  since  it  only
established, beyond a reasonable doubt, that he possessed 16
pills.
[II.]  The conviction for aggravated possession of drugs was
against the manifest weight of the evidence when the state
failed to prove beyond a reasonable doubt that the defendant
possessed  more  than  five  times  the  bulk  amount  of  the
contraband.
III.  DISCUSSION
A.  First Assignment of Error
{¶ 15} In his first assignment of error, appellant argues that his conviction for
second-degree felony aggravated possession of drugs is based on insufficient evidence.
We disagree.
{¶ 16} Sufficiency of  the evidence is  a legal  standard that  tests whether  the
evidence is legally adequate to support a verdict.   State v. Thompkins, 78 Ohio St.3d
380, 386 (1997).   Whether the evidence is legally sufficient to support a verdict is a
question of law, not fact.  Id.  In determining whether the evidence is legally sufficient to
support a verdict, " '[t]he relevant inquiry is whether, after viewing the evidence in a
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime proven beyond a reasonable doubt.' "  State v. Robinson,
124 Ohio St.3d 76, 2009-Ohio-5937, ¶ 34, quoting State v. Jenks, 61 Ohio St.3d 259
(1991), paragraph two of the syllabus.   A verdict will not be disturbed unless, after
viewing the evidence in a light most favorable to the prosecution, it is apparent that
reasonable minds could not reach the conclusion reached by the trier of fact.   State v.
Treesh, 90 Ohio St.3d 460, 484 (2001).
{¶ 17} In a sufficiency of the evidence inquiry, appellate courts do not assess
whether the prosecution's evidence is to be believed, but, whether, if believed, does the
evidence support the verdict.   State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126,
¶ 79-80 (concluding that the evaluation of witness credibility is not proper on a review
for the sufficiency of evidence); State v. Bankston, 10th Dist. No. 08AP-668, 2009-

No. 12AP-894                                                                                   6
Ohio-754, ¶ 4, citing State v. Woodward, 10th Dist. No. 03AP-398, 2004-Ohio-4418,
¶ 16 (noting that "in a sufficiency of the evidence review, an appellate court does not
engage in a determination of witness credibility; rather, it essentially assumes the state's
witnesses testified truthfully and determines if that testimony satisfies each element of
the crime").
{¶ 18} Appellant was convicted of one count of aggravated possession of drugs, in
violation of R.C.  2925.11(A), which states that "[n]o person shall knowingly obtain,
possess,  or  use  a  controlled  substance."    Pursuant  to  R.C.                            2925.11(C)(1)(c),  the
conviction is a second-degree felony because he was determined to have possessed an
amount of Ecstasy that "equals or exceeds five times the bulk amount but is less than
fifty times the bulk amount."   Pursuant to R.C. 2925.01(D)(1)(c), the bulk amount for
Ecstasy is ten unit doses, and appellant was convicted of possessing 123 pills.
{¶ 19} On appeal, appellant does not dispute that he possessed the 16 pills found
in his pocket.   He instead contends that sufficient evidence does not establish that he
constructively  possessed  the                                                                 107  pills  found  in  the  center  console  of  his  car.
Consequently, he argues that this court should reduce his conviction to a third-degree
felony, pursuant to R.C. 2925.11(C)(1)(b), which pertains to possession of more than the
bulk amount of Ecstasy but less than five times the bulk amount.
{¶ 20} "Possess" means "having control over a thing or substance, but may not be
inferred  solely  from  mere  access  to  the  thing  or  substance  through  ownership  or
occupation  of  the  premises  upon  which  the  thing  or  substance  is  found."    R.C.
2925.01(K).  Possession of a controlled substance may be actual or constructive.  State v.
Williams,  190  Ohio  App.3d  645,  2010-Ohio-5259,  ¶  12  (10th  Dist.).  "Constructive
possession exists when a person knowingly exercises dominion and control over an
object, even though the object may not be within the person's immediate physical
possession."  Id., citing State v. Hankerson, 70 Ohio St.2d 87 (1982), syllabus.  Although
the mere presence of an individual in the vicinity of illegal drugs is insufficient to
establish constructive possession, if the evidence demonstrates that the individual was
able to exercise dominion or control over the drugs, he can be convicted of possession.

No. 12AP-894                                                                                  7
State v. Miller, 10th Dist. No. 10AP-1017, 2011-Ohio-3600, ¶ 14.   All that is required for
constructive possession is some measure of dominion or control over the drugs in
question, beyond mere access to them.   Id.   In other words, constructive possession can
be inferred from a totality of the circumstances where sufficient evidence, in addition to
proximity, supports dominion or control over the contraband.   State v. Barron, 10th
Dist. No. 09AP-458, 2009-Ohio-5785, ¶ 14.
{¶ 21} Appellant argues that this case is like State v. Chandler, 10th Dist. No.
94APA02-172 (Aug. 9, 1994), in which this court reversed a conviction for attempted
drug abuse because we determined the state had presented insufficient evidence that the
defendant possessed the drugs in question.   We disagree.   In Chandler, "[t]here was no
evidence presented to establish that defendant was anything more than an observer of
the [drug] activity."   The police in that case observed four men, including Chandler,
huddled around a trash can lid that had crack cocaine resting on it.   Police also found a
homemade crack pipe on the ground about two feet from the trash can lid.   One of the
four men (not Chandler) had put his left hand on the ground as soon as he saw police.
All that Chandler did was look at the drugs in question, and, therefore, the record was
devoid of any evidence establishing the defendant's exercise of dominion and control
over the drugs.
{¶ 22} Here, sufficient evidence established that appellant was more than an
observer and did have dominion and control over the Ecstasy found in the center
console of his car such that he had constructive possession over them.   Appellant not
only admitted at trial that he brought a significant amount of money to the concert, but,
also, according to the officers' testimony, appellant admitted to them that he bought the
Ecstasy pills found in his pocket and in his car.
{¶ 23} Furthermore, a factfinder can "conclude that a defendant who exercises
dominion and control over an automobile also exercises dominion and control over
illegal drugs found in the automobile."   State v. Rampey, 5th Dist. No. 2004 CA 00102,
2006-Ohio-1383, ¶ 37, citing State v. Smith, 162 Ohio App.3d 208, 2005-Ohio-3579,
¶ 23-28 (8th Dist.).   Here, the evidence establishes that appellant exercised dominion

No. 12AP-894                                                                                     8
and control over the car containing the Ecstasy given that appellant admitted that the
car belonged to him and police officers found him in the driver's seat.   In addition, this
court has held that the discovery of readily accessible drugs in close proximity to a
person  constitutes  circumstantial  evidence  that  the  person  was  in  constructive
possession of the drugs.   State v. Banks, 182 Ohio App.3d 276, 2009-Ohio-1892, ¶ 12
(10th Dist.).  Here, appellant, and not Damian, was in close proximity of the drugs in the
center  console  of  his  car.    Therefore,  reviewing  the  totality  of  the  circumstances
pursuant to Barron, we find the trial court properly concluded that appellant had
dominion and control over the illegal drugs in the center console of the car.
{¶ 24} For all these reasons, we hold, construing the evidence in a light most
favorable to the state, that appellant was in constructive possession of the 107 Ecstasy
pills found in the center console of his car and, as appellant concedes, the 16 Ecstasy
pills found in his pocket.   Therefore, sufficient evidence supports appellant's conviction
for second-degree felony aggravated possession of drugs.   We overrule appellant's first
assignment of error.
B.  Second Assignment of Error
{¶ 25} In his second assignment of error, appellant argues that his conviction is
against the manifest weight of the evidence.  We disagree.
{¶ 26} In determining whether a verdict is against the manifest weight of the
evidence, the appellate court acts as a "thirteenth juror."  In re C.S., 10th Dist. No. 11AP-
667, 2012-Ohio-2988, ¶ 26.   Under this standard of review, the appellate court weighs
the evidence in order to determine whether the trier of fact "clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed and a
new trial ordered."   Thompkins at 387.   The appellate court must bear in mind the
factfinder's superior, first-hand perspective in judging the demeanor and credibility of
witnesses.   In re C.S. at ¶ 26.   The power to reverse on manifest-weight grounds should
only be used in exceptional circumstances when " 'the evidence weighs heavily against
the conviction.' "   Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175
(1st Dist.1983).

No. 12AP-894                                                                                      9
{¶ 27} A defendant  is  not  entitled to  a reversal  on manifest-weight  grounds
merely because inconsistent evidence was offered at trial.  In re C.S. at ¶ 27.  The trier of
fact is free to believe or disbelieve any or all of the testimony presented.  Id.  The trier of
fact is in the best position to take into account the inconsistencies in the evidence, as
well as the demeanor and manner of the witnesses, and to determine which witnesses
are  more  credible.    Id.    Consequently,  although  an  appellate  court  must  sit  as  a
"thirteenth juror" when considering a manifest weight argument, it must also give great
deference to the trier of fact's determination on the credibility of the witnesses.  Id.
{¶ 28} To support his claim that his conviction is against the manifest weight of
the evidence, appellant  relies on the same arguments he raised to  assert  that  his
conviction is based on insufficient evidence.   We reject those arguments here, for the
same reasons we have already stated.
{¶ 29} Nor do we find that appellant's conviction is against the manifest weight of
the  evidence  because  his  testimony  differed  from  the  prosecution's  witnesses.
" '[W]here a factual issue depends solely upon a determination of which witnesses to
believe, that is the credibility of witnesses, a reviewing court will not, except upon
extremely extraordinary circumstances, reverse a factual finding either as being against
the manifest weight of the evidence or contrary to law.' "  In re L.J., 10th Dist. No. 11AP-
495, 2012-Ohio-1414, ¶ 21, quoting In re Johnson, 10th Dist. No. 04AP-1136, 2005-
Ohio-4389, ¶ 26.
{¶ 30} The trial court, as trier of fact, was in the best position to consider the
evidence from both parties, as well as the demeanor and manner of the witnesses, and to
determine which of those witnesses were more credible.    The trial court accepted
evidence  proving  that  appellant  committed  second-degree  felony  aggravated  drug
possession, and we cannot say that this was one of the rare cases in which the trier of
fact clearly lost its way such that a miscarriage of justice requiring reversal of appellant's
conviction  has  occurred.    Consequently,  appellant's  conviction  is  not  against  the
manifest weight of the evidence, and we overrule appellant's second assignment of error.

No. 12AP-894                                                                    10
IV.  CONCLUSION
{¶ 31} Having overruled appellant's two assignments of error, the judgment of
the Franklin County Court of Common Pleas is hereby affirmed.
Judgment affirmed.
KLATT, P.J., and BROWN, J., concur.

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