State v. Yoakem , 2016 Ohio 745 ( 2016 )

[Cite as State v. Yoakem, 2016-Ohio-745.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE )
STATE OF OHIO C.A. No. 14AP0016
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
DAVID L. YOAKEM COURT OF COMMON PLEAS
COUNTY OF WAYNE, OHIO
Appellant CASE No. 13-CR-0270
DECISION AND JOURNAL ENTRY
Dated: February 29, 2016
CARR, Presiding Judge.
{¶1} Appellant David Yoakem appeals his conviction in the Wayne County Court of
Common Pleas. This Court affirms.
I.
{¶2} Yoakem was indicted in case number 13-CR-0270 on multiple drug-related
offenses, including aggravated possession of drugs (methamphetamine), illegal manufacture of
drugs (methamphetamine), illegal assembly or possession of chemicals for the manufacture of
drugs (methamphetamine), possession of heroin, possessing criminal tools (to commit
manufacturing of drugs), illegal use or possession of drug paraphernalia, and possession of drugs
(clonazepam). Numerous other drug-related offenses remained pending for Yoakem in case
number 13-CR-0051, not having previously been disposed due to his absence from the
jurisdiction. In addition, Yoakem was later charged with seven drug-related counts in case
number 14-CR-0024.
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{¶3} Case number 13-CR-0270 was tried to a jury after the State dismissed the count of
possession of heroin. The jury found Yoakem guilty of aggravated possession of
methamphetamine exceeding 150 grams, possessing criminal tools intended for use in the
manufacturing of methamphetamine, and illegal use or possession of drug paraphernalia. The
jury found Yoakem not guilty of the remaining three charges. The matter proceeded to a joint
change of plea hearing in case number 14-CR-0024, and a sentencing hearing in both case
number 13-CR-0270 and the 2014 case. Yoakem pleaded guilty in case number 14-CR-0024 to
one count of illegal assembly/possession of chemicals and one count of possession of heroin. At
sentencing for the 2013 charges, the trial court merged the paraphernalia count into the criminal
tools count before imposing a 7-year prison term for aggravated possession and a 12-month term
for criminal tools, with such terms be served concurrently. Yoakem appealed and raises two
assignments of error for review.
II.
ASSIGNMENT OF ERROR I
[YOAKEM’S] CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT
OF THE EVIDENCE AND NOT SUPPORTED BY SUFFICIENT EVIDENCE.
{¶4} Yoakem argues that his convictions are not supported by sufficient evidence and
are against the manifest weight of the evidence. This Court disagrees.
{¶5} Yoakem was convicted of aggravated possession of methamphetamine, a felony
of the first degree, in violation of R.C. 2925.11(A) which states: “No person shall knowingly
obtain, possess, or use a controlled substance or a controlled substance analog.”
A person acts knowingly, regardless of purpose, when the person is aware that the
person’s conduct will probably cause a certain result or will probably be of a
certain nature. A person has knowledge of circumstances when the person is
aware that such circumstances probably exist. When knowledge of the existence
of a particular fact is an element of an offense, such knowledge is established if a
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person subjectively believes that there is a high probability of its existence and
fails to make inquiry or acts with a conscious purpose to avoid learning the fact.
R.C. 2901.22(B).
{¶6} “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
drug includes possessing individually or jointly with another person. Joint possession exists
when two or more persons together have the ability to control an object, exclusive of others.”
State v. Figueroa, 9th Dist. Summit No. 22208, 2005-Ohio-1132, ¶ 8, quoting State v. Alicea, 8th
Dist. Cuyahoga No. 78940, 2001 WL 1243944 (Oct. 18, 2001).
{¶7} R.C. 3719.01(C) states that “[c]ontrolled substance means a drug, compound,
mixture, preparation, or substance included in schedule I, II, III, IV or V.” The controlled
substance in this case was methamphetamine. Methamphetamine is classified as a Schedule II
controlled substance and a stimulant under R.C. 3719.41, Schedule II (C)(2). R.C.
2925.11(C)(1)(d) states that “[i]f the amount of the drug involved equals or exceeds fifty times
the bulk amount but is less than one hundred times the bulk amount, aggravated possession of
drugs is a felony of the first degree[.]” R.C. 2925.01(D)(1)(g) defines “bulk amount” as “[a]n
amount equal to or exceeding three grams of a compound, mixture, preparation, or substance that
is or contains any amount of a schedule II stimulant * * * that is not in a final dosage form
manufactured by a person authorized by the Federal Food, Drug, and Cosmetic Act and the
federal drug abuse control laws.”
{¶8} Yoakem was also convicted of possessing criminal tools in violation of R.C.
2923.24(A) which states that “[n]o person shall possess or have under the person’s control any
substance, device, instrument, or article, with purpose to use it criminally.” “A person acts
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purposely when it is the person’s specific intention to cause a certain result, or, when the gist of
the offense is a prohibition against conduct of a certain nature, regardless of what the offender
intends to accomplish thereby, it is the offender’s specific intention to engage in conduct of that
nature.” R.C. 2901.22(A). Pursuant to R.C. 2923.24(B):
Each of the following constitutes prima-facie evidence of criminal purpose:
***
(2) Possession or control of any substance, device, instrument, or article designed
or specially adapted for criminal use;
(3) Possession or control of any substance, device, instrument, or article
commonly used for criminal purposes, under circumstances indicating the item is
intended for criminal use.
{¶9} In addition, Yoakem was convicted of illegal use or possession of drug
paraphernalia in violation of R.C. 2925.14(C)(1) which states that “* * * no person shall
knowingly use, or possess with purpose to use, drug paraphernalia.” R.C. 2925.14(A) contains a
non-exhaustive list of items which may constitute “drug paraphernalia,” but is generally defined
as “any equipment, product, or material of any kind that is used by the offender, intended by the
offender for use, or designed for use, in propagating, cultivating, growing, harvesting,
manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing,
packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or
otherwise introducing into the human body, a controlled substance in violation of this chapter.”
Sufficiency of the evidence
{¶10} “Raising the question of whether the evidence is legally sufficient to support the
jury verdict as a matter of law invokes a due process concern.” State v. Diar, 120 Ohio St.3d
460, 2008-Ohio-6266, ¶ 113, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). In
reviewing a challenge to the sufficiency of the evidence, “the relevant inquiry is whether, after
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viewing the evidence in the 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.” Diar
at ¶ 113, quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus,
following Jackson v. Virginia, 443 U.S. 307 (1979).
{¶11} Reviewing the evidence in a light most favorable to the State, this Court
concludes that any rational trier of fact could have found that the essential elements of the
charges of aggravated possession of methamphetamine, possessing criminal tools, and illegal use
or possession of drug paraphernalia were proved beyond a reasonable doubt. See Jenks, 61 Ohio
St.3d 259, at paragraph two of the syllabus.
{¶12} There was evidence that Yoakem was living at the camper on Fox Lake Road on
August 24, 2013. He was found hiding inside the camper when law enforcement attempted to
serve him with an outstanding warrant. Two witnesses testified that Yoakem supplied them with
methamphetamine that he made in the camper. The State presented evidence that numerous
substances, instruments, equipment, and other items used to manufacture methamphetamine
were found in Yoakem’s camper the day that a confidential informant reported that Yoakem
would be cooking methamphetamine there. Over 220 grams of a mixture, preparation, or other
substance (more than the 150 grams necessary to constitute 50 times bulk amount) containing
methamphetamine was found in a jar inside the camper. Accordingly, the State presented
sufficient evidence to establish all three of the crimes charged.
Manifest weight
In determining whether a criminal conviction is against the manifest weight of the
evidence, an appellate court must review the entire record, weigh the evidence
and all reasonable inferences, consider the credibility of witnesses and determine
whether, in resolving conflicts in the evidence, 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.
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State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986).
Weight of the evidence concerns the tendency of a greater amount of credible
evidence to support one side of the issue more than the other. Thompkins, 78
Ohio St.3d at 387. Further when reversing a conviction on the basis that it was
against the manifest weight of the evidence, an appellate court sits as a “thirteenth
juror,” and disagrees with the factfinder’s resolution of the conflicting testimony.
Id.
State v. Tucker, 9th Dist. Medina No. 06CA0035-M, 2006-Ohio-6914, ¶ 5.
{¶13} This discretionary power should be exercised only in exceptional cases where the
evidence presented weighs heavily in favor of the defendant and against conviction. Thompkins,
78 Ohio St.3d at 387.
{¶14} Yoakem presented the testimony of eight witnesses in addition to testifying in his
own defense.
{¶15} This Court will not overturn the trial court’s verdict on a manifest weight of the
evidence challenge only because the trier of fact chose to believe certain witness’ testimony over
the testimony of others. State v. Crowe, 9th Dist. Medina No. 04CA0098-M, 2005-Ohio-4082, ¶
22.
{¶16} A thorough review of the record indicates that this is not the exceptional case
where the evidence weighs heavily in favor of Yoakem. The weight of the evidence supports the
conclusion that Yoakem possessed methamphetamine in an amount exceeding 50 times the bulk
amount. Although he claimed to have moved out of the camper prior to August 24, 2013, the
evidence indicated that he still used the camper, maintained his belongings there, and returned
there frequently even if he may have been sleeping on a friend’s couch for a few weeks. He
testified that he refused to allow a friend to stay at the camper in his absence, and there was no
evidence that anyone else asked to stay there. Although Yoakem claimed that someone had
broken into the camper, he did not report the incident to the police, but rather brought his
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girlfriend, her tiny dog, and some personal items with him to investigate the situation. After law
enforcement arrived at the camper to serve outstanding warrants, Yoakem still did not attempt to
report a break in. Neither Deputy Brumme nor Agent Hall could remember any broken locks on
the camper doors. Accordingly, it was reasonable for the trier of fact to believe that Yoakem still
possessed and exerted control over everything found in the camper.
{¶17} Included among the items found in and around the camper were numerous
substances and devices (such as chemicals, tubing, and blister packs that had held
pseudoephedrine) that could be used to manufacture and supply methamphetamine. Several
witnesses testified that Yoakem made and supplied them with the drug. In addition, the evidence
indicated that Yoakem possessed equipment and materials (such as chemicals, bottles, tubing,
and a scale) he intended to use or were designed for use in manufacturing or preparing
methamphetamine for sale or barter. The mason jar found among Yoakem’s belongings
contained over 220 grams (over 50 times the bulk amount) of liquid mixture containing
methamphetamine. Accordingly, Yoakem’s convictions for aggravated possession of
methamphetamine, possessing criminal tools, and illegal use or possession of drug paraphernalia
are not against the manifest weight of the evidence. The first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED BY TAKING INTO CONSIDERATION
ADDITIONAL CHARGES NOT FOUND BY THE JURY WHEN
SENTENCING [YOAKEM].
{¶18} Yoakem argues that the trial court erred by sentencing him based on its belief that
he was guilty of manufacturing methamphetamine even though the jury found him not guilty of
that charge. This Court disagrees.
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{¶19} Immediately prior to sentencing on the three charges on which the jury found
Yoakem guilty, Yoakem pleaded guilty to two other charges in another case in exchange for the
State dismissing the remaining five charges. Specifically, Yoakem pleaded guilty to possession
of heroin and illegal assembly and possession of chemicals to manufacture methamphetamine.
The trial court then sentenced Yoakem on all five charges. Yoakem argues that the trial court
erred by indicating its belief that he was guilty of manufacturing methamphetamine when
determining his sentence.
{¶20} This Court recently reiterated the well-established rule that “a sentencing judge
may take into account facts introduced at trial relating to other charges, even ones of which the
defendant has been acquitted[,]” as long as facts such as not guilty verdicts do not form the sole
basis for the sentence. State v. Mavrakis, 9th Dist. Summit No. 27457, 2015-Ohio-4902, ¶ 42,
quoting State v. Wiles, 59 Ohio St.3d 71, 78 (1991); see also State v. D’Amico, 9th Dist. Summit
No. 27258, 2015-Ohio-278, ¶ 6. Moreover, where a defendant has pleaded guilty to a lesser
crime than originally charged as part of a plea bargain, “the trial court is permitted to consider
the original charge when sentencing.” State v. Dari, 8th Dist. Cuyahoga No. 99367, 2013-Ohio-
4189, ¶ 15. Accordingly, the sentencing court is free to consider the underlying facts when
considering what sentence would be appropriate where the defendant has entered a plea to a
lesser charge. Dari at ¶ 17; see also State v. Bowser, 186 Ohio App.3d 162, 2010-Ohio-951, ¶
17 (2d Dist.) (court may consider underlying facts in imposing sentence where defendant pleaded
guilty to unindicted charge as part of plea bargain), citing State v. Mayor, 7th Dist. Mahoning
No. 07 MA 177, 2008-Ohio-7011, ¶ 17 (“the sentencing court can consider the circumstances of
the offense for which the defendant was indicted, even if he negotiated a plea at odds with the
indicted elements”).
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{¶21} In considering the appropriate sentence to impose on the five charges, the trial
court informed Yoakem:
I’ve also considered to a lesser extent, but I think the court has the right to take it
into account, you testified on Friday in the trial that you’ve never made
meth[amphetamine] in your life and the court believes that’s a whopper of the
first degree, that that’s not true, it’s a lie, * * *.
{¶22} The trial court did not rely solely on its belief that Yoakem had previously
engaged in the manufacture of methamphetamine in imposing sentence, however. It expressly
stated that it was considering Yoakem’s criminal history and age, especially as those matters
provided insight into whether Yoakem might “repeat any of this conduct in the future[.]” The
court noted the defendant’s ongoing involvement in “committing serious criminal offenses[,]”
the fact that he committed the most recent drug related crimes while out on bond for other drug
related crimes, Yoakem’s lack of remorse, and the extreme “danger of the substances” involved
to the community. Accordingly, Yoakem’s not guilty verdict on the charge of manufacture of
methamphetamine did not constitute the trial court’s sole basis for the sentence it imposed.
{¶23} In addition, prior to accepting Yoakem’s guilty plea on the two charges including
illegal assembly and possession of chemicals for the manufacture of methamphetamine, the State
recited the underlying facts. Specifically, police were called to a scene where Yoakem, Taryn
Chojnowski, and another person were observed to have stolen items from a convenience store.
After apprehending the trio, law enforcement found chemicals and other items (lye, coffee filters,
pseudoephedrine, and lithium batteries) used to manufacture methamphetamine in Yoakem’s car.
Moreover, the trial court allowed both the State and defense counsel to make additional
statements for the court’s consideration prior to sentencing.
{¶24} “The evidence the court may consider is not confined to the evidence that strictly
relates to the conviction offense because the court is no longer concerned, like it was during trial,
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with the narrow issue of guilt.” Bowser at ¶ 14. In this case, in determining the appropriate
sentence to impose relevant to multiple drug related charges, four of which involved either (1)
the assembly or possession of chemicals, equipment, and other items used to manufacture
methamphetamine, or (2) the possession of methamphetamine in a form midway through the
manufacturing process, the court properly considered Yoakem’s involvement in manufacturing
the drug notwithstanding his not guilty verdict. Multiple witnesses at trial testified that Yoakem
made and supplied them or others with methamphetamine. The items he both pleaded guilty to
assembling and possessing and was found guilty of possessing were specific to use in
manufacturing methamphetamine. The sentencing court’s statements demonstrate merely that it
was considering the serious nature of the offenses, the danger associated with his conduct, and
his lack of remorse as evidenced by his ongoing and repeated similar behavior. Accordingly, the
sentencing court committed no impropriety. See Dari at ¶ 18. Yoakem’s second assignment of
error is overruled.
III.
{¶25} Yoakem’s assignments of error are overruled. The judgment of the Wayne
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
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Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
WHITMORE, J.
MOORE, J.
CONCUR.
APPEARANCES:
CHRISTINA I. REIHELD, Attorney at Law, for Appellant.
DANIEL R. LUTZ, Prosecuting Attorney, and NATHAN R. SHAKER, Assistant Prosecuting
Attorney for Appellee.