[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.
                                                2


       {¶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
                                                 4


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
                                                  5


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.
                                                6


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
                                                7


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.
                                                8


       {¶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”).
                                                 9


       {¶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,
                                                10


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.
                                                11


       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.
