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State v. Yakimicki

Court of Appeals of Ohio, Tenth District

June 25, 2013

State of Ohio, Plaintiff-Appellee,
v.
Jeffrey L. Yakimicki, Defendant-Appellant.

APPEAL from the Franklin County Court of Common Pleas. (C.P.C. No. 12CR-03-1250)

Ron O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for appellee.

Yeura R. Venters, Public Defender, and John W. Keeling, for appellant.

DECISION

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 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.

{¶ 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 ...


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