We conclude that a reasonable person could have found beyond a reasonable doubt that Jacobs had committed the crime of Aggravated Possession of Drugs.

State v. Jacobs

2021 – Ohio – 1611

Fifth District Appellate Court

Knox County, Ohio

May 7, 2021

On July 23, 2019 at about 7:00 a.m. Mount Vernon Police Officer Nicholas Myrda was dispatched on a report of a silver Subaru parked by the curb on West High Street with a door ajar and a “passed out” male inside. Upon arrival, Officer Myrda discovered Mr. Joshua Jacobs passed out in the passenger seat.  Ms. Makenzie Rousch, Mr. Jacobs’s girlfriend at that time, was the registered owner of the car. Mr. Kenneth Bolden was passed out in the driver’s seat.

Officer Myrda knocked on the door pillar and awoke Mr. Bolden.  He told the officer that the car had run out of gas and had some mechanical difficulties. Mr. Bolden had fallen asleep waiting for assistance to arrive. During his interaction with Mr. Bolden, Officer Myrda observed Mr. Jacobs, who was not yet awake, shift his body, and in doing so, exposed a small bag of what Officer Myrda reasonably believed to be methamphetamine, located on the seat underneath the passenger’s buttocks.

Once backup officers arrived, Mr. Bolden and Mr. Jacobs were removed from the vehicle. Officer Myrda took custody of the baggie from the passenger’s seat. The contents of the bag were later tested and it was determined to be 3.87 grams of methamphetamine. On the floor in front of the passenger’s seat, Officer Myrda

located a drawstring bag, which he searched. When Mr. Jacobs was removed from the vehicle a bag was found at his feet. The bag contained a BB gun that resembled an actual handgun and a small digital scale. During his interaction with Mr. Jacobs, Officer Myrda asked whether he carried the BB gun for protection. Mr. Jacobs responded that, “[H]e didn’t need protection from anybody.”.  Unless one would consider he would want protection from the Fourth Amendment – more on that later.

Officer Myrda then said, “You were carrying it in your bag,” to which Mr. Jacobs responded, “So?” Officer Myrda took that statement as an affirmation of ownership of the bag. Ms. Casey Petrozino testified for the defense at trial. She testified that Bolden was her step-father. Ms. Petrozino further testified that Mr. Jacobs was dating her friend Ms. Kensey. On the evening in question, Mr. Bolden had displayed a baggie of methamphetamine at her home and in her presence. He and Mr. Jacobs then left in Ms. Kensey’s car sometime around 11:00 p.m. Ms. Petrozino did not hear from either person until sometime later. Under cross-examination, Ms. Petrozino admitted that she did not know if possession of that bag had changed in the hours after the men left her house.

The Knox County Grand Jury indicted Mr. Jacobs on November 4, 2019 on one count of Aggravated Possession of Drugs in violation of R.C. 2925.11(A), and Aggravated Trafficking in Drugs, in violation of 2925.03(A)(2), both felonies of the third degree.

Immediately prior to trial, the state dismissed Count Two (Trafficking) and proceeded to trial on Count One (Possession). The jury returned a guilty verdict on the single count, finding that the weight of methamphetamine involved was 3.87 grams, which exceeds the bulk amount. On September 24, 2020, the trial court conducted a sentencing hearing and imposed a sentence of twenty-four months imprisonment.

Mr. Jacobs appealed his conviction under the Fourth Amendment – see he did want protection!  Specifically, Mr. Jacobs appealed his conviction arguing that he did not ‘knowingly’ possess the bag of meth as it was underneath his buttocks in the Subaru.  He further argued that Mr. Bolden actually possessed the meth which is why Mr. Jacobs called Ms. Petrozino as a witness as to who was the owner of the meth since Mr. Bolden brandished the meth earlier in the evening.

The Fifth District Appellate Court evaluated Mr. Jacobs claim that he did not knowingly possess the meth based on previous cases that law enforcement can find instructive in various constructive possession cases.

O.R.C. § 2925.01 (K) ‘Possess’ or ‘possession’ 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.”.

O.R.C. § 2901.21 (D)(1) Provides the requirements for criminal liability and provides that possession is a “voluntary act if the possessor knowingly procured or received the thing possessed, or was aware of the possessor’s control of the thing possessed for sufficient time to have ended possession.”

To establish constructive possession, the evidence must prove that the defendant was able to exercise dominion and control over the contraband. State v. Wolery, 46 Ohio St.2d 316, 332, (1976).

Circumstantial evidence that the defendant was located in very close proximity to the contraband may show constructive possession. State v. Butler, 42 Ohio St.3d 174, 176, (1989).

Based on the foregoing facts and established case law the Fifth District Appellate Court held “We conclude that a reasonable person could have found beyond a reasonable doubt that Jacobs had committed the crime of Aggravated Possession of Drugs.”.  Yes Mr. Jacobs, since the baggie was underneath your buttocks, you did constructively possess the methamphetamine.

Information for this article was obtained from State v. Jacobs, 2021 – Ohio – 1611.

This case was issued by the Fifth District Appellate Court and is binding in the following counties: Ashland, Coshocton, Delaware, Fairfield, Guernsey, Holmes, Knox, Licking, Morgan, Morrow, Muskingum, Perry, Richland, Stark and Tuscarawas.

Lesson Learned:

  1. Possession can be either actual or constructive. Law enforcement must be able to prove a suspect constructively possessed contraband.  In this case Mr. Jacobs makes a feeble argument that because his friend [perhaps Mr. Bolden is now a ‘former friend’??] had actual possession earlier in the evening and therefore the buttocks baggie peek-a-boo did not rise to the level of constructive possession.  However, the established case law clearly demonstrated that Mr. Jacobs constructively possessed the meth, even if Mr. Bolden had previously actually possessed the meth baggie.
  1. Law enforcement must provide clear documentation as to where the contraband was found. The documentation must include the officer’s actions that led up to the discovery.  In this case, Officer Myrda explained the events that led up to the discovery including the slumbering Mr. Jacobs body shift that led to officer’s observation of the meth baggie.
  1. For more on Constructive Possession see – Why was Mickey’s Mouse Felonious?, Why was Ms. Batdorf’s Batman Bag Felonious?, Can a Firearm Left in a Laundry Basket Nestled Under Dirty Clothes by a Teenager be Constructively Possessed by the Dad?.

Does your agency train on Constructive Possession?

Don’t fail your training.

Don’t let your training fail you!

Be safe, smart and Objectively Reasonable!

Robert H. Meader Esq.