[Cite as State v. Davis, 2012-Ohio-2642.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-110620
TRIAL NO. 11CRB-16060
Plaintiff-Appellee :
vs. : O P I N I O N.
JUSTIN DAVIS, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Reversed and Appellant Discharged
Date of Judgment Entry on Appeal: June 15, 2012
John P. Curp, City Solicitor, Charlie Rubenstein, City Prosecutor, and Melanie J.
Reising, Assistant City Prosecutor, for Plaintiff-Appellee,
Robert R. Hastings, Jr., for Defendant-Appellant.
Please note: This case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
Per Curiam.
{¶1} Following a bench trial, defendant-appellant Justin Davis was convicted
of possessing a drug abuse instrument in violation of R.C. 2925.12(A). Because his
conviction was not supported by sufficient evidence, we must reverse.
Factual Background
{¶2} At trial, Cincinnati Police Officer Jason Rice testified that on June 1,
2011, he and his partner were investigating a drug complaint near the corner of
Montgomery Road and Woodmont Avenue in Cincinnati, Ohio. They observed a
vehicle pull alongside another vehicle in a parking lot, and shortly thereafter, the
vehicles left together. The officers found the two vehicles on nearby Arrow Avenue,
parked side-by-side in a manner consistent with a drug transaction.
{¶3} As Rice and his partner approached the vehicles, one vehicle fled but the
other remained. The officers ordered the occupants in the remaining vehicle to put
their hands on the dashboard and asked whether they had anything on them. Seated in
the front passenger seat, Davis replied that he had a needle. Rice instructed Davis to
exit from the vehicle and advised him of his Miranda rights. Davis then told the
officers that the needle was in his pocket, and from there Rice recovered a hypodermic
needle and syringe. Davis admitted to Rice that he occasionally came to Ohio to buy
heroin, and that he had intended to buy heroin from an individual in the vehicle that
had fled. Police later stopped that vehicle and found heroin inside. No heroin was
recovered from Davis, and no heroin was found in the hypodermic needle or syringe.
{¶4} Based on this evidence, the trial court found Davis guilty of possessing a
drug abuse instrument in violation of R.C. 2925.12(A), fined him $200 plus court costs,
and suspended his driver’s license for six months. This appeal followed.
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OHIO FIRST DISTRICT COURT OF APPEALS
Analysis
{¶5} In his single assignment of error, Davis argues that his conviction was
both not supported by sufficient evidence and contrary to the manifest weight of the
evidence. In light of the particular wording of R.C. 2925.12(A), his assertion has merit.
{¶6} The Due Process Clause of the Fourteenth Amendment to the United
States Constitution “protects the accused against conviction except upon proof beyond
a reasonable doubt of every fact necessary to constitute the crime with which he is
charged.” In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). In
deciding whether the evidence adduced at trial is legally sufficient to support a finding
of guilt, “[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. Jenks, 61 Ohio St.3d
259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, following Jackson v.
Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). A reviewing court must
reverse any conviction not supported by sufficient evidence. E.g., State v. Fyffe, 67
Ohio App.3d 608, 615, 588 N.E.2d 137 (10th Dist.1990).
{¶7} Davis was convicted of possessing a drug abuse instrument in violation
of R.C. 2925.12(A), which provides
No person shall knowingly make, obtain, possess, or use
any instrument, article, or thing the customary and
primary purpose of which is for the administration or
use of a dangerous drug, other than marihuana, when
the instrument involved is a hypodermic or syringe,
whether or not of crude or extemporized manufacture or
assembly, and the instrument, article, or thing involved
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OHIO FIRST DISTRICT COURT OF APPEALS
has been used by the offender to unlawfully administer
or use a dangerous drug, other than marihuana, or to
prepare a dangerous drug, other than marihuana, for
unlawful administration or use.
{¶8} Thus, for criminal liability to attach under this statute, the instrument
in question must have been used by the offender either (1) to unlawfully administer or
use a dangerous drug or (2) to prepare a dangerous drug for unlawful administration or
use. Although the trial court determined that Davis “had a needle to prepare it for [a]
dangerous drug for unlawful administration or use,” that is not a crime under this
particular statute. Given the statute’s unambiguous language, an offender must have
actually used the instrument, not merely have possessed the instrument with the intent
to use it at a later time. Compare R.C. 2925.14 (defining “drug paraphernalia” 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 * * * preparing * * * or otherwise
introducing into the human body, a controlled substance” and prohibiting its
possession [emphasis added]).
{¶9} The state directs our attention to Wadsworth v. Eutin, 9th Dist. No.
09CA0074-M, 2010-Ohio-4654. In Eutin, the Ninth Appellate District held that the
prosecution had presented sufficient evidence, albeit circumstantial, that the defendant
had used syringes to administer or prepare a dangerous drug for use where police had
found the syringes with a burnt spoon containing a white, powdery residue in the
defendant’s purse. Id. at ¶ 11.
{¶10} In the case at bar, however, although the state presented evidence that
Davis had previously bought heroin in Ohio and had intended to buy heroin
immediately before his arrest, we cannot say that these facts alone are sufficient to
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OHIO FIRST DISTRICT COURT OF APPEALS
show that Davis had actually used the hypodermic needle and syringe in his pocket
either to unlawfully administer or use a dangerous drug, or to prepare a dangerous drug
for unlawful administration or use. Because the state failed to present any evidence to
support this essential element of possessing a drug abuse instrument—as the legislature
has defined the offense under R.C. 2925.12(A)—we must hold that Davis’s conviction
was not supported by sufficient evidence. Consequently, his further assertion that his
conviction was contrary to the manifest weight of the evidence is rendered moot. See
State v. Hartley, 194 Ohio App.3d 486, 2011-Ohio-2530, 957 N.E.2d 44, ¶ 48 (1st
Dist.).
{¶11} The single assignment of error is sustained. The judgment of conviction
is reversed, and Davis is discharged from further prosecution in this case.
Judgment reversed and appellant discharged.
S UNDERMANN , P.J., H ENDON and F ISCHER , JJ.
Please note:
The court has recorded its own entry this date.
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