         [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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