[Cite as State v. Davis, 2012-Ohio-2642.] 

 

 

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. 

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

STATE OF OHIO, 

 Plaintiff-Appellee 

 

 vs. 

JUSTIN DAVIS, 

 Defendant-Appellant. 

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APPEAL NO. C-110620 

TRIAL NO. 11CRB-16060 

 

O P I N I O N.
OHIO FIRST DISTRICT COURT OF APPEALS

2

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. 
OHIO FIRST DISTRICT COURT OF APPEALS

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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 
OHIO FIRST DISTRICT COURT OF APPEALS

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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 
OHIO FIRST DISTRICT COURT OF APPEALS

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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. 

SUNDERMANN, P.J., HENDON and FISCHER, JJ. 

Please note: 

 The court has recorded its own entry this date.