[Until this opinion appears in the Ohio Official Reports advanc e sheets, it may be cited as State v. Foreman , Slip Opinion No. 2021-Ohio-3409.]

NOTICE This slip opinion is subject to f ormal revision before it is pu blished in an advance sheet of the Ohio Official Reports. Readers are reques ted to promptly notify the Reporter of Decisions, Supreme Court of Ohi o, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.

S LIP O PINION N O
. 2021-O HIO -3409

T HE S TATE OF O HIO , A PPELLEE v. F OREMAN , A PPELLANT
. [Until this opinion appears in t he Ohio Official Reports advanc e sheets, it may be cited as State v. Foreman , Slip Opinion No. 2021-Ohio-3409.] Criminal law—Venue—R.C. 2901.12—Sufficiency of the evidence—Possession of drugs—Mere presence of drug met abolites in defendant’s body, without more, is insufficient evidence to est ablish venue in the charging county for drug-possession offense—Court of appeals’ judgment reversed and
conviction vacated. (No. 2020-0866—Submitted May 12, 2021— Decided September 30, 202 1.)

A PPEAL from the Court of Appeals fo r Seneca County, No. 13-19-01,
2020-Ohio-3145.

_____________________ O’C ONNOR , C.J. {¶ 1} In this appeal, we consider a que stion of venue: whether appell ee, the state of Ohio, proved beyond a reas onable doubt tha t appellant, Kelly A. Foreman, committed the offense of possession of cocaine or any element o f that offenseS UPREME C OURT OF O HIO

2 within Seneca County. Because we conclude that it did not, we reverse the judgment of the Third District Court of Appeals and vacate Fore man’s conviction for possession of cocaine. I. Relevant Background {¶ 2} After a bench trial in the Senec a County Court of Common Pleas, Foreman was convicted of one count of possession of cocaine in violation of R.C. 2925.11(A) and (C)(4)(a), a fifth-degree felony. The charge st emmed from the results of drug testing that was performed soon after Foreman g ave birth to her son, J.B., at Tiffin Mercy Hospital, which is in Seneca County, Ohio . After Foreman gave birth to J.B., he exhibited symptoms of drug withdrawal an d was tested for illegal substances. The test results showed the presence of co caine metabolites (the compounds that are produced when the body metabolizes cocaine) in the umbilicalcord tissue and in J.B.’s urine and meconium. {¶ 3} At trial, Dr. Christian Meade, a pediatrician with Tiffin Mercy Hospital, testified regarding his treatment of J.B. and the tes ts that were performed. He explained that the meconium accumulates “for several months” and generally reflects “what the baby has been exposed to in the second or th ird trimester.” Notably, Dr. Meade did not testify as to the amount of time tha t cocaine metabolites
remain in the umbilical-cord tissu e or a newborn’s urine after the mother’s ingestion of cocaine. Nor did t he state introduce any other ev idence on that subject. {¶ 4} Because J.B. tested positive for illegal substances, Megan Stey er, who was a protective-services caseworker with the Seneca County Dep artment of Job and Family Services, interviewed Foreman. Steyer testified tha t Foreman admitted to using cocaine 6 to 12 times while she was pregnant, with the most recent use having been about two weeks before J.B.’s birth. Foreman infor med Steyer, however, that she never used cocaine in front of her children, that her fiancé did not
know about her cocaine use because she used it while he was at work, and that she
did not use it at her reside nce in Seneca County.January Term, 2021

3 {¶ 5} At trial, Foreman did not dispute any of the evidence presented and even acknowledged during closing arguments that the state offer ed circumstantial evidence that “at some point in the past * * * [she] had somewh ere and sometime possessed cocaine.” Rather, Forem an argued that the state fail ed to prove venue in Seneca County beyond a reasonable doubt and moved for acquittal pursuant to Crim.R. 29 on that basis. Foreman insisted that once a control led substance assimilates into a person’s body, the person no longer has cont rol over it and does not possess it. Thus, Foreman asse rted that she may have posse ssed cocaine when she ingested it but that the state presented no evidence provin g that she possessed cocaine in Seneca County. {¶ 6} In response, the state argued that it proved “beyond a reasonab le doubt that Ms. Foreman did possess cocaine in Seneca County, as it wa s in her body at the time she gave birth to her son.” The trial court ultimatel y agreed with the state, denied Foreman’s Crim.R. 29 motion, found Foreman guilty of pos session of cocaine in violation of R.C. 2925.11(A) and (C)(4)(a), and sent enced her to a threeyear period of community control. {¶ 7} On appeal, Foreman maintained that the state failed to establis h venue in Seneca County. In a split decision, the court of appeals di sagreed with Foreman and affirmed her conviction for possession of cocaine. 2020-Oh io-3145, 155 N.E.3d 168, ¶ 16, 18. In doing so, the majority reasoned that for purposes of establishing that a defendant possessed a controlled substance in a particular county, “it is of no consequence whether the controlled substan ce [was] discovered in [the] defendant’s pocket or in any cellular matter expelled by his or her body.”

Id . at ¶ 16. It concluded that the state presented sufficient ev idence that Foreman possessed cocaine in Seneca County based on the “cocaine discov ered in J.B.’s umbilical cord, urine, and meconi um, which were collected after his birth at Tiffin Mercy Hospital.” Id

.S UPREME C OURT OF O HIO

4 {¶ 8} We accepted Foreman’s discretionary appeal to address the follo wing proposition of law: “Because a conviction for drug possession r equires the state to prove that an offender ‘ha[d] cont rol over a thing or substance ,’ the mere presence of drug metabolites in a defenda nt’s body, without more, does n ot suffice to establish venue in the charging county.” 160 Ohio St.3d 1407, 2020-Ohio-4574, 153 N.E.3d 106, quoting R.C. 2925.01(K). II. Analysis {¶ 9} At the heart of the parties’ dis pute is the question whether a defendant may possess cocaine within the meaning of R.C. 2925.11(A) by ha ving cocaine metabolites in his or her body. T he court of appeals held that a defendant may do so and that the state proved venue beyond a reasonable doubt be cause “Foreman possessed the cocaine discovered in J.B.’s umbilical cord, urin e, and meconium,
which were collected after his bi rth at Tiffin Mercy Hospital.” 2020-Ohio-3145 at ¶ 16. Stated differently, the c ourt of appeals determined that Foreman committed the element of “possession” in Se neca County at the time that s he gave birth; the presence of cocaine in her body at that moment (as evidenced by the positive drugtest results), in and of itsel f established possession within t he meaning of R.C.
2925.11. See id. And because the birth occurred at a hospital in Seneca County, venue was sufficiently established. Id. at ¶ 16-17. {¶ 10} The state and amicus curiae Ohio Prosecuting Attorneys Associat ion maintain that theory here. However, the state also asserts tha t when all the facts and circumstances are viewed together—including the positive dr ug-test results and the evidence showing that Forem an resided in Seneca County duri ng her pregnancy, gave birth to J.B. there, and admitted to using coca ine on multiple occasions while pregnant—it is c lear that venue in Seneca Count y was proved. {¶ 11} Foreman disagrees, arguing that a person cannot possess a contr olled substance that has already been assimilated into that person’s body. At that point, Foreman asserts, the person no longer “ha[s] control over” the substance. AndJanuary Term, 2021

5 therefore, Foreman contends, the state failed to prove venue be yond a reasonable
doubt because it submitted no eviden ce at trial showing that sh e possessed cocaine in Seneca County. A. Applicable law {¶ 12} Article I, Section 10 of the Ohio Constitution affords the accu sed the right to “a speedy public trial by an impartial jury of the cou nty in which the offense is alleged to have been committed.” That provision accordingly “fixes venue, or the proper place to try a criminal matter * * *.” State v. Headley , 6 Ohio St.3d 475, 477, 453 N.E.2d 716 (1983). Additionally, R.C. 2901.12 contain s “the statutory foundation for venue,” State v. Draggo , 65 Ohio St.2d 88, 90, 418 N.E.2d 1343 (1981), and provides that “[t]he tr ial of a criminal case in th is state shall be held in a court having jurisdiction of the subject matter, and * * * in the territory of which the offense or any element of the offense was committed.” R.C. 2901.12(A). {¶ 13} “Under Article I, Section 10 a nd R.C. 2901.12, evidence of prop er venue must be presented in order to sustain a conviction for an offense.” State v. Hampton , 134 Ohio St.3d 447, 2012-Ohio-5688, 983 N.E.2d 324, ¶ 20. Al though venue is not a material element of any criminal offense, Draggo at 90, it is a fact that must be proved at trial beyond a reasonable doubt, unless it has been waived by the defendant, Headley at 477, citing State v. Dickerson , 77 Ohio St. 34, 82 N.E. 969 (1907), paragraph one of the syllabus. Therefore, a “convi ction may not be had” if the state fails to prove beyond a reasonable doubt that the defendant committed the alleged offe nse or an element of the offense in t he charging county.

State v. Nevius , 147 Ohio St. 263, 71 N.E.2d 258 (1947), paragraph three of the syllabus; see also Hampton at ¶ 19. The state need not prove venue “in express terms,” provided that “all the facts and circumstances in the c ase” establish it. Headley at 477, citing Dickerson at paragraph one of the syllabus. {¶ 14} Here, the state charged Forema n with possession of cocaine in violation of R.C. 2925.11(A). Tha t statute provides, “No perso n shall knowinglyS UPREME C OURT OF O HIO

6 obtain, possess, or use a controlled substance,” R.C. 2925.11(A ), and R.C. 2925.11(C) establishes separate off enses based on the identity of the controlled
substance involved. See State v. Eafford , 132 Ohio St.3d 159, 2012-Ohio-2224, 970 N.E.2d 891, ¶ 13. Relevant here, R.C. 2925.11(C)(4) prescr ibes the offense of “possession of cocaine.” And R. C. 2925.01(K) defines the terms “possess” and “possession” as “having contro l over a thing or substance.”
B. Foreman did not have control over th e cocaine at the time that she gave birth {¶ 15} To establish venue in this case, the state had to prove beyond a reasonable doubt that Foreman co mmitted the offense of possessi on of cocaine or an element of that offense within Seneca County. Because the p arties dispute whether the “possession” element of the offense occurred in Sen eca County, we focus our analysis on that issue. As noted above, Foreman and the state disagree regarding whether Foreman posse ssed cocaine in Seneca County at the time that she gave birth to J.B. at Tiffi n Mercy Hospital, where toxicolo gy reports revealed that cocaine metabolites were present in the umbilical cord and J.B.’s urine and
meconium. {¶ 16} The first question that we must consider is whether, at the tim e of J.B.’s birth, Foreman possessed, i .e., had control over, the as similated cocaine that was subsequently discovered in t he umbilical cord and J.B.’s ur ine and meconium. Perhaps unsurprisingly, this cour t has never addressed the elem ent of “possession” in that context. Other courts have considered similar issues, however, and the great majority of them have held that the mere presence of a controll ed substance in a person’s blood or urine does not e stablish that the person poss essed the controlled
substance. See, e.g. , State v. Griffin , 220 Wis.2d 371, 381, 584 N.W.2d 127 (1998) (holding that “the presence of dr ugs in [the defendant’s] urine and blood stream, without more, is insufficient ev idence on which to base a posse ssion conviction”);

State v. Harris , 361 N.C. 400, 403-404, 646 S.E.2d 526 (2007) (concluding that a positive urinalysis indicating the presence of marijuana metabo lites alone isJanuary Term, 2021

7 insufficient evidence to prove t hat the defendant possessed mar ijuana); State v.

Montaño , 136 N.M. 144, 2004-NMCA-094, 95 P.3d 1059, ¶ 9 (holding simil arly). {¶ 17} The reasoning underlying those conc lusions is that when a contr olled
substance is assimilated into a person’s body, the person loses the ability to control or possess the substance. See, e.g. , State v. Hornaday , 105 Wash.2d 120, 126-127, 713 P.2d 71 (1986), superseded by statute on other grounds as stated in State v. Ortega , 177 Wash.2d 116, 126, 297 P.3d 57 (2013); State v. Thronsen , 809 P.2d 941, 943 (Ala.App.1991). The Kansas Supreme Court articulated it well in State v. Flinchpaugh , 232 Kan. 831, 834, 659 P.2d 208 (1983):

Once a controlled substance is within a person’s system, the power of the person to control, possess, use, [or] dispose of * * * [it] is at an end. The drug is assimilated by the body. The abilit y to control the drug is beyond hum an capabilities. The essential
element of control is absent. Evidence of a controlled substan ce after it is assimilated in a per son’s blood does not establish possession or control of that substance.

{¶ 18} By way of contrast, when a pers on ingests a drug that has been placed in a small plastic bag or another type of container to c onceal it within the person’s body, the person may stil l exercise control over the d rug. See State v.
Rudd , 70 Wash.App. 871, 873, 856 P.2d 699 (1993); People v. Spann , 187 Cal.App.3d 400, 403-404, 232 Cal.Rptr. 31 (1986); see also United States v. Shuler , 373 Fed.Appx. 949, 952-953 (11th Cir.2010). Once the drug is r etrieved or expelled from the person’s body, the person may choose what to do with it. Stated differently, possession of the drug does not cease in that situ ation, see Rudd at 873, because the person ingested the drug in a way that prevented it from assimilating into the person’s body.S UPREME C OURT OF O HIO

8 {¶ 19} We find this reasoning persuasive and accordingly reject the st ate’s argument that Foreman possessed cocaine at the time that she ga ve birth to J.B. in Seneca County. As noted above, the statutory definition of the word “possession” requires having control over a substance or thing. See R.C. 2925.01(K). Foreman, by her own admission, ingested coc aine several times during her pregnancy. However, once she ingested the c ocaine and it assimilated into her body, she no longer had control over it. {¶ 20} Consequently, at the time of J.B .’s birth, Foreman was unable t o exercise restraint, direct influence, or exert power over the c ocaine that she had previously ingested. See Webster’s Third New In ternational Dictionary 496 (2002) (defining the word “control” as “to exercise restraining or dir ecting influence over” or “to have power over”). There was no longer an array of acti ons available to Foreman by which she could do with the cocaine whatever she wan ted—whether that be to dispose of it, retrieve it, or destroy it. Because Foreman did not “hav[e] control over” the cocaine at any point during her time at the h ospital, she did not possess it. See R.C. 2925.01(K). We therefore conclude that evidence of the me re presence of cocaine metabolites in Foreman’s body at the time t hat she gave birth to J.B. at Tiffin Mercy Hospital was insufficient to prove that she possessed cocaine in Seneca County. {¶ 21} Further, we find the state’s pos ition to the contrary rather tr oubling. As noted above, the state maintains that “to simply establish v enue the connection between Foreman’s possession of c ocaine was made when the hospi tal tested the umbilical cord affirming that yes, she still had possession of cocaine in that moment, in Seneca County, Ohio.” Under that theory, a person c ould be charged with the offense of possession of a controlled substance in eve ry single Ohio county in which the person tests positive for a controlled substance, regardless of where or when the person ingested it.January Term, 2021

9 {¶ 22} For instance, consider a person who ingests cocaine in Ashtabul a County and then drives sober to Hamilton County a few days late r. By the state’s reasoning, that person could be charged with possession of coca ine in each and every county through which that p erson traveled, based on the s ole fact that some assimilated form of cocaine remained in his system. The only e vidence that the state would need to present to prove the offense in the chargin g county would be the person’s positive drug test. {¶ 23} Or imagine if that same person i ngested cocaine in a country wh ere possession of cocaine in small amounts for personal use is lega l, see Tony Dunnell, Drugs in Peru: The Laws of Legal and Illegal Possession , New Peruvian (May 23, 2018), http://www.newperuvian.com/d rugs-in-peru-legal-and-illeg al/ (accessed Sept. 23, 2021) [https://perma.cc/ DK5B-4LZY], and then traveled to Ohio. Because cocaine metabolites can g enerally be detected in urine for days and in some cases for over a week after ingestion, see Joyce Nickley et al., A sensitive assay for urinary cocaine metabolite benzoylec gonine shows more positive results and longer half-lives than those using traditional cut-offs , 9 Drug Testing & Analysis 1214-1216 (2017), available at http s://analyticalsciencejournal s.onlinelibrary. wiley.com/doi/pdf/10.1002/dta .2153 (accessed Sept. 23, 2021) [https://perma.cc/JQN3-A3UA], that person could be prosecuted f or cocaine possession in any Ohio county that he enters—even though he ing ested it in a country where its use is legal ove r a week before he entered Oh io. {¶ 24} This court could go on with scenarios illustrating the expansiv eness of the state’s position. But w e will stop here and note that a dopting the state’s position—i.e., that a person commits the element of “possession ” in the charging county merely when th e assimilated controlle d substance is in t he person’s body— seems dangerously similar to the criminalization of the “status ” of having previously used or ingested a controlled substance. See Robinson v. California , 370 U.S. 666-667, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962) (holding that a CaliforniaS UPREME C OURT OF O HIO

10 statute violated the Eighth and Fourteenth Amendments to the Un ited States Constitution, as applied, because it made “the ‘status’ of narc otic addiction a criminal offense for which the offender may be prosecuted ‘at a ny time before he reforms,’ * * * even though he has never touched any narcotic d rug within the State or been guilty of any irregular behavior there”); State v. Robinson , 2011 UT 30, 254 P.3d 183, ¶ 31 (“simply having the metabolite of a controll ed substance in the body is similar to a ‘status’ of having previously ingested the controlled substance”). We need not reach that issue today, however, in l ight of our conclusion that the mere presence of cocaine metabolites in For eman’s body was insufficient evidence to prove t hat she possessed cocaine in Se neca County. C. There was insufficient circumstantial evidence presented establishing venue in Seneca County {¶ 25} We also conclude that there was insufficient circumstantial evi dence presented to establish venue in Seneca County. As noted above, the state contends that the positive drug-test results, in conjunction with the fa ct that Foreman resided in Seneca County during her pregnancy, gave birth to J.B. there , and admitted to using cocaine on multiple occasions while she was pregnant esta blished venue in Seneca County. The state emphasi zes that venue need not be pro ved in express terms but may be est ablished by all the facts and circumstances in the case. {¶ 26} It is true that the presence of assimilated drugs in a person’s system may be circumstantial evidence of the person’s prior possession of the drug. See Griffin , 220 Wis.2d at 381, 584 N.W.2d 127 (“Although the presence of drugs in someone’s system, standing alone , is insufficient to support a conviction for possession, the presence of drugs is circumstantial evidence of prior possession”); Flinchpaugh , 232 Kan. at 835, 659 P.2d 208 (same). Based on a positive dr ug-test result, a fact-finder may deduce that the defendant ingested th e drug and likely possessed it but is left to speculate as to where that prior possession occurred. Thus, for purposes of proving venue under R.C. 2901.12(A), sufficient corroboratingJanuary Term, 2021

11 evidence is necessary to prove beyond a reasonable doubt that t he defendant possessed the drug within the charging county. See Logan v. Cox , 89 Ohio App.3d 349, 354, 624 N.E.2d 751 (4th Dist.1993); Griffin at 381; Flinchpaugh at 835-836. {¶ 27} Here, there was no such corroborating evidence presented at tri al “tending to prove” that Foreman possessed the cocaine at a prio r time in Seneca County. See State v. Nicely , 39 Ohio St.3d 147, 155, 529 N.E.2d 1236 (1988). The
fact that Foreman lived in Sen eca County when she was pregnant with J.B. does not establish that she possessed cocaine there. And in fact, e vidence presented at trial suggested otherwise—the pro tective-services caseworker te stified that
Foreman stated that she never us ed cocaine in front of her chil dren, that her fiancé
did not know about her cocaine use , and that she did not use it at her home in Seneca County. Nor does the fact that Fo reman gave birth to J.B. in S eneca County establish that Foreman p ossessed cocaine there. {¶ 28} The state repeatedly emphasizes in its merit brief that Foreman admitted to using cocaine while she was pregnant with J.B. and estimated that she
used cocaine within two weeks before J.B.’s birth. It maintain s that this suggests that Foreman knowingly possesse d cocaine within Seneca County. But again, that evidence does not prove venue in Seneca County beyond a reasona ble doubt. It merely establishes that Foreman possessed cocaine somewhere at some time, not that Foreman possessed co caine in Seneca County. {¶ 29} The record before us does not reflect that Foreman ever informe d the caseworker of where she ingested the cocaine, let alone that sh e did so in Seneca County. See State v. Barno , 11th Dist. Portage No. 2000-P-0100, 2001 WL 1116908, *5-6 (Sept. 21, 2001) (noting that the underage defend ant admitted that she had been drinking alcoholic beverages at a hotel located wi thin the charging county). Nor did the state present evidence that Foreman had b een in Seneca County during the two-week timeframe in which she admitted to u sing cocaine prior to J.B.’s birth. The sta te offered no evidence concernin g the amount of timeS UPREME C OURT OF O HIO

12 that cocaine metabolites remain in a person’s system after inge sting it or evidence demonstrating Foreman’s wherea bouts during such a timeframe. See State v. Scott , 8th Dist. Cuyahoga No. 63234, 1994 WL 173716, *2-3 (May 5, 1994 ) (reasoning that a toxicologist’s testimony re garding how long cocaine meta bolites remain in a person’s system after ingestion and evidence that the defendant was working in the charging county during that timeframe was sufficient to establi sh that the defendant possessed cocaine in the charging county); see also State v. McGowan , 8th Dist. Cuyahoga No. 63491, 1993 W L 311372, *1-2 (Aug. 12, 1993). {¶ 30} Further, we do not find the cases on which the state and amicus curiae Ohio Prosecuting Attorneys Association rely persuasive, because in those cases there was evidence corroborating positive drug-test resul ts and establishing that the defendants obtained, us ed, or possessed a controlled s ubstance in the charging county. See, e.g. , State v. Napper , 3d Dist. Marion No. 9-91-11, 1991 WL 256521, *3 (Nov. 27, 1991) (holding that evidence that the poli ce discovered cocaine and drug paraphernalia at the defendant’s residence and testimony regarding the period of time that cocaine metabolites remain in urine was sufficient evidence to establish venue in the charging county); State v. Moyar , 3d Dist. Auglaize No. 2-06-10, 2006-Ohio-5974, ¶ 14-18 (police found coc aine in defendant’s bedroom and drug paraphernalia on his person); McGowan at *2-3 (toxicologist testified that defendant’s positive urine screen implicated recent use within two to four hours, and de fendant was located within the charging county during that time). No such corroborating evidence was presente d in this case, however; there was no evidence that drugs or drug paraphernalia were discovered at Foreman’s residence or on her person, and there was no eyewi tness testimony that Foreman purchased cocaine in Seneca County. The evidence demonstrated only that Foreman ingested cocaine several times while she was pregnant with J.B.
There was no other evidence offere d that tended to prove that s he possessed theJanuary Term, 2021

13 cocaine at a prior time in Seneca County

. See Logan , 89 Ohio App.3d at 354, 624
N.E.2d 751.
III. Conclusion {¶ 31} There is no doubt that the underlying events in this case are
unfortunate. But the state had the burden of proving venue bey ond a reasonable
doubt. Hampton , 134 Ohio St.3d 447, 2012-Ohio-5688, 983 N.E.2d 324, at ¶ 19.
And it failed to meet that burde n, neglecting to develop its ca se to sufficiently establish venue. As a result, based on the record before us, w e conclude that the state failed to prove beyond a reasonable doubt that Foreman co mmitted the offense of possession of cocaine in Seneca County. Because venue must be proved to sustain a conviction for an offense, Headley , 6 Ohio St.3d at 477, 453 N.E.2d 716, citing Draggo , 65 Ohio St.2d at 90, 418 N.E.2d 1343, Foreman’s conviction fo r possession of cocaine may not sta nd. Accordingly, we reverse t he judgment of the Third District Court of Appeals holding otherwise and vacate Fo reman’s conviction for possession of cocaine , R.C. 2925.11(A) and (C)(4). Judgment reversed
and conviction vacated.

K ENNEDY , F ISCHER , D E W INE , D ONNELLY , S TEWART , and B RUNNER , JJ.,

concur.

_________________ Derek W. DeVine, Seneca County Pr osecuting Attorney, and Rebeka Beresh, Assistant Prosecu ting Attorney, for appellee. Timothy Young, Ohio Public Defender, and Craig M. Jaquith, Assi stant Public Defender , for appellant. Paul A. Dobson, Wood County Prosecu ting Attorney, and David T. Harold, Assistant Prosecuting Attorney, urging affirmance for amicus cu riae Ohio Prosecuting Attorneys Association.S UPREME C OURT OF O HIO

14 David J. Carey, Elena Thompson, and Freda J. Levenson, urging r eversal
for amicus curiae American C ivil Liberties Union of Ohio Founda tion.

_________________