[Cite as State v. Ford-Delay, 2022-Ohio-3346.]

IN THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DISTRICT 

MONTGOMERY COUNTY

STATE OF OHIO 

Plaintiff-Appellee

v.

KATIE FORD-DELAY

Defendant-Appellant 

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Appellate Case No. 29310

Trial Court Case No. CRB2100087

(Criminal Appeal from Municipal Court)

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O P I N I O N

Rendered on the 23rd day of September, 2022. 

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ROBERT F. JACQUES, Atty. Reg. No. 0075142, Oakwood Municipal Court Prosecuting 

Attorney, 30 Park Avenue, Oakwood, Ohio 45419

Attorney for Plaintiff-Appellee

 

CHRISTIE M. BEBO, Atty. Reg. No. 0087294, 117 South Main Street, Suite 400, Dayton, 

Ohio 45422

Attorney for Defendant-Appellant

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WELBAUM, J.
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{¶ 1} Defendant-appellant, Katie Ford-Delay, appeals from her conviction in the 

Oakwood Municipal Court for one count of possessing drug abuse instruments. In 

support of her appeal, Ford-Delay contends that the trial court should have suppressed 

evidence of the drug abuse instruments at issue because the instruments were 

discovered as the result of police officers’ detaining her illegally and conducting an 

unlawful search of her purse. Ford-Delay also contends that her conviction was not 

supported by sufficient evidence and that the trial court’s decision to impose a jail 

sentence was an unconstitutional trial tax that punished her for pursuing her right to trial. 

Because we agree that the evidence presented at trial was insufficient to support FordDelay’s conviction for possessing drug abuse instruments, the trial court’s judgment 

convicting Ford-Delay of that offense will be vacated.

Facts and Course of Proceedings

{¶ 2} On July 12, 2021, Officer Jeremy Smith of the Oakwood Police Department 

issued Ford-Delay a citation/summons in lieu of arrest for the offense of possessing drug 

abuse instruments in violation of R.C. 2925.12(A), a misdemeanor of the second degree.1

Ford-Delay was cited after Officer Smith and his partner, Officer Watkins, responded to a 

citizen’s complaint reporting that there were individuals using drugs inside a parked 

vehicle behind the Huntington Bank in Oakwood. After making contact with two of the 

vehicle’s occupants and finding hypodermic needles on or near their persons, the officers 

1 The original citation/summons did not include the section of the Ohio Revised Code that

Ford-Delay had allegedly violated. The State, however, later amended the 

citation/summons to reflect that Ford-Delay was being charged with a violation of R.C. 

2925.12. 
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searched the third occupant, Ford-Delay, and found several hypodermic needles inside 

her purse. The citation/summons issued to Ford-Delay was based on the discovery of 

those needles. 

{¶ 3} Ford-Delay pled not guilty to the cited offense and thereafter filed a motion 

to suppress the hypodermic needles that were found inside her purse. In support of the 

motion, Ford-Delay argued that the hypodermic needles were discovered as a result of 

the officers’ illegally detaining her and conducting an unlawful search of her purse. The 

trial court held a hearing on the motion to suppress, during which Officer Smith testified. 

After hearing Officer Smith’s testimony, the trial court denied Ford-Delay’s motion to 

suppress, and the matter immediately proceeded to a bench trial.

{¶ 4} During the bench trial, Officer Smith was once again called to testify. Officer 

Smith testified that on July 12, 2021, he responded to a dispatch concerning a citizen’s 

complaint of subjects in a vehicle using drugs in the back parking lot the Huntington Bank 

in Oakwood. According to Smith, it was reported that one of the subjects was a white 

female and that the female appeared to be high on drugs. 

{¶ 5} Officer Smith testified that when he arrived at the Huntington Bank parking 

lot, he observed three individuals inside a vehicle that matched the description given in 

the dispatch. Officer Smith first made contact with a male sitting in the rear-passenger 

side of the vehicle with the door open. Officer Smith testified that his partner, Officer 

Watkins, observed a baggie near the male and thereafter conducted a pat-down search, 

which yielded a hypodermic needle on the male’s person. Officer Smith testified that 

after finding the hypodermic needle, the male was detained so that the officers could run 
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his information through their database. Upon doing so, Officer Smith testified that he 

learned the male had an active warrant and therefore placed him under arrest.

{¶ 6} After arresting the male who was in the rear-passenger seat of the vehicle, 

Officer Smith testified that he approached a second male who was sitting in the frontpassenger seat. Officer Smith testified that he asked the second male to exit the vehicle, 

and that when the male stood up, Officer Smith observed a hypodermic needle on the 

seat where the male had been sitting. Officer Smith testified that he found no other 

contraband on the second male. As a result of finding the hypodermic needle, Officer 

Smith issued the second male a citation/summons in lieu of arrest for possessing drug 

abuse instruments.

{¶ 7} After citing the second male, Officer Smith approached a female in the 

driver’s seat of the vehicle, who was later identified as Ford-Delay. Officer Smith ordered 

Ford-Delay to exit the vehicle and observed a purse near the area where she had been 

sitting. Officer Smith asked Ford-Delay if the purse belonged to her and she confirmed 

it did. Officer Smith testified that he then searched the purse and found several 

hypodermic needles inside a clear plastic bag; he found no other contraband on FordDelay’s person or inside her purse.

{¶ 8} Continuing, Officer Smith testified that after he found the hypodermic needles 

in Ford-Delay’s purse, Ford-Delay told him: “I’ll be honest with you. We don’t have any 

drugs, but we’re here at the bank to buy – to get money to go get drugs later.” Trial Tr., 

p. 19. Officer Smith testified that Ford-Delay gave him no other explanation for having 

the needles inside her purse. Officer Smith testified that he did not observe any drug 
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residue on the needles or on any of the bags in question. Officer Smith also testified that 

he did not observe any blood on the needles and that no testing for drug residue was ever 

performed on the needles. 

{¶ 9} Following Officer Smith’s testimony, Ford-Delay moved for an acquittal 

pursuant to Crim.R. 29 on grounds that it was pure speculation that she intended to use 

the hypodermic needles to administer drugs. In opposition, the State argued that FordDelay’s statement to Officer Smith that she and her counterparts had planned on buying

drugs later was sufficient to show that the needles in her purse were intended for drug 

use. The trial court agreed with the State and denied Ford-Delay’s Crim.R. 29 motion.

{¶ 10} After the trial court denied the Crim.R. 29 motion, Ford-Delay testified in her 

defense. During her testimony, Ford-Delay admitted to telling Officer Smith that she and 

her counterparts did not have any drugs but were at the bank to get money to buy drugs 

later. Ford-Delay also admitted to owning the purse that contained the hypodermic 

needles. Ford-Delay, however, claimed that the needles were inside a separate bag that 

belonged to the second male who was located in the front-passenger seat of the vehicle. 

Overall, Ford-Delay denied ownership of the needles and denied ever telling the officers 

that the needles belonged to her.

{¶ 11} After hearing the foregoing testimony, the trial court found Ford-Delay guilty 

of possessing drug abuse instruments in violation of R.C. 2925.12(A). The trial court 
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then sentenced Ford-Delay to 90 days in jail with 76 days suspended2 on the condition 

that Ford-Delay have no similar violations for one year and that she attend a drug and 

alcohol assessment with follow up treatment. The trial court also ordered Ford-Delay to 

pay a $500 fine with $250 suspended. Ford-Delay thereafter filed a motion to stay the 

execution of her sentence, which the trial court granted.

{¶ 12} Ford-Delay now appeals from her conviction, raising three assignments of 

error for review. For purposes of efficiency, we will address Ford-Delay’s second 

assignment of error first, as its disposition resolves the appeal.

Second Assignment of Error

{¶ 13} Under her second assignment of error, Ford-Delay contends that her 

conviction for possessing drug abuse instruments was not supported by sufficient 

evidence. We agree.

{¶ 14} A sufficiency of the evidence argument disputes whether the State has 

presented adequate evidence on each element of the offense to sustain the verdict as a 

matter of law. State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 10, 

citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). “When 

reviewing a claim as to sufficiency of evidence, the relevant inquiry is whether any rational 

factfinder viewing the evidence in a light most favorable to the state could have found the 

2 Due to a mathematical error, the trial court initially stated on the record and in its 

sentencing entry that 72 days of Ford-Delay’s jail sentence were suspended, when in fact 

76 days were suspended based on the date that the trial court ordered Ford-Delay to 

report to jail. On November 24, 2021, the trial court issued an amended sentencing entry 

that corrected the error and reflected the correct number of days that were suspended 

from Ford-Delay’s jail sentence. 
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essential elements of the crime proven beyond a reasonable doubt.” (Citations omitted.) 

State v. Dennis, 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997). “The verdict will not 

be disturbed unless the appellate court finds that reasonable minds could not reach the 

conclusion reached by the trier-of-fact.” (Citations omitted.) Id.

{¶ 15} As previously discussed, the trial court found Ford-Delay guilty of 

possessing drug abuse instruments in violation of R.C. 2925.12(A), which provides that:

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 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.

{¶ 16} “To obtain a conviction under this statute, the state must prove that the 

offender had used the syringe [or hypodermic needle] to unlawfully administer, use, or 

prepare a dangerous drug.” State v. Greenway, 1st Dist. Hamilton No. C-160511, 2017-

Ohio-7729, ¶ 17, citing State v. Young, 5th Dist. Knox Nos. 16-CA-24 and 16-CA-25, 

2017-Ohio-7051, ¶ 39, State v. Lorenzo, 9th Dist. Summit No. 26214, 2012-Ohio-3145, 

¶ 20, and State v. Davis, 1st Dist. Hamilton No. C-110620, 2012-Ohio-2642, ¶ 8. 

Therefore, “an offender must have actually used the instrument, not merely have 

possessed the instrument with the intent to use it at a later time.” Davis at ¶ 8. 
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{¶ 17} In Davis, the First District Court of Appeals held that the State had failed to 

establish a violation of R.C. 2925.12(A) where the evidence merely established that a 

hypodermic needle and syringe were found on a defendant who admitted to officers that 

he occasionally came to Ohio to buy heroin and that he had intended to buy heroin 

immediately before his arrest. Id. at ¶ 3 and ¶ 10. No heroin was found on the 

defendant and no heroin was found in the hypodermic needle or syringe. Id. at ¶ 3. 

Based on that evidence, the First District determined that the State had failed to present 

any evidence establishing that the defendant actually used the hypodermic needle and 

syringe to unlawfully administer or use a dangerous drug or to prepare a dangerous drug 

for unlawful administration or use. Id. at ¶ 10. Accordingly, the court found that the 

State had failed to prove all elements of possessing drug abuse instruments and reversed 

the defendant’s conviction. Id. at ¶ 10-11.

{¶ 18} The Fifth District Court of Appeals reached a similar decision in Young. In 

that case, a police officer located hypodermic needles inside a bag that was found in the 

defendant’s vehicle. Young, 5th Dist. Knox Nos. 16-CA-24 and 16-CA-25, 2017-Ohio7051, at ¶ 40. At trial, the investigating officer testified that he could not tell if the 

hypodermic needles had actually been used for anything, and the State did not introduce 

any evidence establishing that the needles had been used by the defendant. Id. Since 

the State failed to present evidence establishing that the needles had been used by the 

defendant to unlawfully administer or use a dangerous drug or to prepare a dangerous 

drug, the Fifth District held that there was insufficient evidence to find the defendant guilty 

of possessing drug abuse instruments. Id.; see also Lorenzo at ¶ 20-21 (finding 
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insufficient evidence of possessing drug abuse instruments where the evidence merely 

established that the defendant had syringes in his office that were sealed in their original 

packaging). 

{¶ 19} The instant case is analogous to Davis and Young, as the State presented 

no evidence establishing that Ford-Delay used the hypodermic needles in her purse to 

unlawfully administer or use a dangerous drug or to prepare a dangerous drug for unlawful 

administration or use. Specifically, there was no evidence of any drugs inside the vehicle 

in question or on any of the occupants, including Ford-Delay. There was also no 

evidence of drug residue on any of the needles. Contrast Greenway, 1st Dist. Hamilton 

No. C-160511, 2017-Ohio-7729, at ¶ 4 and ¶ 18 (evidence establishing that an officer 

observed a syringe on the floor near the defendant’s right leg and that the syringe had

drug residue inside of it was sufficient to establish a violation of R.C. 2925.12(A)); 

Wadsworth v. Eutin, 9th Dist. Medina No. 09CA0074-M, 2010-Ohio-4654, ¶ 11 (evidence 

establishing that police officers found pieces of a plastic bag with a powdery residue inside 

the defendant’s car and syringes and a burnt spoon with residue on it inside the 

defendant’s purse was sufficient to establish a violation of R.C. 2925.12(A)).

{¶ 20} Although the evidence established that Ford-Delay told Officer Smith that 

she and her counterparts had planned on buying drugs later, and even if we assume that 

Ford-Delay and her counterparts had intended to use the needles at issue to administer 

those drugs, the fact remains that nothing in the evidence established that Ford-Delay 

had actually used the needles to administer a dangerous drug or to prepare a dangerous 

drug for that purpose. Therefore, all elements of possessing drug abuse instruments in 
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violation of R.C. 2925.12(A) were not proven by the State at Ford-Delay’s trial. For that 

reason, Ford-Delay’s conviction for possessing drug abuse instruments was not 

supported by sufficient evidence.

{¶ 21} Ford-Delay’s second assignment of error is sustained.

First and Third Assignments of Error

Under her first assignment of error, Ford-Delay contends that the trial court should have 

granted her motion to suppress the hypodermic needles as evidence because she claims 

the police found the needles by illegally detaining her and by conducting an unlawful 

search of her purse. Under her third assignment of error, Ford-Delay contends that the 

jail sentence imposed by the trial court was an unconstitutional trial tax that punished her 

for pursuing her right to trial. Because we have sustained Ford-Delay’s second 

assignment of error, we need not address her other two assignments of error; our 

resolution of Ford-Delay’s second assignment of error requires that we vacate her 

conviction for possessing drug abuse instruments. 

Conclusion

{¶ 22} Having sustained Ford-Delay’s second assignment of error and having 

overruled her first and third assignments of error as moot, Ford-Delay’s conviction for 

possessing drug abuse instruments is vacated. 

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TUCKER, P.J. and DONOVAN, J., concur. 
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Copies sent to: 

Robert F. Jacques

Christie M. Bebo

Hon. Gregory M. Gantt, Visiting Judge