         [Cite as State v. Robinson, 2018-Ohio-1315.]
                      IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                       HAMILTON COUNTY, OHIO




STATE OF OHIO,                                    :     APPEAL NO. C-170473
                                                        TRIAL NO. C-17CRB-22321
        Plaintiff-Appellee,                       :
                                                           O P I N I O N.
  vs.                                             :

ROBERT ROBINSON,                                  :

    Defendant-Appellant.                          :




Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Reversed and Appellant Discharged

Date of Judgment Entry on Appeal: April 6, 2018




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex Scott Havlin,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Carrie Wood, Assistant
Public Defender, for Defendant-Appellant.
                     OHIO FIRST DISTRICT COURT OF APPEALS



D ETERS , Judge.

       {¶1}   Following a plea of no contest, defendant-appellant Robert Robinson

was convicted of one count of possessing drug-abuse instruments under R.C.

2925.12. We reverse his conviction and discharge him from further prosecution.

       {¶2}   In his sole assignment of error, Robinson contends that the trial court

erred when it failed to enter a not-guilty finding following his no-contest plea. He

argues that the state’s explanation of circumstances failed to establish all of the

elements of a violation of R.C. 2925.12. This assignment of error is well taken.

       {¶3}   A plea of no contest to a misdemeanor offense “shall constitute an

admission of the truth of the facts alleged in the complaint and that the judge or

magistrate may make a finding of guilty or not guilty from the explanation of

circumstances of the offense.” R.C. 2937.07. To find the defendant guilty, the

explanation of circumstances must contain sufficient information to support all of

the essential elements of the offense. Cuyahoga Falls v. Bowers, 9 Ohio St.3d 148,

150, 459 N.E.2d 532 (1984); State v. Valentine, 1st Dist. Hamilton No. C-070388,

2008-Ohio-1842, ¶ 5. When the explanation of circumstances fails to satisfy all of

the elements of an offense, the defendant has a substantive right to be discharged by

a finding of not guilty. Bowers at 150; Valentine at ¶ 5.

       {¶4}   Robinson pleaded no contest to a 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 or 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,


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                      OHIO FIRST DISTRICT COURT OF APPEALS


       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.

       {¶5}     This statute applies only where the instrument involved is a

hypodermic or syringe. State v. Mateo, 57 Ohio St.3d 50, 54, 565 N.E.2d 590 (1991);

State v. Diorio, 7th Dist. Mahoning No. 05 MA 230, 2007-Ohio-3401, ¶ 44; State v.

Mason, 8th Dist. Cuyahoga No. 60331, 1992 WL 110252, *4 (May 21, 1992). If a

hypodermic or syringe is not involved, the proper charge is possessing criminal tools

under R.C. 2923.24. See Mateo at 54; Diorio at ¶ 44; Mason at *4.

       {¶6}     In its explanation of circumstances, the state expressed that Robinson

knowingly possessed “a silver pipe with Charboy and burn marks * * * which means

that it is used to smoke crack cocaine.”            Since the state’s explanation of

circumstances did not show that Robinson possessed a hypodermic or syringe, it

failed to establish all of the elements of possessing drug-abuse instruments under

R.C. 2925.12.

       {¶7}     Consequently, the trial court erred in finding Robinson guilty of the

offense. We sustain his assignment of error, reverse his conviction, and discharge

him from further prosecution.

                                         Judgment reversed and appellant discharged.



C UNNINGHAM , P.J., and M YERS , J., concur.


Please note:
       The court has recorded its own entry this date.




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