Mr. Johnston’s Legal Argument ‘I was too impaired with methamphetamine to know I was in possession with methamphetamine.’
We conclude that the State presented sufficient evidence, including ample circumstantial evidence, from which a rational jury could make a reasonable inference that Mr. Johnston knowingly possessed methamphetamine and, therefore, find guilt beyond a reasonable doubt.
State v. Johnston
Fifth District Appellate Court
Fairfield County, Ohio
November 3, 2025
Why is This Case Important?
State v. Johnston is significant particularly for clarifying the boundaries of constructive possession in scenarios involving unconscious or impaired individuals. The court affirms that unconsciousness doesn’t automatically negate possession if prior awareness is inferable through circumstantial evidence.
Background
On June 6, 2024, the Fairfield County Grand Jury indicted Mr. David Johnston on one count of Aggravated Possession of Drugs, a fifth-degree felony, and one count of Illegal Use or Possession of Drug Paraphernalia, a fourth-degree misdemeanor.
The matter proceeded to a jury trial, which commenced on December 17, 2024.
Mr. Johnston Was Asleep or Unconscious on the Bike Path
The evidence at trial revealed the following sequence of events. On the evening of March 7, 2024, at approximately 10:00 p.m., Officers Taylor Dean and Mark Squires of the Lancaster Police Department were patrolling a bike path near West Fair Avenue in Lancaster, Ohio. While conducting their patrol, the officers encountered Mr. Johnston lying on the ground just off the bike path, appearing either asleep or unconscious.
Entrance to the bike path off of West Fair Avenue in Lancaster, Ohio.
A Burnt Straw In His Pocket and THC Brownie Consumption
Concerned for his condition, the officers attempted several times to awaken him. When Mr. Johnston finally responded, he appeared lethargic and disoriented, leading the officers to suspect that he was under the influence of a controlled substance. Their suspicions increased when Officer Dean noticed a green straw protruding from Mr. Johnston’s coat pocket. Upon closer inspection, Officer Dean testified that he observed burn marks on both ends of the straw—marks consistent with having been used to smoke a substance. Officer Dean testified that such straws are commonly used to ingest methamphetamine. Id. When questioned about his condition, Mr. Johnston explained that his lethargy was due to consuming a potent THC-laced brownie.
[A] transparent plastic bag containing a crystalline substance directly beneath Mr. Johnston.
The officers’ investigation soon revealed additional incriminating evidence. Officer Dean testified that he discovered a transparent plastic bag containing a crystalline substance directly beneath Mr. Johnston. The parties stipulated that the bag contained 0.29 grams of methamphetamine, a Schedule II controlled substance. The officers placed Mr. Johnston under arrest and transported him to the Fairfield County Sheriff’s Department for booking.
Mr. Johnston Admitted to Smoking a Little Ice
The State’s evidence did not end with the physical discovery of contraband. During the booking process, Officer Dean testified that Mr. Johnston could be heard telling a nurse that he had smoked “a little ice,” a street term for methamphetamine. The jury was able to view the officers’ encounter with Mr. Johnston – including his demeanor at the scene and his statements during booking – through the body-camera footage recorded by Officer Dean.
The defense elected not to present any evidence, and the case was submitted to the jury.
Jury Verdict – Guilty
After deliberation, the jury returned guilty verdicts on both counts. The trial court imposed a three-year term of community-control sanctions, including inpatient drug treatment, and reserved a twelve-month prison sentence.
Mr. Johnston Appeals
Mr. Johnston argues that his conviction for Aggravated Possession of Drugs is unsupported by sufficient evidence. Specifically, he contends that the State failed to prove he knowingly possessed the baggie of methamphetamine discovered beneath him while he was unconscious on the ground. We disagree.
Aggravated Possession of Drugs O.R.C. §2925.11
Mr. Johnston was convicted of aggravated possession of drugs under O.R.C. §2925.11(A) and (C)(1)(a), which provide, in relevant part: (A) No person shall knowingly obtain, possess, or use a controlled substance or controlled substance analog. … (C)(1)(a) If the drug involved in the violation is a compound, mixture, preparation, or substance included in Schedule I or II… the offender is guilty of aggravated possession of drugs, a felony of the fifth degree.
A person has knowledge of circumstances when the person is aware that such circumstances probably exist.
Knowingly O.R.C. §2901.22(B) sets forth the definition of how and when a person acts knowingly, A person acts knowingly, regardless of purpose, when the person is aware that the person’s conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when the person is aware that such circumstances probably exist. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person subjectively believes that there is a high probability of its existence and fails to make inquiry or acts with a conscious purpose to avoid learning the fact.
Established Case Law – Defendant’s Mental State
Absent an admission, a defendant’s mental state must be inferred from the surrounding facts and circumstances, including the act itself. State v. Johnson, 56 Ohio St.2d 35, 38 (1978), citing State v. Huffman, 131 Ohio St. 27 (1936); see also State v. Rojas, 64 Ohio St.3d 131, 139 (1992); State v. Huff, 145 Ohio App.3d 555, 563 (1d Dist. 2001). Possession
[P]ossession is a voluntary act if the person knowingly procured or received the item or was aware of having control of it for a sufficient time to end the possession.
O.R.C. §2925.01(K) defines “possession” as “having control over a thing or substance,” though it cannot be inferred solely from access to the premises where the item is found. Under O.R.C. §2901.21(D)(1), possession is a voluntary act if the person knowingly procured or received the item or was aware of having control of it for a sufficient time to end the possession.
Established Case Law – Constructive Possession
Possession may be actual or constructive. State v. Butler, 42 Ohio St.3d 174, 176 (1989); State v. Hankerson, 70 Ohio St.2d 87 (1982), syllabus. Constructive possession exists when the defendant can exercise dominion or control over the contraband, even if it is not in his immediate physical possession. State v. Wolery, 46 Ohio St.2d 316, 332 (1976). Dominion and control may be proven by circumstantial evidence, including proximity to the contraband. State v. Trembly, 137 Ohio App.3d 134 (8th Dist. 2000); State v. Barr, 86 Ohio App.3d 227, 235 (8th Dist. 1993); State v. Morales, 2005-Ohio-4714, ¶ 50 (5th Dist.). Ownership of the contraband is unnecessary to establish constructive possession, and multiple individuals may share constructive possession simultaneously. Wolery, 46 Ohio St.2d at 332; State v. Pitts, 2000-Ohio-1986 (4th Dist.).
Established Case Law – Circumstantial Evidence
Circumstantial evidence is defined as “‘testimony not based on actual personal knowledge or observation of the facts in controversy, but of other facts from which deductions are drawn, showing indirectly the facts sought to be proved.’” State v. Nicely, 39 Ohio St.3d 147,150 (1988), quoting Black’s Law Dictionary (5th Ed. 1979).
If the state relies on circumstantial evidence to prove an essential element of an offense, it is not necessary for “such evidence to be irreconcilable with any reasonable theory of innocence in order to support a conviction.” State v. Jenks, 61 Ohio St. 3d 259, 272 (1991) at paragraph one of the syllabus. “Circumstantial evidence and direct evidence inherently possess the same probative value.” Jenks, 61 Ohio St.3d at paragraph one of the syllabus. Furthermore, “[S]ince circumstantial evidence and direct evidence are indistinguishable so far as the jury’s fact-finding function is concerned, all that is required of the jury is that it weigh all of the evidence, direct and circumstantial, against the standard of proof beyond a reasonable doubt.” Jenks, 61 Ohio St. 3d at 272. Analysis
Mr. Johnston’s challenge fails.
Viewed against this legal framework, Mr. Johnston’s challenge fails. Although he was unconscious when the officers first approached, the evidence presented at trial – if believed – demonstrated constructive, if not actual, possession.
The jury observed the officers’ encounter with Mr. Johnston through the body camera video. The footage showed Mr. Johnston in possession of a straw with burnt ends, which Officer Dean testified was commonly used to ingest methamphetamine. Most notably, during booking, Mr. Johnston admitted to a nurse that he had smoked “a little ice,” a street term for methamphetamine.
Established Case Law – Sleeping Defendant
This admission, coupled with the discovery of the methamphetamine directly beneath Mr. Johnston and his possession of drug paraphernalia, permitted the jury to infer that he was aware of the drug’s presence and exercised control over same. These circumstances, viewed collectively, strongly support the conclusion that Mr. Johnston knowingly possessed the methamphetamine. See State v. Shelby, 2019-Ohio-1564, ¶ 26 (6th Dist.) (drugs found on seat, underneath where defendant had been lying; see also State v. Carson, 2024-Ohio-30, ¶ 12 (12th Dist.) (drugs found on lap of sleeping defendant).
Established Case Law – Jury Verdicts
The jury heard the defense’s argument that Mr. Johnston was not aware of the drugs beneath him; however, the jury rejected this explanation. The jury may consider conflicting evidence in determining credibility and the persuasiveness of the account of a witness by either discounting or otherwise resolving the discrepancies. State v. Taylor, 2015-Ohio-2490, ¶ 34 (10th Dist.), citing Midstate Educators Credit Union, Inc. v. Werner, 2008-Ohio-641, ¶ 28 (10th Dist.); State v. Ashcraft, 2023-Ohio-2378, ¶ 25 (5th Dist.). “‘The finder of fact can accept all, part or none of the testimony offered by a witness, whether it is expert opinion or eyewitness fact, and whether it is merely evidential or tends to prove the ultimate fact.’” State v. Petty, 2017-Ohio-1062, ¶ 63 (10th Dist.), quoting State v. Mullins, 2016-Ohio-8347, ¶ 39 (10th Dist.); see also State v. Davis, 2024-Ohio-1504, ¶ 60 (5th Dist.); State v. Brunner, 2017-Ohio-2618, ¶ 22 (5th Dist.). {¶27} In other words, “[W]hen there exist two fairly reasonable views of the evidence or two conflicting versions of events, neither of which is unbelievable, it is not our province to choose which one we believe.” State v. Dyke, 2002-Ohio-1152, ¶ 13 (7th Dist.), citing State v. Gore, 131 Ohio App.3d 197, 201 (7th Dist. 1999); State v. Snider, 2012-Ohio-2183, ¶ 24 (5th Dist.); Davis, 2024-Ohio-1504, ¶ 61.
[W]e conclude … guilt beyond a reasonable doubt.
Having carefully reviewed the record and the applicable law, we conclude that the State presented sufficient evidence, including ample circumstantial evidence, from which a rational jury could make a reasonable inference that Mr. Johnston knowingly possessed methamphetamine and, therefore, find guilt beyond a reasonable doubt.
Conclusion and Holding
Accordingly, we find Mr. Johnston’s conviction for aggravated possession of drugs was supported by sufficient evidence, and we overrule Mr. Johnston’s sole assignment of error.
For the reasons stated in our accompanying Opinion, the judgment of the Fairfield County Court of Common Pleas is affirmed. Costs to Appellant, David Mr. Johnston.
Information for this article was obtained from State v. Johnston, 2025 – Ohio – 5023.
State v. Johnston, 2025 – Ohio – 5023 was issued by the Fifth District Appellate Court and is binding in the following Ohio Counties: Ashland, Coshocton, Delaware, Fairfield, Guernsey, Holmes, Knox, Licking, Morgan, Morrow, Muskingum, Perry, Richland, Stark and Tuscarawas.
Lessons Learned
- Constructive Possession – The Constructive Possession doctrine was established by the Supreme Court of Ohio in 1982. That court carved out a two-part Constructive Possession test; 1) When an individual knowingly exercises dominion and control over an object, even though that object may not be within his immediate physical control; 2) The defendant was conscious of the object’s presence. State v. Hankerson, 70 Ohio St.2d 87 (1982) The most challenging element is to prove that the person was conscious of the object. In this case the factors that provided the ‘conscious’ legal element, while Mr. Johnston was unconscious were 1) Straw with burnt ends. 2) Baggie beneath Mr. Johnston. 3) His statement that he smoked a little ice. 4) Demeanor captured on body camera and testimony by the officers.
- Dominion and Control – On February 8, 1993 the Eighth District Appellate Court issued State v. Barr, 86 Ohio App.3d 227, 235 (8th Dist. 1993). There the court explained “Moreover, readily usable drugs found in very close proximity to a defendant may constitute circumstantial evidence and support a conclusion that the defendant had constructive possession of such drugs.”. In this case, Mr. Johnston was laying on top of the baggie of methamphetamine so he was in ‘very close proximity’ in accordance with the language in Barr. The fact that he was impaired to the point of unconsciousness – laying down, is not a reasonable defense that he was not in constructive possession of his methamphetamine.
- Pre–Sent Arms! Lancaster Police Officer Taylor Dean, Officer Mark Squires and the Fairfield County Prosecutor’s Office should all be highly commended for their arrest, prosecution and successful appeal defense of Mr. Johnston. Well done!
Does your agency train on Constructive Possession?
Don’t fail your training.
Don’t let your training fail you!
Be safe, smart and objectively reasonable!