The mere presence of cocaine in a woman’s system at the time that she gave birth in a Seneca County hospital was not sufficient to charge her with felony cocaine possession in Seneca County, the Ohio Supreme Court ruled today.

In a unanimous decision, the Supreme Court vacated the conviction of Kelly Foreman. She was charged with cocaine possession after drug testing of her newborn child, identified as J.B., showed the presence of cocaine metabolites. Foreman challenged her conviction, claiming the state failed to prove venue because there was no evidence that she possessed cocaine in Seneca County.

Writing for the Court, Chief Justice Maureen O’Connor stated that to establish venue in the charging county, the state must prove she had control over the substance that was “assimilated into” her body.

“Foreman, by her own admission, ingested cocaine several times during her pregnancy. However, once she ingested the cocaine and it was assimilated into her body, she no longer had control over it,” Chief Justice O’Connor wrote. “Consequently, at the time of J.B.’s birth, Foreman was unable to exercise restraint, direct influence, or exert power over the cocaine that she had previously ingested.”

Mother Admits Occasional Drug Use
In 2018, Foreman gave birth to her son J.B. in Tiffin Mercy Hospital. The child exhibited symptoms of drug withdrawal and was tested for illegal substances. The results revealed the presence of cocaine metabolites, which are compounds produced when the body metabolizes cocaine, in J.B.’s urine and feces as well as in the umbilical cord tissue.

Because J.B. tested positive, a county protective-services worker interviewed Foreman. Foreman admitted to using cocaine six to 12 times while she was pregnant, the most recent use about two weeks before giving birth. Foreman told the caseworker that she never used cocaine in front of her other children, did not use cocaine at her residence in Seneca County, and used it while her fiancé was at work because she did not want him to know about her cocaine use.

The Seneca County prosecutor charged Foreman with one count of cocaine possession, a fifth-degree felony under R.C. 2925.11(A) and (C)(4)(a). At her trial, Foreman did not dispute that at some point, somewhere, she possessed cocaine. But the state failed to prove Seneca County was the proper venue to charge her with the crime. Because the prosecution failed to prove proper venue beyond a reasonable doubt, she asked the trial court to acquit her of the charge.

The trial court disagreed, convicting Foreman. She was sentenced to three years of community control. Foreman appealed her conviction to the Third District Court of Appeals, which affirmed the trial court’s decision. Foreman appealed to the Supreme Court, which agreed to hear the case.

Constitution’s Venue Requirement Explained
Chief Justice O’Connor explained that Article 1, Section 10 of the Ohio Constitution grants the accused the right to a speedy trial by an impartial jury “of the county in which the offense is alleged to have been committed.” The state constitution requires evidence of proper venue to sustain a conviction. Venue is a fact that must be proved at trial beyond a reasonable doubt unless waived by the defendant.

The prosecutor argued that the presence of cocaine in Foreman’s body at the time that she gave birth established possession in Seneca County.  The prosecutor also argued that when all the facts and circumstances are viewed together – the positive drug test results and the evidence demonstrating that Foreman resided in Seneca County during her pregnancy, gave birth to J.B. there, and admitted to using cocaine on multiple occasions while pregnant – prove that Seneca County was the proper venue for her trial.

Foreman countered that a person cannot “possess” a controlled substance once it has been assimilated into that person’s body, and the state submitted no evidence at trial showing that she possessed cocaine in Seneca County.

To establish venue, the opinion stated, the state had to prove beyond a reasonable doubt that Foreman committed the offense of possession of cocaine within Seneca County. State law defines possession as having control, the opinion explained.

Supreme Court Analyzes Possession Claim
The Court explains that it must consider whether, at the time of J.B.’s birth, Foreman possessed the assimilated cocaine that was subsequently discovered in the umbilical cord and J.B.’s bodily fluids, and notes that, “perhaps unsurprisingly,” it has never addressed the issue of possession in that context. However, other courts have had similar issues and held that the mere presence of a controlled substance in a person’s blood or urine does not establish the person possessed the controlled substance.

The opinion noted decisions from Wisconsin, North Carolina, New Mexico, Washington, Alaska, and Kansas. In 1983, the Kansas Supreme Court ruled in State v. Flinchpaugh that once a controlled substance is within a person’s system, the power of the person to control, possess, use, or dispose of it has ended. The drug is assimilated by the body, and the “ ‘ability to control the drug is beyond human capabilities,’ ” the opinion noted.

The Ohio Supreme Court contrasted the Kansas analysis with cases in which drugs have been placed in small plastic bags or other containers to conceal within the person’s body. The drugs in those cases are not assimilated into the person’s body, and once “retrieved or expelled,” the person may choose what to do with them and is in possession, the opinion stated.

Because state law defines possession as having control, once Foreman ingested the cocaine and it was assimilated into her body, she no longer had control over it, the Court concluded.

The Court noted it found the state’s position “rather troubling.” Under the prosecution’s theory, a person could be charged with the offense of possession of a controlled substance in every single Ohio county in which the person tests positive for the substance, regardless of where or when the person ingested it. The Court also noted that in some countries ingestion of small amounts of cocaine is legal, and that under the state’s position, even a person who legally ingested cocaine could be prosecuted in any Ohio county if cocaine was detected by a drug test.

Circumstances Do Not Prove Possession in Charging County, Court Holds
The county also claimed that circumstantial evidence was enough to prove Foreman possessed cocaine in Seneca County. The Court noted that circumstantial evidence can be used to prove venue, and the presence of drugs in Foreman’s system was some evidence of prior drug possession.

However, to prove venue under R.C. 2901.12(A), sufficient corroborating evidence is necessary to prove beyond a reasonable doubt that Foreman possessed the drug in Seneca County. There was no corroborating evidence, the Court ruled.  The fact that Foreman lived in the county while pregnant with J.B. does not establish that she possessed cocaine there, the opinion noted.

Foreman’s statements to the caseworker indicate that she did not use cocaine at home, and she did not tell the caseworker where she used the drugs. The prosecution also did not present any evidence concerning the amount of time that cocaine metabolites remain in a person’s system after ingesting it or establish Foreman’s whereabouts during such a timeframe, the opinion noted.

Because the state did not prove she possessed the drug in the county, the Court reversed the Third District’s opinion and vacated Foreman’s conviction.

2020-0866. State v. Foreman, Slip Opinion No. 2021-Ohio-3409.

View oral argument video of this case.

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