Court of Appeals of Ohio, Eleventh District, Trumbull
Appeal from the Trumbull County Court of Common Pleas, Case
No. 2011 CR 00073.
Watkins, Trumbull County Prosecutor, and LuWayne Annos,
Assistant Prosecutor, (For Plaintiff-Appellee).
Timothy Young, Ohio Public Defender, and Katherine R.
Ross-Kinzie, (For Defendant-Appellant).
R. WRIGHT, P.J.
Appellant, Anthony J. Hudson, appeals the trial court's
September 23, 2014 judgment entry sentencing him following a
jury trial and conviction for possession of cocaine in
violation of R.C. 2925.11(A) and (C)(4)(e). Anthony argues
that his conviction is contrary to law since the state failed
to establish the weight of the actual cocaine in the crack
cocaine in his possession. He also asserts there was
insufficient evidence establishing that he knowingly
possessed cocaine and thus his conviction is against the
manifest weight of the evidence. We affirm.
William Felt Jr. testified that he was a member of the TAG
task force and is an Ashtabula City Police Officer. Felt
explained that he initially drove a confidential source to a
home in Warren Township to purchase drugs. Thereafter, a
warrant was obtained,  and on November 13, 2006, the Trumbull,
Ashtabula, and Geauga County "TAG" task force
executed a search warrant at the home. The only person in the
home at the time was Michael Hudson, who is appellant's
Felt was the photographer and the task force's scribe
when the warrant was executed. He photographed and secured
documents with the name Michael Hudson on them and other
documents with Anthony Hudson's name on them.
Felt photographed a receipt found in the kitchen with
Michael's name on it with his address listed as the
address of the home being searched. Felt also secured a CD
case with white powder lines and residue on it. The officers
also found a scale with a white residue on it, baking soda, a
protein powder used for "cutting" cocaine, and a
frying pan with white crusty residue, suspected to be
cocaine, in the kitchen. Felt's photographs of these
items were introduced at trial. They also found a baggie
containing marijuana in the kitchen.
Felt confirmed that the first floor bedroom was padlocked
closed, and the officers had to use force to open it. TAG
task force members located documents in the locked bedroom
containing the name Michael Hudson as well as documents with
Anthony's name on them. They found a pawn receipt with
Michael's name on it in the padlocked bedroom along with
a residential lease agreement listing Anthony Hudson as the
lessee of this property. Felt also photographed an Ohio
identification card issued to Anthony and a Warren utility
receipt with Anthony's name on it in this locked bedroom.
The task force also found a large quantity of crack cocaine
on a television stand in the locked bedroom. This was the
only bedroom in the home that had the door padlocked closed.
Ten to fifteen minutes after the task force arrived at the
home, Major Thomas Stewart Sr. saw Anthony drive past the
home in a beige Cadillac. Stewart pulled Anthony over for
driving with a suspended license. The car was registered in
Michael's name. Stewart secured a small bag of marijuana
from Anthony and a set of keys, which contained the key to
the padlock for the locked bedroom. This was the only key the
officers located to the padlocked bedroom.
Detective Tackett was the lead detective in this case and was
also a TAG task force member. Tackett testified that it has
been increasingly difficult to secure drug traffickers'
homes and cars via forfeiture because there is a tendency for
offenders to put valuables in another's name to avoid
forfeiture. Tackett explained that Anthony was known to use
his brother's name as an alias.
Appellant's brief asserts three assignments of error:
"Anthony Hudson's first-degree felony conviction for
possession of 27 grams or more but less than 100 grams of
cocaine was not supported by sufficient evidence. His
first-degree felony conviction therefore violates his right
to due process. Fifth and Fourteenth Amendments to the U.S.
Constitution; Article I, Section 16 of the Ohio Constitution.
(T.p. 92-94, 186.)
"The trial court erred when it denied Mr. Hudson's
Crim.R. 29(A) motion for acquittal because the conviction for
possession of cocaine therefore violates his rights to due
process. Fifth and Fourteenth Amendments to the U.S.
Constitution; Article I, Section 16 of the Ohio Constitution.
"Anthony Hudson's conviction for possession of
cocaine is against the manifest weight of the evidence, in
violation of Mr. Hudson's right to due process of law
under the Fifth and Fourteenth Amendments to the United
States Constitution. (T.p. 186.)"
First, Anthony alleges that his first-degree felony
conviction was based on insufficient evidence. He argues that
the state must prove the quantity of the pure cocaine in the
crack cocaine in his possession in order to secure an
enhanced conviction. He alleges that the evidence at trial
only supports a conviction for a fifth-degree felony
possession in light of the state's failure to prove the
actual quantity of pure cocaine in his possession.
The state correctly points out that Anthony did not raise
this issue at trial either by way of objection or in his
motion for acquittal. Thus, we review this issue for plain
error. State v. Barnes, 94 Ohio St.3d 21, 27,
2002-Ohio-68, 759 N.E.2d 1240 (2002). Notice of plain error
should only occur under exceptional circumstances and in
order to prevent a miscarriage of justice. Id. at
paragraph three of the syllabus. "Plain error does not
exist unless it can be said that but for the error, the
outcome of the trial would clearly have been otherwise."
State v. Moreland, 50 Ohio St.3d 58, 62, 552 N.E.2d
R.C. 2925.11(A) provides: "No person shall knowingly
obtain, possess, or use a controlled substance or a
controlled substance analog."
R.C. 2925.11(C)(4)(e) states: "Whoever violates division
(A) of this section is guilty of one of the following: * * *
(4) If the drug involved in the violation is cocaine or a
compound, mixture, preparation, or substance containing
cocaine, whoever violates division (A) of this section
is guilty of possession of cocaine. The penalty for the
offense shall be determined as follows: * * * (e) If the
amount of the drug involved equals or exceeds
twenty-seven grams but is less than one hundred grams of
cocaine, possession of cocaine is a felony of the first
degree, and the court shall impose as a mandatory prison term
one of the prison terms prescribed for a felony of the first
degree." (Emphasis added.)
In Anthony's case, the state established via the
testimony of a forensic chemist, Jennifer Acurio, that crack
cocaine is a compound. She confirmed that the amount of the
drug in Anthony's possession, i.e., crack cocaine,
weighed more than 27 grams. Acurio confirmed that the crack
cocaine weighed 28.97 grams when she first weighed it in June
2014. Acurio's predecessor weighed and tested the same
substance, and it weighed a few grams more in December of
2006. She explained that crack cocaine is a moisture compound
and that it lost moisture weight during the eight years that
it was in storage.
Acurio stated the following on cross-examination:
"Q. [D]o you test other substances within that material
to determine what other compounds are used ...