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State v. Hudson

Court of Appeals of Ohio, Eleventh District, Trumbull

January 16, 2018

STATE OF OHIO, Plaintiff-Appellee,
v.
ANTHONY J. HUDSON, Defendant-Appellant.

         Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2011 CR 00073.

          Dennis 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).

          OPINION

          THOMAS R. WRIGHT, P.J.

         {¶1} 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.

         {¶2} 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, [1] 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 brother.

         {¶3} 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.

         {¶4} 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.

         {¶5} 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.

         {¶6} 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.

         {¶7} 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.

         {¶8} 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.

         {¶9} Appellant's brief asserts three assignments of error:

         {¶10} "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.)

         {¶11} "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. (T.p. 142-144.)

         {¶12} "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.)"

         {¶13} 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.

         {¶14} 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 894 (1990).

         {¶15} R.C. 2925.11(A) provides: "No person shall knowingly obtain, possess, or use a controlled substance or a controlled substance analog."

         {¶16} 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.)

         {¶17} 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.

         {¶18} Acurio stated the following on cross-examination:

         {¶19} "Q. [D]o you test other substances within that material to determine what other compounds are used ...


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