[Cite as State v. Hudson, 2020-Ohio-1403.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      GREENE COUNTY

 STATE OF OHIO                                     :
                                                   :
         Plaintiff-Appellee                        :   Appellate Case No. 2019-CA-21
                                                   :
 v.                                                :   Trial Court Case No. 2018-CR-795
                                                   :
 ROBERT D. HUDSON IV                               :   (Criminal Appeal from
                                                   :   Common Pleas Court)
         Defendant-Appellant                       :
                                                   :

                                              ...........

                                             OPINION

                             Rendered on the 10th day of April, 2020.

                                              ...........

MARCY VONDERWELL, Atty. Reg. No. 0078311, Assistant Prosecuting Attorney,
Greene County Prosecutor’s Office, Appellate Division, 61 Greene Street, Suite 200,
Xenia, Ohio 45385
       Attorney for Plaintiff-Appellee

BRIAN A. MUENCHENBACH, 40 North Main Street, Suite 1900, Dayton, Ohio 45423
     Attorney for Defendant-Appellant

                                             .............

HALL, J.
                                                                                        -2-




      {¶ 1} Robert Hudson appeals from his conviction on charges of drug trafficking,

drug possession, tampering with evidence, endangering children, and possession of

criminal tools. Hudson’s counsel filed a brief under Anders v. California, 386 U.S. 738, 87

S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel asserts that he “finds no merit to any claim of

error sufficient to overturn Appellant’s conviction and sentence.” This Court advised

Hudson that counsel filed an Anders brief and invited him to file a pro se brief within 60

days, assigning any errors for review by this Court. Hudson did not file a brief. After

reviewing the record, we conclude that there are no issues with arguable merit to present

on appeal.

                            I. Facts and Procedural History

      {¶ 2} On September 20, 2018, in Xenia, Ohio, a confidential informant (CI) working

with law enforcement officers engaged in a controlled drug buy. Wearing a wire, the CI

parked at a gas station in downtown Xenia and waited for the seller. Hudson and another

man showed up, got into the CI’s vehicle, and sold her methamphetamine. The CI then

drove back to a prearranged meeting place and was debriefed by officers.

      {¶ 3} Several days later, police executed a search warrant at a residence in Xenia.

Inside, they found Hudson and the other man. A blue powder was found on Hudson’s

face and hands and throughout the residence. Also, officers found various products that

are used to manufacture methamphetamine. A firearm and nine-month-old child were

also found in the residence. Both men were arrested.

      {¶ 4} In October 2018, Hudson was indicted on ten counts: Count 1, aggravated

trafficking in drugs, in violation of R.C. 2925.03(A); Count 2, aggravated possession of
                                                                                          -3-


drugs, in violation of R.C. 2925.11(A); Count 3, illegal manufacture of drugs, in violation

of R.C. 2925.04(A); Count 4, tampering with evidence, in violation of R.C. 2921.12(A)(1);

Count 5, aggravated trafficking in drugs, in violation of R.C. 2925.03(A)(2); Count 6,

aggravated possession of drugs, in violation of R.C. 2925.11(A); Count 7, aggravated

possession of drugs, in violation of R.C. 2925.11(A); Count 8, aggravated trafficking in

drugs, in violation of R.C. 2925.03(A)(2); Count 9, endangering children, in violation of

R.C. 2919.22(B)(6); and Count 10, possession of criminal tools, in violation of R.C.

2923.24(A).

       {¶ 5} The case was tried to a jury. At the close of the state’s evidence, Hudson’s

trial counsel moved for a judgment of acquittal under Crim.R. 29 on Counts 1, 4, 5, and

9. On Count 1, counsel argued that the state had failed to prove that Hudson “knowingly

sold or offered to sell * * * Fentanyl,” because the drug was actually methamphetamine.

The trial court disagreed, concluding that the state merely had to prove that Hudson

knowingly sold a controlled substance. On Count 4, counsel argued that the state had

failed to prove that Hudson tampered with any evidence “with the purpose to impair its

value or availability as evidence.” (Tr. 432). The trial court agreed and granted the motion

for judgment of acquittal as to Count 4. Count 5 included a firearm specification, and trial

counsel argued that the state had failed to prove the operability of the firearm. The state

conceded the problem, and the trial court granted the motion for acquittal as to the firearm

specification. Lastly, on Count 9, counsel argued that there was no evidence that Hudson

stood in loco parentis to the child or that anyone identified the actual parent of the child.

The court denied the motion for judgment of acquittal as to Count 9, finding that there

“was a question as to whether the Defendant allowed the child to be there” and leaving it
                                                                                           -4-


to the jury to provide the answer. The jury found Hudson not guilty of Counts 3 and 8 but

guilty on the remainder of the counts that were submitted to it. In the end, Hudson was

convicted and sentenced on Counts 1, 2, 6, 7, and 9.

       {¶ 6} In January 2019, defense counsel filed a post-trial motion for judgment of

acquittal on Count 9 (endangering children). Counsel argued that Count 3 (illegal

manufacture of drugs) was the predicate offense for Count 9, so because Hudson was

acquitted on Count 3, he should also be acquitted on Count 9. The trial court denied the

motion, concluding that a conviction for illegal manufacture was not statutorily required to

sustain a conviction for endangering children. The court found that enough evidence was

presented   “establishing   several   components       involved   in   the   manufacture   of

methamphetamine, as well as methamphetamine residue and pills containing

methamphetamine on the premises,” to find Hudson guilty of endangering children.

       {¶ 7} Hudson appeals.

                                        II. Analysis

       {¶ 8} In the Anders brief, Hudson’s appellate counsel asserts two potential

assignments of error. The state filed a notice that it would not file a response.

               A. Potential claims of ineffective assistance of counsel

       {¶ 9} The first potential assignment alleges:

       WAS MR. HUDSON DENIED HIS SIXTH AMENDMENT RIGHT TO

       EFFECTIVE ASSISTANCE OF COUNSEL WHEN TRIAL COUNSEL

       FAILED TO PROPERLY MOVE FOR A JUDGMENT OF ACQUITTAL ON

       ALL COUNTS OF THE INDICTMENT AND FAILED TO FILE A MOTION

       TO SUPPRESS CHALLENGING THE SUFFICIENCY OF THE SEARCH
                                                                                      -5-


      WARRANT.

      {¶ 10} As to an ineffective-assistance claim, we have said:

             A claim of ineffective assistance of trial counsel requires both a

      showing that trial counsel’s representation fell below an objective standard

      of reasonableness, and that the defendant was prejudiced as a

      result. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d

      674 (1984). A reviewing court “must indulge in a strong presumption that

      counsel’s conduct falls within the wide range of reasonable professional

      assistance.” Id. at 689. The prejudice prong requires a finding that there is

      a reasonable probability that, but for counsel’s unprofessional errors, the

      result of the proceeding would have been different, with a reasonable

      probability being “a probability sufficient to undermine confidence in the

      outcome.” Id. at 694. See also State v. Bradley, 42 Ohio St.3d 136, 538

      N.E.2d 373 (1989).

State v. McGlown, 2d Dist. Montgomery No. 25434, 2013-Ohio-2762, ¶ 14.

      {¶ 11} Here, Hudson’s trial counsel filed a motion for judgment of acquittal on

Counts 1, 4, 5, and 9. Hudson’s appellate counsel suggests that trial counsel may have

been ineffective for not filing a motion for acquittal on the other counts. We are not

concerned with Counts 3 and 8, of course, because the jury found Hudson not guilty of

those offenses. So the question is whether counsel acted unreasonably by not moving

for acquittal on Counts 2, 6, or 7 (each charging aggravated possession of drugs) or on

Count 10 (possession of criminal tools).

      {¶ 12} Crim.R. 29 pertinently states that a court should enter a judgment of
                                                                                         -6-


acquittal for an offense “if the evidence is insufficient to sustain a conviction of such

offense.” “Because, when faced with a Crim.R. 29 motion for acquittal, a trial court must

view the evidence in a light most favorable to the state, ‘[f]ailure to move for

an acquittal under Crim.R. 29 is not ineffective assistance of counsel where the evidence

in the State's case demonstrates that reasonable minds can reach different conclusions

as to whether the elements of the charged offense[s] have been proved beyond a

reasonable doubt, and that such a motion would have been fruitless.’ ” State v. Winn, 173

Ohio App.3d 202, 2007-Ohio-4327, 877 N.E.2d 1020, ¶ 13 (2d Dist.), quoting State v.

Poindexter, 2d Dist. Montgomery No. 21036, 2007-Ohio-3461, ¶ 29. Here, given the

evidence in the record, we are convinced that reasonable minds could find that the state

proved all the elements of the offenses charged in Counts 2, 6, 7, and 10 to warrant

submitting them to the jury. Moving for acquittal on these counts would have been

fruitless.

        {¶ 13} Appellate counsel also suggests that trial counsel may have been

ineffective by not filing a motion to suppress based on the insufficiency of the search

warrant. “[T]rial counsel is allowed wide latitude in formulating trial strategy.” State v.

Olsen, 2d Dist. Clark No. 09-CA-110, 2011-Ohio-3420, ¶ 121. On this record, with a

controlled drug buy and the subsequent search warrant, we fail to see how a motion to

suppress on the basis of the warrant’s sufficiency would be successful. We cannot say

that trial counsel’s choice of strategy in this regard amounted to ineffective

assistance of counsel.

        {¶ 14} We agree with counsel for Hudson that the first potential assignment of error

lacks arguable merit.
                                                                                        -7-


                     B. Denial of motion for judgment of acquittal

       {¶ 15} The second potential assignment alleges:

       DID THE TRIAL COURT ERR WHEN IT DENIED MR. HUDSON’S POST-

       JUDGMENT MOTION FOR JUDGMENT OF ACQUITTAL RELATING TO

       COUNT 9.

       {¶ 16} Hudson filed a post-trial motion for judgment of acquittal on Count 9,

endangering children in violation of R.C. 2919.22(B)(6), arguing that he could not be

convicted for endangering children because he was found not guilty of Count 3, the

predicate offense, illegal manufacture of drugs in violation of R.C. 2925.04(A).

       {¶ 17} The trial court correctly concluded that a conviction for illegal manufacture

of drugs under R.C. 2925.04 was not required to sustain a conviction for endangering

children. The endangering statute, R.C. 2919.22(B)(6), specifically states a person may

not “[a]llow the child to be on the same parcel of real property and within one hundred

feet of * * * any act in violation of section 2925.04 or 2925.041 of the Revised Code when

the person knows that the act is occurring, whether or not any person is prosecuted for

or convicted of the violation of section 2925.04 or 2925.041 of the Revised Code that is

the basis of the violation of this division.” (Emphasis added.).

       {¶ 18} The court also concluded that there was evidence “establishing several

components involved in the manufacture of               methamphetamine, as well as

methamphetamine residue and pills containing methamphetamine on the premises” that

were a sufficient basis to find that Hudson knew about and participated in the manufacture

of methamphetamine and possessed chemicals necessary for its manufacture. We agree

that there was sufficient evidence that Hudson at least knew that methamphetamine was
                                                                                    -8-


being manufactured on the property. Consequently, we agree with appellate counsel that

the second potential assignment of error lacks arguable merit.

       {¶ 19} We have also conducted our independent review of the record, and we

agree with appellate counsel that there are no non-frivolous issues for review.

                                      III. Conclusion

       {¶ 20} Having found no arguable merit in Hudson’s Anders appeal and no other

potentially meritorious issues, the judgment of the trial court is affirmed.

                                      .............



DONOVAN, J. and WELBAUM, J., concur.


Copies sent to:

Marcy Vonderwell
Brian A. Muenchenbach
Robert D. Hudson IV
Hon. Stephen Wolaver
