[Cite as State v. Hudson, 2018-Ohio-133.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                    TRUMBULL COUNTY, OHIO


STATE OF OHIO,                                 :       OPINION

                 Plaintiff-Appellee,           :
                                                       CASE NO. 2014-T-0097
        - vs -                                 :

ANTHONY J. HUDSON,                             :

                 Defendant-Appellant.          :


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

Judgment: Affirmed.


Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481-1092 (For Plaintiff-Appellee).

Timothy Young, Ohio Public Defender, and Katherine R. Ross-Kinzie, Assistant Public
Defender, 250 East Broad Street, Suite 1400, Columbus, OH 43215-9308.
(For Defendant-Appellant).



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



1. This is the second time this case has been appealed. We initially reversed and remanded the trial
court’s decision to suppress the evidence secured via the search warrant because the good-faith
exception to the exclusionary rule applied. State v. Hudson, 11th Dist. Trumbull No. 2013-T-0001, 2013-
Ohio-4967, ¶25.


                                                  2
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.




                                            3
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




                                              4
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:




                                               5
      {¶19} “Q. [D]o you test other substances within that material to determine what

other compounds are used to help create crack cocaine?

      {¶20} “A. No, we don’t.

      {¶21} “* **

      {¶22} “A. * * * Once cocaine is present, I don’t identify anything else that is in

the mixture.

      {¶23} “* * *

      {¶24} “Q. So you wouldn’t be able to determine, would you, if there’s muscle

feeder in that crack cocaine?

      {¶25} “A. No * * *.

      {¶26} “Q. * * * could you tell if there was Baking Soda in crack cocaine?

      {¶27} “A. No, I could not.

      {¶28} “Q. * * * why not?

      {¶29} “A. The instrumentation that we use, we don’t identify other compounds

that are present. And based on the law, we don’t do any kind of quantification to show

how much the cocaine is present.

      {¶30} “Q. * * * It’s all just considered cocaine?

      {¶31} “A. Correct.

      {¶32} “Q. So if you, if your or somebody wanted to, you could still that down

further and see how much is cocaine and how much is extraneous matters?

      {¶33} “A. It could be quantified.

      {¶34} “* * *




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       {¶35} “Q. So we will never know how much actual cocaine is in that package;

correct?

       {¶36} “A. That’s correct.”

       {¶37} Felt’s testimony confirmed that he found baking soda at the home that day

and explained that it is used “as a chemical additive to powder cocaine. And that is how

crack is made.” Felt also explained the significance of the protein additive used by

weightlifters found in the home, stating “[i]t’s added to raw cocaine before it’s cooked

into crack. And what it does is increases the volume of the original product. It’s a

cutting agent.   You essentially turn a specific quantity of powder cocaine, add a

corresponding amount of a cutting agent, now you’ve doubled the amount of cocaine

which you then can turn more profit * * *.”

       {¶38} Anthony asserts that a plain reading of R.C. 2925.11(C)(4)(e) requires the

state to establish the weight of the pure cocaine in the crack cocaine in his possession

via a scientific analysis of the entire substance. He directs our attention to State v.

Gonzales, 6th Dist. Wood No. WD-13-086, 2015-Ohio-461, ¶47, that held: “the state, in

prosecuting cocaine offenses under R.C. 2925.11(C)(4)(a) through (f), must prove that

the weight of the actual cocaine possessed by the defendant met the statutory

threshold. * * * Because the state failed to introduce evidence as to the purity or weight

of the cocaine in this case, we find that appellant’s penalty enhancement under R.C.

2925.11(C)(4)(f) must be reversed and vacated.” (Emphasis sic.)

       {¶39} After certifying a conflict on this precise issue, the Supreme Court affirmed

the Gonzales decision, holding: “Given the unambiguous language of the statute, we

* * * hold that in prosecuting cocaine-possession offenses under R.C. 2925.11(C)(4)(b)




                                              7
through (f) involving mixed substances, the state must prove that the weight of the

actual cocaine, excluding the weight of any filler materials, meets the statutory

threshold.” State v. Gonzales, 150 Ohio St.3d. 261, 2016-Ohio-8319, 81 N.E.3d 405,

¶22, “Gonzales I”.     Thereafter, however, the Supreme Court granted the state’s

application for reconsideration in Gonzales I, vacated its decision, and concluded the

opposite in “Gonzales II.” State v. Gonzales, 150 Ohio St.3d 276, 2017-Ohio-777, 81

N.E.3d 419, ¶18.

      {¶40} Like Gonzales I, Gonzales II holds that R.C. 2925.11(C)(4)(e) is

unambiguous. But unlike Gonzales I, Gonzales II concludes the statute unambiguously

includes the weight of the actual cocaine along with any filler materials to determine the

appropriate penalty under the statute. Id. at ¶12-14.

      {¶41} As a court of inferior jurisdiction, we must follow the Ohio Supreme Court’s

decisions.   State v. Ryan, 10th Dist. Franklin No. 08AP-481, 2009-Ohio-3235, ¶48;

Rollins v. State, 8th Dist. Cuyahoga Nos. 96192-96194, 2011-Ohio-3264, ¶22. Thus,

consistent with Gonzales II, Anthony’s first assigned error lacks merit and is overruled.

      {¶42} Anthony’s second assignment of error challenges the trial court’s denial of

his motion for an acquittal under Crim.R. 29(A).        An appellate court reviews a trial

court's decision on a motion for acquittal under the same standard governing a

challenge on insufficient evidence grounds. State v. Clements, 12th Dist. Butler No.

CA2009-11-277, 2010-Ohio-4801, ¶17. We must examine the evidence and determine

whether such evidence, if believed, would support a conviction. State v. Wilson, 12th

Dist. Warren No. CA2006-01-007, 2007-Ohio-2298. "The relevant inquiry is whether,

after viewing the evidence in a light most favorable to the prosecution, any rational trier




                                            8
of fact could have found the essential elements of the crime proven beyond a

reasonable doubt." State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),

paragraph two of the syllabus, superseded on other grounds.

      {¶43} Anthony takes issue with the state’s evidence that he knowingly

possessed cocaine. He claims that the concept of knowingly requires proof that the

drugs did not belong to his brother and that the state had to prove that he had exclusive

access to the drugs. He also asserts that there was insufficient evidence to establish

that he “constructively possessed” the drugs because constructive possession requires

proof that he was not only able to exercise dominion and control over the drugs, but

also that he was conscious of the presence of the drugs.

      {¶44} R.C. 2925.11(A) provides: “No person shall knowingly obtain, possess, or

use a controlled substance or a controlled substance analog.”

      {¶45} R.C. 2901.22(B) states in part: “[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.”

      {¶46} “Possession” is defined as “having control over a thing or substance, but

may not be inferred solely from mere access to the thing or substance through

ownership or occupation of the premises upon which the thing or substance is found.”

R.C. 2925.01(K). Possession of drugs may be actual or constructive, and constructive

possession may be established “entirely by circumstantial evidence.” State v. Fogle,

11th Dist. Portage No. 2008-P-0009, 2009-Ohio-1005, ¶28; State v. Swain, 6th Dist.

Erie Nos. E-11-087, E-11-088, 2013-Ohio-5900, ¶40-41.




                                           9
      {¶47} “Constructive possession exists when an individual is able to exercise

dominion or control over an item, even if the individual does not have the item within his

immediate physical possession.” State v. Kingsland, 177 Ohio App.3d 655, 2008-Ohio-

4148, 895 N.E.2d 633, ¶13. “However, the mere fact that [drugs are] located within

premises under one’s control does not, of itself, constitute constructive possession. It

must also be shown that the person was conscious of the presence of the object.

Without this element one could be found to be in illegal possession of [drugs]

surreptitiously placed in or upon his property by another.” (Emphasis added.) (Citations

omitted.) State v. Hankerson, 70 Ohio St.2d 87, 91, 434 N.E.2d 1362 (1982).

      {¶48} Further, absent an admission by a defendant or direct testimony by

another with knowledge, the defendant’s knowledge of the presence of illegal drugs

where the crime charged is possession of drugs often must be proven via circumstantial

evidence as well. Id. at 92. “Circumstantial evidence, however, must do more than

raise a strong presumption of guilt in order to support a conviction. In order to prove an

essential element of a crime the circumstantial evidence must be irreconcilable with any

reasonable theory of the accused’s innocence.” Id.

      {¶49} The determinative issue before us is whether the evidence presented at

Anthony’s trial is sufficient to support a finding beyond a reasonable doubt that he had

knowledge that the crack cocaine was in his home’s locked bedroom, and as a result he

had constructive possession of cocaine. Id. at 93.

      {¶50} As Anthony contends, it is undisputed that both Michael and Anthony

Hudson resided in the Warren Township home. However, the state’s theory in pursuing

Anthony for possession of the crack cocaine was based on the fact that he had personal




                                           10
items in the locked bedroom that contained the drugs and that he had actual, physical

possession of the key to the padlocked door. The state’s evidence was circumstantial.

      {¶51} The defense argued at trial that the drugs belonged to Michael in light of

the fact that he owned the car and the set of keys that had the key to the padlocked

bedroom door.    However, there was nothing evidencing that the keys belonged to

Michael.

      {¶52} Anthony directs our attention to State v. Swalley, 11th Dist. Ashtabula No.

2010-A-0008, 2011-Ohio-2092, which held in part that Swalley’s conviction for drug

possession was not supported by sufficient evidence. However, after an exhaustive

analysis of similar cases involving possession of drugs in a shared residency, Swalley

held that the evidence before it was insufficient since the drugs were found in common

areas of the dwelling that were occupied by and completely accessible to the other

residents of the home. Furthermore, Swalley established that he was out of town for a

week before the search and at the time of the search. Thus, we held in the absence of

forensic evidence linking the drugs to the defendant, there was insufficient evidence to

establish that he had possession of the drugs. Id. at ¶73.

      {¶53} In State v. Jackson, 11th Dist. Ashtabula No. 2002-A-0039, 2003-Ohio-

5863, however, we upheld Jackson’s possession conviction where the drugs were

found in a sock drawer in a bedroom even though there were four adults in the home at

the time of the search. The search also revealed correspondence and bills addressed

to Jackson in this unlocked bedroom. Jackson testified in her defense and denied that

the drugs belonged to her, but she admitted to occasionally sleeping in this bedroom in




                                           11
her three-bedroom home. Id. at ¶31-32. Thus, we found that the state established via

sufficient evidence that she had constructive possession of the drugs. Id. at ¶36-37.

       {¶54} Like Jackson, there was no evidence presented that Anthony had cocaine

in his physical possession. Regardless, one could reasonably deduce that Anthony had

constructive possession of the cocaine locked in the bedroom in his home. Anthony

rented the Warren Township residence, and as a result of his possession of the key to

the room, he had access and control over the locked bedroom that contained the drugs.

Further, the crack cocaine was sitting in plain view on a television stand in the bedroom,

and the police found personal items belonging to Anthony and documents bearing his

name in this bedroom. Accordingly, upon viewing the evidence in a light most favorable

to the prosecution, a rational trier of fact could have found beyond a reasonable doubt

that Anthony was in constructive possession of the cocaine.

       {¶55} Additionally, the evidence of drug use in the common areas of the home,

including cocaine residue on a CD case, in a frying pan, and on a scale, bolsters that

Anthony was fully conscious of the drugs in his home.         State v. Molina, 8th Dist.

Cuyahoga No. 83731, 2004-Ohio-4347, ¶27 (finding defendant was aware of drug

trafficking based on the “casual and pervasive presence of heroin and tools of

trafficking” in her apartment.)

       {¶56} Further, there was nothing reflecting that Michael had access to the locked

bedroom at the time of the search. The testimony established that the door was locked

when the police arrived and the only key they located was in Anthony’s possession.

       {¶57} Finally, even assuming that Michael also had access to the drugs in the

locked bedroom as appellant contends, this does not vitiate Anthony’s conviction since




                                           12
the brothers could have had joint possession and control of the drugs. State v. Collier,

8th Dist. Cuyahoga No. 78960, 2001 Ohio App. LEXIS 4663, *10 (October 18, 2001),

citing State v. Smith, 8th Dist. Cuyahoga No. 78277, 2001 Ohio App. LEXIS 2314 (May

24, 2001) (holding that “[j]oint possession * * * exists when two or more persons

together have the ability to control an object, exclusive of others.”)    The trial court

provided the jury instruction on joint possession, stating “[t]wo or more persons may

have possession if together they have the ability to control it exclusive of others.”

Accordingly, Anthony’s second assignment of error lacks merit.

      {¶58} Anthony’s third and final argument contends his conviction is against the

manifest weight of the evidence. In reviewing matters based on the manifest weight of

the evidence, an appellate court sits as the thirteenth juror and reviews the evidence to

assess whether “the jury clearly lost its way and created such a manifest miscarriage of

justice that the conviction must be reversed * * *.” State v. Thompkins, 78 Ohio St.3d

380, 387, 678 N.E.2d 541.

      {¶59} “No judgment resulting from a trial by jury shall be reversed on the weight

of the evidence except by the concurrence of all three judges hearing the cause.” Ohio

Constitution Article IV, Section 3(B)(3); Eastley v. Volkman, 132 Ohio St.3d 328, 2012-

Ohio-2179, 972 N.E.2d 517.      We cannot reverse a conviction where the state has

presented evidence allowing a reasonable trier of fact to conclude all of the elements of

the offense were established beyond a reasonable doubt. Thompkins, supra. And an

appellate court presumes that the trier of fact “is best able to view the witnesses and

observe their demeanor, gestures, and voice inflections, and use these observations in




                                           13
weighing the credibility of proffered testimony.” Seasons Coal Co. v. Cleveland, 10

Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984).

      {¶60} Anthony alleges that the evidence was conflicting as to whether the drugs

were his or his brother’s. However, there was no evidence that Michael had the means

to access the locked bedroom at the time of the search or the exclusive possession or

control of the drugs in the bedroom. The jury heard the evidence and believed the

state’s version of the facts. Thus, we cannot find that it lost its way. Anthony’s third

assignment of error lacks merit and is overruled.

      {¶61} Based on the foregoing, the judgment of the Trumbull County Court of

Common Pleas is affirmed.



TIMOTHY P. CANNON, J., concurs,

DIANE V. GRENDELL, J., concurs in judgment only with a Concurring Opinion.


                                ____________________



DIANE V. GRENDELL, J., concurs in judgment only with a Concurring Opinion.

      {¶62} I concur in the majority’s analysis on the second and third assignments of

error, since the weight and sufficiency of the evidence supported the determination that

Hudson was in possession of cocaine. I write separately as to the first assignment of

error, however, to emphasize that the Ohio Supreme Court’s holding in Gonzales II, 150

Ohio St.3d 276, 2017-Ohio-777, 81 N.E.3d 419, is entirely consistent with the clear

statutory mandate that the offense level for cocaine possession must be determined by

weighing both the cocaine and filler materials.



                                           14
       {¶63} The majority, in applying Gonzales II, concludes that “[a]s a court of

inferior jurisdiction, we must follow the Ohio Supreme Court’s decisions.” Supra at ¶ 40.

While this appears to express doubt about the propriety of such decision, there is no

question that the Supreme Court’s reading and application of the unambiguous statutory

language was correct.     Further, to fairly address the issue raised on appeal, it is

necessary to include more than just a cursory reference to the analysis contained within

Gonzales II.

       {¶64} The pertinent statute, R.C. 2925.11(C)(4), states: “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.”

(Emphasis added.) Under this language, a mixture or compound is also “cocaine” and

must be weighed as such.          The statutory language was properly held to be

unambiguous and to “clearly encompass” the whole compound or preparation of

cocaine. Gonzales II at ¶ 9.

       {¶65} As the Court held: “Giving effect to the statute as a whole and to the intent

of the legislature as expressed in the words of the statute, we conclude that the

applicable offense level for cocaine possession under R.C. 2925.11(C)(4) is determined

by the total weight of the drug involved, including any fillers that are part of the usable

drug.” Id. at ¶ 18.

       {¶66} Any holding to the contrary would be impractical and inconsistent with

legislative intent. “Concluding otherwise would require us to insert the words ‘actual’ or

‘pure’ to describe the cocaine that is intended to be penalized by the statute. If the

General Assembly had been concerned about purity, rather than total weight, it would




                                            15
have said so.” Id. at ¶ 13. There is no basis, under the current statutory language, for a

conclusion that a small difference in purity should result in a disparate punishment.

Drugs of any quality, with greater filler, available to a larger number of users present a

serious threat to society as a whole.

      {¶67} In addition, the opposing interpretation would make it difficult to sentence

many defendants guilty of possession of cocaine with anything greater than a fifth-

degree felony, which is contrary to the statutory scheme laid out by the General

Assembly and detrimental to society as a whole. It would further be cumbersome for

criminal laboratories to change their current procedures for testing cocaine, as was

established in the Ohio Attorney General’s amicus brief in Gonzales, causing an

additional burden to the community.

      {¶68} For the foregoing reasons, the Gonzales II decision must be applied not

only because we are bound by the Supreme Court’s precedent but also due to its

consistency with the clear statutory language of R.C. 2925.11(C)(4). Thus, I concur in

judgment only with the majority’s opinion.




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