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State did not prove quality of pure cocaine in possession case

Legal News Reporter

Published: March 6, 2017

A Trumbull County trial court must resentence a Warren Township man to the lowest level of a cocaine possession offense because the state failed to establish the weight of the drug excluding filler materials.

The 11th District Court of Appeals voted 3-0 to reverse and vacate Anthony J. Hudson’s first-degree felony conviction for possessing 27 grams or more but less than 100 grams of cocaine.

“Anthony alleges that his first-degree felony conviction was based on insufficient evidence,” appellate Judge Thomas R. Wright wrote in a recent opinion. “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. We agree.”

Court records indicate that the Trumbull, Ashtabula and Geauga County “TAG” task force executed a search warrant at the home on Nov. 13, 2006 after a confidential informant purchased drugs there. The only one home at the time was Hudson’s brother, Michael.

TAG officers found a scale with residue on it in the kitchen, along with suspected cocaine and marijuana.

After forcing open a padlocked bedroom, officers discovered a large quantity of crack cocaine on a TV stand.

Minutes later, Hudson was pulled over for driving with a suspended license. A patrolman took a small bag of marijuana from Hudson and a set of keys which included a key to the padlocked bedroom.

At trial, a forensic chemist testified that the amount of crack cocaine in Hudson’s possession weighed more than 27 grams but weighed 28.97 grams when she first weighed it in 2014. Another forensic chemist weighed and tested the same substance in 2006, and it weighed slightly more.

The chemists explained that the drug is a moisture compound, and that it lost moisture weight during the eight years in storage.

An officer testified that he found baking soda, which is used as a chemical additive to powder cocaine, at the home that day, as well as a protein additive used by weightlifters that is added to raw cocaine before it’s cooked into crack.

The officer added that the cutting agent allows the dealer to double the amount of cocaine to increase profits.

The defense argued the drugs belonged to Hudson’s brother, who owned the car he was arrested in as well as the key to the padlocked door. The appellate court found the state proved the appellant possessed the drugs.

On appeal, Hudson cited State v. Gonzales, 6th Dist. Wood No. WD-13-086, 2015-Ohio-461, 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. 292511(C)(4)(f) must be reversed and vacated.”

Gonzalez also held that possession of any amount of cocaine is a fifth-degree felony unless there is evidence that an offender has a certain amount of actual cocaine that does not have any filler or additives.

The Ohio Supreme Court recently affirmed Gonzalez due to the “unambiguous language of the statute.”

Appellate judges Timothy P. Cannon and Diane V. Grendell concurred with Judge Wright’s decision on the Hudson case, cited State v. Hudson, 2017-Ohio-615.

In a concurring opinion, Judge Grendell stated she agrees Hudson must be resentenced because the 11th District is bound by the Supreme Court’s holding in State v. Gonzalez.

However, Judge Grendell said the narrow interpretation of the law by the majority will make it difficult to sentence many guilty defendants with anything other than a fifth-degree felony.

“Further, it will be cumbersome for the criminal laboratories to change their current procedures for testing cocaine … “ Judge Grendell wrote. “… There is no basis, under the current statutory language, for a conclusion that a small difference in purity should result in a greater punishment. Drugs of any quality, with greater filler, available to a large number of users present a serious threat to society as a whole.

“Since the majority’s interpretation of the statute creates an unworkable standard which would result in less effective control of cocaine use, I agree with the analysis advanced by the dissenting justices in Gonzalez.”