State v. Phillips , 2017 Ohio 1204 ( 2017 )

[Cite as State v. Phillips, 2017-Ohio-1204.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2016-L-029
- vs - :
JODY T. PHILLIPS, :
Defendant-Appellant. :
Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2015 CR
000928.
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor, and Anna C. Kelley, Assistant
Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
Painesville, OH 44077 (For Plaintiff-Appellee).
Charles R. Grieshammer, Lake County Public Defender, and Aaron T. Baker, Assistant
Public Defender, 125 East Erie Street, Painesville, OH 44077 (For Defendant-
Appellant).
CYNTHIA WESTCOTT RICE, P.J.
{¶1} Appellant, Jody T. Phillips, appeals the judgment of conviction entered by
the Lake County Court of Common Pleas, after trial by jury, on one count of Possession
of Chemicals for the Manufacture of Drugs. At issue is whether the trial court properly
admitted a copy of certain records kept in the National Precursor Log Exchange
(“NPLEx”), a national database which tracks all purchases or attempted purchases of
pseudoephedrine and ephedrine from pharmacies, under the business records
exception to the hearsay rule. For the reasons below, we affirm the trial court’s
judgment.
{¶2} On November 3, 2015, appellant travelled from Ashtabula, Ohio to Mentor,
Ohio with three individuals, Alejandro Martinez, Joseph Michael Shaw, and David
Hettmansperger, in Martinez’s GMC Jimmy. The individuals first stopped at a
Walgreens where Shaw attempted to purchase Sudafed. The pharmacy, however,
refused to sell Shaw the drug because he was rejected by NPLEx. They then drove to
Target; after pulling in and parking in an area where employees usually park, Martinez,
popped the hood and exited the vehicle to check the engine. Hettmansperger exited
the vehicle and entered the store to purchase Sudafed. Shaw also left the vehicle and
entered a nearby Arby’s restaurant where he shot heroin in the bathroom.
{¶3} Patrolman Brian Vernick and Detective Matthew Alvord, each of the
Mentor Police Department, were in an unmarked vehicle in the Target parking lot,
working retail theft. The officers noticed a GMC Jimmy parked in what they perceived
as a strange location. They observed Shaw leave the vehicle and run to Arby’s. The
officers observed Hettmansperger leave Target and return to the vehicle after which
Hettmansperger walked over to the Arby’s, then return to the vehicle. Shaw returned
shortly thereafter. Martinez and appellant remained seated in the front of the vehicle
until Martinez popped the hood and exited the Jimmy.
{¶4} When Martinez exited, the officers walked toward the GMC Jimmy;
although they were in plain clothes, their badges were visible. Hettmansperger
approached Officer Vernick and asked to speak with him away from the vehicle, while
Detective Alvord addressed the remaining men. Hettmansperger explained he wanted
to speak with Office Vernick privately so the others did not hear him. Based on their
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conversation, the officer determined Hettmansperger, Shaw, and appellant were
attempting to purchase Sudafed or pseudoephedrine for the purpose of manufacturing
methamphetamine. Hettmansperger disclosed he had just made the purchase and the
box was in the vehicle.
{¶5} Meanwhile, Detective Alvord asked Shaw to exit the rear passenger seat
of the vehicle and spoke with him. Because Shaw appeared overly nervous, the
detective patted him down for weapons. While doing so, he located a syringe in Shaw’s
pocket. After detaining Shaw for the syringe, the detective located a denial-of-
pseudoephedrine-purchase receipt on Shaw’s person. The detective ultimately learned
Shaw had attempted to purchase pseudoephedrine at Walgreens in Mentor and the
men were at Target to purchase pseudoephedrine.
{¶6} The officers conferred with one another regarding Hettmansperger’s and
Shaw’s statements. Hettmansperger was patted down, but nothing of evidentiary value
was found on him. Appellant was then asked to exit the vehicle and confronted about
the box of pseudoephedrine in the vehicle. Appellant appeared standoffish and not
interested in talking with the officers. Appellant ultimately stated that pseudoephedrine
was “somewhere” in the car. Detective Alvord obtained permission from Martinez to
search the vehicle, who appeared upset when he learned about Shaw’s syringe and the
investigation relating to pseudoephedrine. During the search, the detective found a box
of Sudafed that was shoved under the front-passenger seat in a space near the seat-
adjustment rail which is adjacent to the center console. The box appeared slightly
damaged.
{¶7} Detective Alvord confronted appellant about the box; appellant denied
placing it in that location and claimed Hettmansperger must have placed the
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pseudoephedrine under the seat. The detective stated, however, that Hettmansperger
was seated in the rear driver’s-side compartment and was not observed entering the
front-passenger compartment.
{¶8} Appellant was indicted on one count of illegal assembly or possession of
chemicals for the manufacture of drugs, a felony of the third degree, in violation of R.C.
2925.041, and a forfeiture specification pursuant to R.C. 2941.1417 and R.C. 2981.04.
Appellant waived his right to be present at arraignment and a plea of “not guilty” was
entered on his behalf. The state filed a notice of complicity stating that, in addition to
offering evidence that appellant was the principal offender, it would also offer evidence
that appellant was a co-complicitor in aiding and abetting Shaw and/or Hettmansperger
in the charged offense.
{¶9} Appellant filed a waiver of right to a jury trial on the forfeiture specification
and a jury trial commenced on the “illegal assembly or possession” count. At trial,
Hettmansperger testified he, as a result of the underlying incident, had pleaded guilty to
attempted illegal assembly or possession of chemicals for the manufacture of drugs. As
a result of the plea, and in exchange for his testimony, the state agreed to recommend
community control rather than prison. As of the date of trial, Hettmansperger had not
been sentenced.
{¶10} Hettmansperger testified that he and Shaw are very close friends; he
stated he and Shaw had visited appellant the night before the incident and, during the
visit, appellant requested Shaw obtain a box of Sudafed. The next day, Shaw’s
purchase was rejected and, according to Hettmansperger, appellant advised him to
purchase the drug. Hettmansperger testified he purchased the Sudafed at Target
because appellant indicated he could get violent if he was unable to obtain a box. After
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buying the drug, Hettmansperger stated he delivered the box to appellant, who was
sitting in the front passenger seat of the Jimmy. Hettmansperger testified he observed
appellant shove the box under the seat.
{¶11} Hettmansperger testified appellant wanted Sudafed to make
methamphetamine (“meth”). When asked how he knew this, Hettmansperger answered
“[b]ecause he’s done it a couple times in the Economy Inn and stuff.” Hettmansperger
stated that he had not directly observed appellant making meth, but had helped
appellant clean up a plastic bottle which he knew was used in the manufacture of meth.
Hettmansperger testified appellant provided him with meth on the day of the purchase
and that he had purchased Sudafed for appellant maybe one other time.
{¶12} Shaw testified that he had entered pleas of guilty to one count of
attempted illegal assembly or possession of chemicals for the manufacture of drugs and
one count of possession of heroin. He stated that, as a result of the plea and in
exchange for his testimony, the state agreed to recommend an 18-month prison term.
Shaw had not been sentenced as of the date of the trial.
{¶13} Shaw’s version of the events was similar to Hettmansperger’s. He
testified that after he and Hettmansperger met with appellant on the previous night, it
was his understanding that he would purchase a box of Sudafed for appellant to use in
the manufacture of meth. He testified that, although he had not previously made such a
purchase for appellant, he had made similar purchases for other, unnamed individuals
“quite a few” times. Shaw testified he attempted to purchase Sudafed at Walgreens in
Mentor, but was rejected. He stated that the group subsequently drove to Target. Upon
arriving, he testified he went to an Arby’s restaurant across the street and used heroin in
the bathroom.
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{¶14} Magdalene Stimac, a pharmacist employed by the Walgreens in Mentor,
testified that Shaw had attempted to purchase pseudoephedrine in the store on
November 3, 2015, but was denied. The state introduced the denial receipt from the
attempted purchase in question. She testified regarding Walgreens’ procedure when a
customer attempts to purchase pseudoephedrine or ephedrine products. She stated a
customer is required to produce a form of identification. The ID is then scanned into the
NPLEx system, a data base which monitors the purchase of such drugs. NPLEx is
owned and operated by a private company, Appriss.
{¶15} Stimac testified that pseudoephedrine sales began being regulated in
2006; and prior to NPLEx, Walgreens utilized a tracking system called MethCheck; the
pharmacy has been using NPLEx since 2014. According to Stimac, the system tracks
how much pseudoephedrine is sold to individuals and will not permit a sale if a
customer attempts to purchase more than 3.6 grams in a single day or 9 grams in a
thirty-day period. If a customer attempts to purchase pseudoephedrine and he or she
has exceeded these limits, the purchase is blocked and recorded in real time in the
NPLEx system. Walgreens then issues the would-be customer a receipt with a
transaction identification number that the customer can utilize to see why he or she was
denied.
{¶16} The state also called Sergeant Brad Kemp, of the Lake County Narcotics
Agency, as an expert witness to testify that pseudoephedrine is a necessary chemical
for the manufacture of meth as well as his understanding of how the NPLEx system
keeps its records. With respect to the latter issue, the state submitted an uncertified
copy of NPLEx records relating to appellant’s purchase/attempted purchase of
pseudoephedrine at multiple pharmacies between January 2015 and October 2015.
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Overall, the record indicated appellant purchased/attempted to purchase
pseudoephedrine 31 times. Defense counsel objected to the introduction of this
purported record, arguing that the document was hearsay evidence, which the state did
not dispute. Defense counsel further asserted that the business records exception to
the hearsay rule was inapplicable because Sergeant Kemp was neither the custodian of
the records nor a “qualified witness.” Defense counsel maintained that Sergeant Kemp
merely uses the records for investigative purposes, but was not qualified to lay a
foundation regarding whether or how each individual pharmacy kept the NPLEx records
in the regular course of their business activities. And he did not testify to possessing
knowledge of how the record had been created by each pharmacy or how the records
are kept in the course of Appriss’ regularly conducted business activity.
{¶17} In response, the state argued that Stimac had previously testified to the
manner in which the NPLEx system functions; moreover, Sergeant Kemp testified that
he uses the system in the course of investigating meth crimes. According to the state,
this testimony was sufficient to lay a foundation triggering the business records
exception.
{¶18} The trial court agreed with the state and the record was submitted to
demonstrate that appellant, between January 2015 and October 2015, had purchased
or attempted to purchase pseudoephedrine, in varying quantities, on 31 separate
occasions. Sergeant Kemp testified that the records were the most important piece of
evidence in the case for formulating his opinion that appellant was engaged in the illegal
assembly or possession of chemicals for the manufacture of drugs. He stated the
frequency of the purchases indicated appellant’s intent to use pseudoephedrine for
meth production.
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{¶19} The jury ultimately returned a verdict of “guilty” on the “illegal assembly or
possession” count. Appellant was sentenced to a term of 36 months in prison and the
box of pseudoephedrine was forfeited to the Mentor Police Department. Appellant now
appeals assigning the following error:
{¶20} “The trial court erred to the prejudice of appellant by permitting admission
of NPLEx records into evidence, in violation of Evid.R. 801, 802, 803(6), and 805.”
{¶21} Appellant asserts the trial court erred in admitting the copy of NPLEx
records because Sergeant Kemp was neither a custodian of the records nor a “qualified
witness,” as required by Evid.R. 803(6). Appellant notes that Sergeant Kemp admitted
he simply accessed the records and printed them. Appellant underscores that the
NPLEx database is made up of information transmitted from private companies and
stored. Because Sergeant Kemp did not testify he had personal knowledge that these
companies kept the records in the course of a regularly conducted business activity, his
testimony was insufficient to lay an adequate foundation for the business records
exception to the hearsay rule.
{¶22} Evid.R. 803(6), the business records exception to the rule prohibiting the
admission of hearsay, provides:
{¶23} A memorandum, report, record, or data compilation, in any form, of
acts, events, or conditions, made at or near the time by, or from
information transmitted by, a person with knowledge, if kept in the
course of a regularly conducted business activity, and if it was the
regular practice of that business activity to make the memorandum,
report, record, or data compilation, all as shown by the testimony of
the custodian or other qualified witness or as provided by Rule
901(B)(10), unless the source of information or the method or
circumstances of preparation indicate lack of trustworthiness. The
term “business” as used in this paragraph includes business,
institution, association, profession, occupation, and calling of every
kind, whether or not conducted for profit.
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{¶24} Accordingly,
{¶25} “To qualify for admission under Rule 803(6), a business record
must manifest four essential elements: (i) the record must be one
regularly recorded in a regularly conducted activity; (ii) it must have
been entered by a person with knowledge of the act, event or
condition; (iii) it must have been recorded at or near the time of the
transaction; and (iv) a foundation must be laid by the ‘custodian’ of
the record or by some ‘other qualified witness.’” State v. Davis, 116
Ohio St. 3d 404, 2008-Ohio-2, ¶171, quoting Weissenberger, Ohio
Evidence Treatise 600, Section 803.73 (2007).
{¶26} “A ‘qualified witness’ for this purpose would be someone with ‘enough
familiarity with the record-keeping system of the business in question to explain how the
record came into existence in the ordinary course of business.’” State v. Hood, 135 Ohio
St.3d 137, 147, 2012-Ohio-6208, quoting 5 McLaughlin, Weinstein's Federal Evidence
Section 803.08[8][a] (2d Ed.2009).
{¶27} The state does not contest the hearsay nature of the NPLEx records;
instead, it maintains Ms. Stimic and Sergeant Kemp were “qualified witnesses” whose
combined testimony was sufficient to lay a foundation for their admission. In support,
the state cites the Fifth Appellate District’s opinion in State v. Coleman, 5th Dist.
Richland No. 14-CA-82, 2015-Ohio-3907.
{¶28} In Coleman, the state obtained NPLEx records and subsequently
subpoenaed business records of the appellant’s pseudoephedrine purchases from four
separate pharmacies. After obtaining the records, the state sought to admit these
records through the testimony of pharmacists employed by the pharmacies in question.
The Fifth District determined “each witness testified that the records were kept in the
ordinary course of business and each had enough familiarity with the record keeping to
explain how the records came in to existence in the ordinary course of business.
9
Accordingly, the reports were admissible under Evid.R. 803(6).” Coleman, supra, at
¶42.
{¶29} Coleman stands for the principle that employees of specific pharmacies
who are familiar with their pharmacies’ record-keeping system as it relates to NPLEx
data are “other qualified witnesses” who are competent to lay a foundation for the
admission of their respective pharmacy’s business records. The state, in Coleman, did
not seek to admit copies of general NPLEx records. In this case, however, the state
sought to admit a copy of the NPLEx records themselves (i.e., not records subpoenaed
from specific pharmacy records) through the testimony of a police officer who utilizes
the records for investigative purposes. Although Sergeant Kemp gave testimony of how
the NPLEx data system operates, when asked how the information is transmitted into
the system, he testified “I’m not the designer and I’m not very technologically advanced.
I know how to look.” Moreover, he is not an employee of Appriss, the company who
operates the system, and did not testify to any knowledge of the specific record-keeping
practices of that company.
{¶30} Further, the state did not subpoena specific records from the individual
pharmacies that appear on the record. Even though Stimic testified to how Walgreens
records are kept, she is a Walgreens employee, not an employee of Appriss. In this
regard, it is unclear, under Coleman, whether she could function as an “other qualified
witness” to lay an adequate foundation for the NPLEx records, which were introduced
during Sergeant Kemp’s testimony. Given these points, Coleman is fundamentally
distinguishable from the matter sub judice.
{¶31} Our research fails to reveal any case holding the testimony of a police
officer, who utilizes the NPLEx system for investigative purposes, unto itself, is sufficient
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to lay a foundation to admit a copy of the NPLEx system records under the business
records exception. Coleman affirmed the admission of business records of
pseudoephedrine purchases/denials that were subpoenaed from various pharmacies
through the testimony of employees of those pharmacies who were familiar with the
record-keeping practices of those businesses. In State v. McDonald, 5th Dist. Fairfield
No. 15-CA-45, 2016-Ohio-2699, the Fifth District determined that the testimony of a
police officer who used the system, in conjunction with three pharmacists from separate
pharmacies who identified the records from their respective stores as well as the
purchases and blocks contained in the records, was sufficient to lay a foundation for the
admission of the records.
{¶32} Here, although Ms. Stimic testified to Walgreens’ use of the NPLEx
system and identified Shaw’s individual-“blocked” receipt record from Walgreens, the
state did not seek to use Ms. Stimic to lay a foundation for any of the Walgreens
purchases/attempted purchases recorded in the NPLEx report introduced during
Sergeant Kemp’s testimony. Stimac’s testimony was sufficient to introduce Shaw’s
denial receipt; because, however, she was not asked to specifically lay a foundation for
appellant’s NPLEx record vis-à-vis his purchases or attempted purchases at Walgreens,
her testimony, under the circumstances, was inapplicable to that particular record.
{¶33} Further, Sergeant Kemp testified to how the information recorded in the
system is obtained, i.e., by swiping a prospective purchaser’s identification. He also
testified he knows how to look up information in the system and he testified to the
information that the system records, e.g., the time, date, salesperson, purchaser, and
quantity purchased. Although this testimony is useful for interpreting the record itself,
the sergeant’s testimony does not necessarily demonstrate “‘enough familiarity with the
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record-keeping system of the business in question [i.e., Apriss] to explain how the
record came into existence in the ordinary course of business.’” (Emphasis added.)
Hood, supra. We therefore hold, under the facts of this case, the state failed to lay an
adequate foundation to introduce the copy of the NPLEx record detailing appellant’s
purchases/attempted purchases between January 2015 and October of 2015.
{¶34} Under the circumstances of this case, however, any error in admitting the
report would be harmless beyond a reasonable doubt. First, Sergeant Kemp testified to
the process of manufacturing meth and underscored that pseudoephedrine is a
necessary ingredient in the process. The on-site officers testified to appellant’s
standoffish behavior, his admission that pseudoephedrine was in the vehicle, and the
location of the box under appellant’s seat.
{¶35} Moreover, even though Hettmansperger and Shaw entered guilty pleas in
exchange for the prosecution’s agreement to recommend a less severe sentence, which
was conditioned upon their cooperation and testimony, each co-defendant stated their
testimony was truthful and each had inherently consistent renditions of the events.
Hettmansperger testified he knew appellant had previously made meth and, in fact, had
given him meth earlier on the day in question. He testified he had purchased
pseudoephedrine for appellant one time previously. And, after purchasing the
pseudoephedrine for appellant, Hettmansperger testified he handed appellant the box.
He also testified he observed appellant shove it under his seat.
{¶36} Moreover, Shaw testified appellant wanted him to purchase
pseudoephedrine for him; Shaw further testified he knew appellant was going to use the
pseudoephedrine to make meth. Shaw stated he attempted to purchase
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pseudoephedrine at Walgreens for appellant on November 3, 2015, but was denied.
Ms. Stimic ultimately identified the denial receipt.
{¶37} Given the foregoing evidence, and despite the introduction of the NPLEx
report, there was sufficient, credible evidence for the jury to conclude appellant was
guilty of possessing chemicals for the manufacture of drugs beyond a reasonable doubt.
{¶38} Appellant’s assignment of error lacks merit.
{¶39} For the reasons discussed in this opinion, the judgment of the Lake
County Court of Common Pleas is affirmed.
DIANE V. GRENDELL, J., concurs in judgment only,
COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.
_____________________
COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.
{¶40} I respectfully dissent.
{¶41} The majority finds that the trial court properly admitted a copy of certain
records kept in the National Precursor Log Exchange (“NPLEx”), a national database
which tracks all purchases or attempted purchases of pseudoephedrine and ephedrine
from pharmacies, under the business records exception to the hearsay rule. For the
reasons stated, I disagree.
{¶42} “‘The trial court has broad discretion in the admission and exclusion of
evidence. State v. Hymore (1967), 9 Ohio St. 2d 122, 128 (* * *). An appellate court
shall not disturb evidentiary rulings absent an abuse of discretion. Id.’ (Parallel citation
omitted.) State v. Golding, 11th Dist. Lake No. 2008-L-049, 2009-Ohio-1437, ¶21.
13
Regarding this standard, we recall the term ‘abuse of discretion’ is one of art, connoting
judgment exercised by a court which neither comports with reason, nor the record.
State v. Ferranto, 112 Ohio St. 667, 676-678, * * * (1925). An abuse of discretion may
be found when the trial court ‘applies the wrong legal standard, misapplies the correct
legal standard, or relies on clearly erroneous findings of fact.’ Thomas v. Cleveland,
176 Ohio App. 3d 401, 2008-Ohio-1720, * * *, ¶15 (8th Dist.)” (Parallel citations
omitted.) State v. Vanhorn, 11th Dist. Ashtabula No. 2016-A-0025, 2017-Ohio-704,
¶22.
{¶43} “‘Hearsay’ is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Evid.R. 801(C).
{¶44} “Hearsay is not admissible except as otherwise provided by the
Constitution of the United States, by the Constitution of the State of Ohio, by statute
enacted by the General Assembly not in conflict with a rule of the Supreme Court of
Ohio, by these rules, or by other rules prescribed by the Supreme Court of Ohio.”
Evid.R. 802.
{¶45} Evid.R. 803 provides in part:
{¶46} “The following are not excluded by the hearsay rule, even though the
declarant is available as a witness:
{¶47} “* * *
{¶48} “(6) Records of regularly conducted activity. A memorandum, report,
record, or data compilation, in any form, of acts, events, or conditions, made at or near
the time by, or from information transmitted by, a person with knowledge, if kept in the
course of a regularly conducted business activity, and if it was the regular practice of
14
that business activity to make the memorandum, report, record, or data compilation, all
as shown by the testimony of the custodian or other qualified witness or as provided by
Rule 901(B)(10), unless the source of information or the method or circumstances of
preparation indicate lack of trustworthiness. The term ‘business’ as used in this
paragraph includes business, institution, association, profession, occupation, and calling
of every kind, whether or not conducted for profit.”
{¶49} Evid.R. 805 states: “Hearsay included within hearsay is not excluded
under the hearsay rule if each part of the combined statements conforms with an
exception to the hearsay rule provided in these rules.”
{¶50} Evid.R. 901 provides in part:
{¶51} “(B) Illustrations. By way of illustration only, and not by way of limitation,
the following are examples of authentication or identification conforming with the
requirements of this rule:
{¶52} “* * *
{¶53} “(10) Methods Provided by Statute or Rule. Any method of authentication
or identification provided by statute enacted by the General Assembly not in conflict with
a rule of the Supreme Court of Ohio or by other rules prescribed by the Supreme Court.”
{¶54} In this case, the state called Sergeant Brad Kemp, of the Lake County
Narcotics Agency, as an expert witness to testify regarding pseudoephedrine and the
record-keeping of NPLEx. NPLEx is an electronic record kept across 30 states. NPLEx
registers the identification information every time a person purchases over the counter
pseudoephedrine at pharmacies. A record is kept as to how much each person has
purchased and over what time frame. NPLEx is run by Appriss, a private company.
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{¶55} The trial court admitted, over repeated objection by the defense, the
NPLEx records through the testimony of Sergeant Kemp, reflecting 31 alleged
purchases of pseudoephedrine by appellant from January 2015 through October 2015.
Due to the admission of that information, Sergeant Kemp opined that the purchases
were for illicit purposes. However, Sergeant Kemp is a police officer. Sergeant Kemp
was not a custodian of the NPLEx records. Sergeant Kemp, through his own
admission, indicated he knew how to pull up information in the system and merely
printed it out. The admitted records were not certified from NPLEx, Appriss, or any
pharmacy.
{¶56} Contrary to the majority’s position, there is no “harmless error” in this case
as the state’s most powerful evidence came through Sergeant Kemp’s testimony and
the admitted NPLEx records. The admission of the NPLEx records through a police
officer who merely printed them out constitutes hearsay within hearsay. Again,
Sergeant Kemp is not a custodian of the NPLEx records, by his own testimony.
Sergeant Kemp is also not an “other qualified witness as provided by Rule 901(B)(10).”
See Evid.R. 803(6). Admitting the NPLEx records in this case was admitting hearsay
within hearsay. See Evid.R. 805.
{¶57} For the foregoing reasons, because this matter should be reversed and
remanded, I respectfully dissent.
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