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State v. Phillips

Court of Appeals of Ohio, Eleventh District, Lake

March 31, 2017

STATE OF OHIO, Plaintiff-Appellee,
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, (For Plaintiff-Appellee).

          Charles R. Grieshammer, Lake County Public Defender, and Aaron T. Baker, Assistant Public Defender, (For Defendant-Appellant).



         {¶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 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 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 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.

          {¶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 ...

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