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State v. Colley

Court of Appeals of Ohio, Fourth District, Scioto

May 26, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
ROBERT C. COLLEY, Defendant-Appellant.

          John A. Gambill, Portsmouth, Ohio, for Appellant.

          Mark E. Kuhn, Scioto County Prosecuting Attorney, and Jay Willis, Scioto County Assistant Prosecuting Attorney, Portsmouth, Ohio, for Appellee.

          DECISION AND JUDGMENT ENTRY

          MATTHEW W. McFARLAND, JUDGE

         {¶1} Robert C. Colley appeals his conviction in the Scioto County Court of Common Pleas after a jury found him guilty of one count of illegal assembly or possession of chemicals for the manufacture of drugs, a third-degree felony. On appeal, Colley contends: (1) the trial court erred in denying his motion for a directed verdict on the ground of improper venue; (2) the evidence was insufficient as a matter of law or, in the alternative, his conviction was against the manifest weight of the evidence, when the State presented no evidence of "intent to manufacture" methamphetamine; and (3) the trial court erred in permitting evidence of third parties' purchase of pseudoephedrine, unrelated to his case. Upon review, we find no merit to Appellant's arguments. As such the trial court did not err. Accordingly, we overrule Appellant's three assignments of error and affirm the judgment of the trial court.

         FACTS

         {¶2} On May 20, 2015, Robert C. Colley was indicted on one count of illegal assembly or possession of chemicals for the manufacture of drugs, a violation of R.C. 2925.041(A), and a felony of the third degree. The indictment occurred after an officer for the Ohio Department of Natural Resources ("ODNR") discovered two discarded bags of trash containing three boxes of pseudoephedrine product, an active ingredient used for the assembly of methamphetamine, along Big Run Road in the Shawnee State Forest. Items in both trash bags belonged to Jeannie Kinzer, Appellant's co-defendant and girlfriend at the time.[1] While none of the items were directly linked to Appellant, ODNR's investigation revealed that Appellant had purchased pseudoephedrine close in time to purchases made by Kinzer. Kinzer's trial testimony later linked some of the contents in the trash bags to Appellant.

         {¶3} Appellant proceeded to a jury trial on February 23, 2016. The State's case began with testimony from ODNR Officer Bryce Morris. Officer Morris testified regarding his background and training in recognition and awareness of clandestine labs for the production of methamphetamine. On October 12, 2014, Officer Morris was patrolling the Brush Creek State Forest area in Scioto County, investigating litter dump sites along the road, when he discovered two trash bags. This area of Scioto County is not far from the Pike County, Ohio, line. Officer Morris testified he was looking for items which could be connected to the production of methamphetamine.

         {¶4} Officer Morris searched the trash bags and found the following:

1) An envelope from the Ohio Department of Job and Family Services addressed to "Jeannie Kinzer" at "1926 McDermott Rushtown Road";
2) An empty package of electrical tape;
3) A Kroger magazine addressed to "Derrick Tackett" at the same address on McDermott-Rushtown Road;
4) An ice compress with the top right hand corner cut; and
5) Three boxes of Leader Allergy Relief D-24.

         {¶5} Officer Morris testified pseudoephedrine is an active ingredient in the manufacture of methamphetamine and the three boxes of Leader Allergy Relief D-24 were sold at Bartley's Discount Pharmacy in Waverly, located in Pike County, Ohio. The ingredients listed on the boxes include pseudoephedrine sulfate.

         {¶6} Officer Morris testified in the "one-pot" method of manufacture, electrical tape may be used to seal off a bottle to make it airtight. He also explained the product inside an ice compress, ammonium nitrate, is one of the ingredients for manufacture. The corner being cut on the compress was not the typical use of a compress, because the ammonium should not touch one's skin.

         {¶7} In the second trash bag, Officer Morris found the following:

1) Multiple empty pill blister packs from the three empty boxes of Leader Allergy Relief D-24, from Bartley's Pharmacy;
2) A grocery list of various items including sea salt and coffee filters;
3) A capped and empty 20-ounce Mello Yello bottle, containing a capped syringe.

         {¶8} Officer Morris testified coffee filters are used to filter liquid and leave behind crystallized methamphetamine.

         {¶9} Officer Morris further testified after looking through the items, he began researching Jeannie Kinzer and Derrick Tackett's names and addresses in OLEG, [2] and another database, NPLEX.[3] Officer Morris identified a summary record of Jeannie Kinzer's pseudoephedrine purchases, showing transaction dates and locations. Officer Morris also identified an NPLEX record and summary of Appellant's pseudoephedrine purchases at Bartley's Pharmacy and at a Walmart Pharmacy both in Waverly, Ohio.[4]

         {¶10} Andy Canterbury, the Asset Production Manager at the Waverly Walmart, testified about Walmart's video surveillance system. He testified there are approximately 180 cameras inside the store. The cameras record for approximately 93 days. Canterbury is able to view multiple cameras at a time, link them together, and watch an individual moving throughout the store.

         {¶11} Canterbury testified that on October 19, 2014, he assisted Officer Morris in reviewing several days of surveillance video. Canterbury identified a CD he burned for Officer Morris, showing Jeannie Kinzer and Appellant purchasing pseudoephedrine products. Canterbury also took still photographs from the video. Canterbury identified an overshot of a register, an electronic journal from the Waverly store, and the still photographs taken from the video surveillance.

         {¶12} On October 19, 2014, Officer Morris and another ODNR officer, Charles Carlson, went to Walmart with the NPLEX records to review the Walmart footage. They had enlarged BMV photos of Appellant and Jeanie Kinzer. On October 3rd, they observed a red Ford Explorer entering the parking lot and Kinzer entering the store. They were able to match the surveillance video with the database records of purchase. Kinzer purchased Sudafed. Also on that date, Appellant purchased Leader Allergy Relief D-24 at Bartley's.

         {¶13} The officers also reviewed the pharmacy counter camera and then back-tracked to find Appellant and Kinzer's vehicle in the parking lot. Kinzer then met with two other individuals - Appellant and a third subject. The group met at the pharmacy counter, then separated. Kinzer left the store and pulled a red Ford Explorer near the front of the store. Appellant was observed in the video checking out.[5] Appellant and the other individual left the store and got into Kinzer's vehicle.

         {¶14} Morris also testified that on August 23rd surveillance footage, Kinzer was at the front desk purchasing and they matched her record with NPLEX. They also viewed Appellant exiting the store, with Sudafed purchases recorded on that date.

         {¶15} As a result of viewing these tapes, Morris attempted to interview Kinzer at the address found in the trash bags. They were able to locate Derrick Tackett, her brother. The officers were unable to make contact with Kinzer. Meanwhile, the Mello Yello bottle with the syringe was tested for DNA by the Ohio Bureau of Criminal Identification and Investigation ("BCI"). The DNA was matched to Jeannie Kinzer.[6] Based on the investigation, Officer Morris filed indictments against both Appellant and Kinzer.

         {¶16} On cross-examination, Officer Morris testified he has investigated 3 methamphetamine cases. He admitted his duties are "spread pretty thin." He also acknowledged:

1) He was testifying from his report prepared 18 months earlier;
2) The Mello Yello bottle was the only DNA sample sent to BCI;
3) He did not order fingerprinting and did not take a statement from Kinzer;
4) Other entries in the NPLEX summary show Kinzer purchasing without Appellant's presence;
5) Appellant also purchased Claritin-D within the legal limits and on dates he was allowed to purchase;
6) Officer Morris never reviewed Appellant's medical history; and,
7) None of the documents in the trash bags could be directly connected to Appellant.

         {¶17} On redirect, Morris reiterated the significance of the NPLEX purchase records. Kinzer's summary demonstrates she made 16 purchases of pseudoephedrine products between April 1, 2014 and January 8, 2015. Appellant made 12 purchases in 2014. Five times in 2014, Appellant and Kinzer purchased on the same date.

         {¶18} The next witness, Thomas Kelley, the Pharmacy Manager at Waverly Walmart, testified pseudoephedrine is a stimulant decongestant, an over-the-counter product used for relief of cold symptoms. Although it is not an allergy medicine, it is sometimes combined with allergy medicine. Kelley testified pseudoephedrine is used illegally to reduce it from its current form into methamphetamine.

         {¶19} Kelley further testified due to the Control Methamphetamine Act, pharmacies must maintain records of pseudoephedrine sales. A person purchasing pseudoephedrine has to provide the purchaser's address and a current photo ID, without alteration. Walmart keeps its own database in the home office, in the normal course of business, and the records are shared with NPLEX.

         {¶20} Kelley testified he saw many individuals from Scioto County, Ohio, with no patient relationship to the Walmart Pharmacy, attempting to purchase pseudoephedrine. Specifically, he testified on a typical day, 30-40 people request pseudoephedrine and half, if not more, are residents from Scioto County. He has visually verified this fact by viewing driver's licenses.

         {¶21} Kelley identified purchase records for Jeannie Kinzer and for Appellant. Kinzer's purchase record showed Allergy and Congestion Relief purchased on August 23, 2014. Both items can be broken down to make methamphetamine. On October 3, 2014, Kinzer purchased Decongestant, 12 hour Max. Appellant's purchase record reflected purchases of drugs that can be converted to methamphetamine.

         {¶22} On cross examination, Kelley explained that decongestant is used to relieve nasal pressure. Under Ohio law, a person can buy 3.6 grams per day. Kelley acknowledged none of his records showed Appellant making illegal purchases.

         {¶23} Vanessa Rigsby, a manager at Bartley's Pharmacy, testified she trains other employees on pseudoephedrine sales and is aware of illegal uses. Rigsby also explained the procedure for pseudoephedrine sales. When a customer requests a product, Bartley's computer scans the driver's license and the product. Once that is done, the computer will advise if the sale can be completed, or if the purchaser has bought the limit anywhere else. The electronic records are stored in Bartley's computer, kept in the normal course of business, and shared with NPLEX. Rigsby identified an October 3, 2014 record of purchase of Leader Allergy Relief D-24 from Bartley's, sold to Appellant.

         {¶24} Officer Charles Carlson, an investigator for ODNR, testified that ODNR had recently been finding methamphetamine dumps along the roadways. He assisted in the cleanup of these dumps. Officer Carlson also testified as to the ingredients used and the process for breaking down pseudoephedrine and making it into methamphetamine.

         {¶25} On October 12, 2014, Officer Morris contacted Officer Carlson and showed him pictures of the trash collected. The totality of the ingredients discarded led Officer Carlson to believe a one-pot method had been discarded. Since there were no fingerprints, they tested DNA on the bottle. They also had receipts and tracked the purchasers through NPLEX. Carlson identified the State's exhibits.

         {¶26} On cross-examination, Officer Carlson testified he is one of six investigators for 25 counties. He testified he and Officer Morris linked Appellant to the bags through the video surveillance showing his purchases.

         {¶27} The State's last witness was Jeannie Kinzer. She testified she is 36 years old, an admitted drug addict for 11 years. She was currently in treatment. Kinzer also admitted she has a felony conviction for illegal manufacturing, for which she received a five-year sentence of probation, and two petty theft convictions from other counties. She was subpoenaed and did not want to testify against Appellant.

         {¶28} Kinzer met Appellant when they were teenagers. They reconnected in 2013. At the time, Appellant was in treatment. They formed a relationship after he completed treatment in 2013. Kinzer used methamphetamine, for the first time, with Appellant on New Year's Eve 2014.[7]

         {¶29} Kinzer testified the Big Run Road area was a solitary place, about three miles from where they lived. She and Appellant went there to be alone and to "shoot up" because it was private. Kinzer testified she used Suboxone or methamphetamine. Towards the end of 2014, she was using Suboxone and methamphetamine, with Appellant, daily. They administered it through syringes.

         {¶30} Kinzer testified she would purchase pseudoephedrine and then trade it for Suboxone, money, or methamphetamine. She always went to the Waverly Walmart. Sometimes Appellant went with her. He was also purchasing pseudoephedrine, but she did not see what he did with his boxes. Importantly, Kinzer testified Appellant "always" drove her vehicle because he did not like the way she drove.

         {¶31} Kinzer identified a photograph of her vehicle, herself, and Appellant on October 3, 2014. She also identified her signature for a purchase of a pseudoephedrine product. Kinzer also identified her Job and Family Services mail with the McDermott-Rushtown Road address, as well as the grocery list in her writing. She testified the sea salt and coffee filters on the list had nothing to do with her making methamphetamine. Kinzer denied throwing out the trash bags on Big Run. She also denied cutting the corner of the ice pack.

         {¶32} Kinzer identified her brother's name, Derrick Tackett, on the Kroger magazine. Kinzer testified her brother always gave her his Kroger coupons, but he had nothing to do with the items ...


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