Court of Appeals of Ohio, Fourth District, Scioto
A. Gambill, Portsmouth, Ohio, for Appellant.
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
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
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. 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
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.
Officer Morris searched the trash bags and found the
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.
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
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.
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
2) A grocery list of various items including sea salt and
3) A capped and empty 20-ounce Mello Yello bottle, containing
a capped syringe.
Officer Morris testified coffee filters are used to filter
liquid and leave behind crystallized methamphetamine.
Officer Morris further testified after looking through the
items, he began researching Jeannie Kinzer and Derrick
Tackett's names and addresses in OLEG,  and another
database, NPLEX. 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.
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
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.
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.
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
Appellant and the other individual left the store and got
into Kinzer's vehicle.
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
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. Based on the investigation, Officer Morris
filed indictments against both Appellant and Kinzer.
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
2) The Mello Yello bottle was the only DNA sample sent to
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
7) None of the documents in the trash bags could be directly
connected to Appellant.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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