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State v. Levell

Court of Appeals of Ohio, Second District, Montgomery

December 15, 2017

STATE OF OHIO Plaintiff-Appellee
v.
EBON LEVELL Defendant-Appellant

         Trial Court Case No. 16-CR-369/2 (Criminal Appeal from Common Pleas Court)

          MATHIAS H. HECK, JR., by ALICE B. PETERS, Attorney for Plaintiff-Appellee

          SEAN BRINKMAN, Attorney for Defendant-Appellant

          OPINION

          HALL, P.J.

         {¶ 1} Ebon Levell appeals from his convictions for receiving stolen property. Finding no error, we affirm.

         I. Background

         {¶ 2} In April 2014, a car with an expired vehicle registration drove past Montgomery County Deputy Sheriff Matthew Wright while he was on patrol, so he initiated a traffic stop. The vehicle was driven by Levell. Deputy Wright explained to him the reason for the stop and asked Levell for his driver's license and proof of insurance. Levell admitted that he did not have a license. Because without a license Levell could not legally drive the car, Deputy Wright had Levell sit in the back of his police cruiser while he conducted an inventory search of the car in preparation for towing. In the car, Wright found boxes of prescription medication with labels indicating that they were prescribed to patients at Wood Glen Alzheimer's Community in Dayton. When Wright asked Levell about the medication, Levell told him that his wife, Tyreca Rippley, worked as a nurse at Wood Glen. Deputy Wright, believing that the medication was stolen from Wood Glen, then contacted his supervisor and requested assistance.

         {¶ 3} Deputy Wright wrote Levell citations for the traffic offenses and spoke to him about the medication.[1] Levell blamed his wife for stealing them from Wood Glen. He admitted that he knew she was stealing items from work and said that he had told her to stop. And Levell admitted that he had noticed the stolen items piling up in her car over time.

          {¶ 4} Deputy Tony Ball arrived to photograph the car and collect and package its contents. He found three boxes of blister pack Seroquel: an unopened box containing thirty 200 milligram tablets, an open box containing twelve 100 milligram tablets, and an open box containing twenty-three Seroquel 50 milligram tablets and three 100 milligram tablets. Each of the boxes of Seroquel had a label indicating that it was prescribed to H. K. at Wood Glen Alzheimer's Community. Deputy Ball also found a box containing twenty-one 1000 milligram tablets of Valtrex. The label on the box indicated that it was prescribed to N.D. at Wood Glen Alzheimer's Community. Deputy Ball packaged all of the boxes as evidence, turned them over to another officer for storage in the property room, and generated a lab submission sheet requesting that an analysis of the medication be done by the Miami Valley Regional Crime Lab.

         {¶ 5} Matthew Fox, a former employee of the Miami Valley Regional Crime Lab and an expert in drug chemistry and toxicology, analyzed the medication. He physically identified the tablets in the three boxes of Seroquel as containing quetiapine, a drug that may be dispensed only with a prescription. Quetiapine is marketed under the brand name Seroquel. Fox also physically identified the tablets in the box of Valtrex as containing valacyclovir, another drug that may be dispensed only with a prescription. Valacyclovir is marketed under the brand name Valtrex.

         {¶ 6} According to Angie Copley, the Director of Nursing at Wood Glen Alzheimer's Community, Wood Glen cares for patients with Alzheimer's and dementia. She said that although there is not a pharmacy on site, Wood Glen keeps patients' medications on site. Copley said that Wood Glen carefully monitors the medications and has a strict set of procedures in place that nurses must follow in administering medications. If a medication is not used, such as when a patient passes away, a nurse must count, package, and place the medication in a bin in the medication room. All Wood Glen nurses, said Copley, are trained on these procedures. She further testified that Tyreca Rippley, Levell's wife, was employed at Wood Glen from April 2010 to April 25, 2014, when she was terminated. Copley said that H.K. was a resident at Wood Glen in March and April 2014 and was prescribed Seroquel. And she said that N.D. was a patient during that same time and was prescribed Valtrex.

         {¶ 7} The Montgomery County Prosecutor's Office reviewed the case in 2014 shortly after Levell's arrest and decided not to seek charges. The same year, the medication was destroyed. After the prosecutor's review, the Department of Health opened its own investigation. In 2016, after the health department had completed its investigation, it passed on additional information to the prosecutor. Based on this new information, the prosecutor decided to seek charges.

         {¶ 8} In April 2016, Levell was indicted on two counts of receiving stolen property (dangerous drugs) in violation of R.C. 2913.51(A), each a fourth-degree felony. Levell waived his right to a jury trial, and the case proceeded to bench trial in December 2016. Before trial began, Levell's trial counsel orally moved for an independent analysis of the medication found in the car involved in the case and orally moved to dismiss the case because the medication had been destroyed. The trial court denied the motion for independent testing because the medication had been destroyed and could not be tested. The court also denied the motion to dismiss but held the matter open to conduct additional research. After the trial, counsel renewed the motion to dismiss based on the destruction of the medication. The court overruled the motion, finding that the medications were only potentially useful evidence and that they were not destroyed in bad faith. The trial court then found Levell guilty on both counts and sentenced him to community control for up to three years.

         {¶ 9} ...


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