State v. Kittle

[Cite as State v. Kittle, 2017-Ohio-7853.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 27977
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
DANA M. KITTLE COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE Nos. CR 2014-12-3623(D)
CR 2014-10-3259
DECISION AND JOURNAL ENTRY
Dated: September 27, 2017
HENSAL, Presiding Judge.
{¶1} Defendant-Appellant, Dana Kittle, appeals her conviction for illegal assembly or
possession of chemicals for the manufacture of drugs from the Summit County Court of
Common Pleas. This Court affirms.
I.
{¶2} This case involves the discovery of a methamphetamine lab and Ms. Kittle’s
involvement with same. Officer Lemonier from the Akron Police Department testified that he
and another officer conducted surveillance on an apartment where they believed illegal activity
was occurring. The officers observed Ms. Kittle and another woman, J.S., leave the apartment
and get into Ms. Kittle’s car, with J.S. taking the driver’s seat. Shortly thereafter, the officers
performed a traffic stop on the vehicle. During the stop, the officers discovered that J.S. did not
have a driver’s license and that she had an outstanding felony warrant. As a result, they placed
her under arrest and searched her, finding three bags of methamphetamine in her purse. The
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officers did not arrest or search Ms. Kittle, but did request that she empty her pockets, which
revealed no illegal substances.
{¶3} The officers then returned to the apartment and knocked on the door. After about
twenty minutes of waiting outside, one of the occupants allowed the officers inside. Upon
entering, Officer Lemonier immediately smelled the distinct odor associated with the production
of methamphetamine. The occupant then consented to a search of the apartment, which revealed
a number of items associated with the production of methamphetamine, as well as several small
bags containing the finished product.
{¶4} Through his investigation of the matter, including an interview with J.S., Officer
Lemonier discovered information that implicated Ms. Kittle. Another officer located Ms. Kittle
and brought her to the Akron Police Department for questioning. Officer Lemonier conducted
the interview, wherein Ms. Kittle admitted to buying pseudoephedrine for J.S. in exchange for
methamphetamine.
{¶5} A Grand Jury indicted Ms. Kittle on the following three counts: (1) illegal
assembly or possession of chemicals for the manufacture of drugs in violation of Revised Code
Section 2925.041(A); (2) illegal manufacture of drugs in violation of Section 2925.04(A); and
(3) aggravated possession of drugs in violation of 2925.11(A),(C)(1). The State dismissed the
latter two counts prior to trial.
{¶6} The case proceeded to a bench trial. The State presented testimony from one
witness: Officer Lemonier. The State also played portions of Officer Lemonier’s interview with
Ms. Kittle, and introduced records from The National Precursor Log Exchange (“NPLEX”),
which is a system that electronically tracks purchases of pseudoephedrine. Ms. Kittle did not
present any evidence.
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{¶7} The trial court found Ms. Kittle guilty, and subsequently sentenced her to five
years of imprisonment. She now appeals, raising three assignments of error for our review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED WHEN IT ADMITTED THE NPLEX RECORDS
INTO EVIDENCE AND ALLOWED A POLICE OFFICER WHO WAS NOT A
QUALIFIED WITNESS TO LAY THE FOUNDATION FOR INTRODUCING
THE NPLEX RECORDS INTO EVIDENCE, IN VIOLATION OF MS.
KITTLE’S CONSTITUTIONAL RIGHTS PURSUANT TO ARTICLE I,
SECTION 10, OF THE OHIO CONSTITUTION AND THE
CONFRONTATION CLAUSE OF THE SIXTH AMENDMENT OF THE U.S.
CONSTITUTION.
{¶8} In her first assignment of error, Ms. Kittle argues that the trial court erred by
allowing Officer Lemonier to lay the foundation for the NPLEX records because he was not the
custodian of those records, nor was he otherwise qualified to do so. Ms. Kittle asserts that a de
novo standard of review applies because the trial court’s error in this regard implicated her rights
under the Confrontation Clause.
{¶9} We will begin by addressing the standard of review. While Ms. Kittle’s
assignment of error suggests that she believes NPLEX records are testimonial in nature, thus
implicating the Confrontation Clause, she does not develop an argument in that regard. See
App.R. 16(A)(7). Rather, she cites Ohio Supreme Court precedent for the proposition that
business records are nontestimonial, and states: “[a]ssuming that the NPLEX records of the
pharmacy admitted into evidence in [this] case were truly nontestimonial in nature, the
foundation for their proper authentication as ‘business records’ under the meaning of Evid.R.
803(6) could not have been established by [Officer Lemonier].” Ms. Kittle does, however,
develop such an argument in her reply brief, arguing that NPLEX records are testimonial
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because the primary purpose of that system is to “assist in the interdiction of methamphetamine
creation and use[.]”
{¶10} As an initial matter, we note that “[a]ppellate courts generally will not consider a
new issue presented for the first time in a reply brief.” State v. Quarterman, 140 Ohio St.3d 464,
2014-Ohio-4034, ¶ 18. Notwithstanding, we are unpersuaded by Ms. Kittle’s argument that
NPLEX records are testimonial in nature, thus implicating the Confrontation Clause. This is
because “[t]estimonial statements are those created or given with the primary purpose of creating
an out-of-court substitute for trial testimony.” State v. Garcia, 9th Dist. Summit Nos. 27810,
27811, 2016-Ohio-4667, ¶ 58, quoting Ohio v. Clark, 135 S.Ct. 2173, 2183 (2015). The purpose
of the NPLEX system, however, is to track purchases of pseudoephedrine. See R.C. 3715.05;
State v. Coleman, 5th Dist. Richland No. 14-CA-82, 2015-Ohio-3907, ¶ 35 (“The purpose of the
NPLEx system is to monitor suspicious purchases of pseudoephedrine tablets.”). We cannot say
that NPLEX records are “created or given with the primary purpose of creating an out-of-court
substitute for trial testimony.” Garcia at id.; United States v. Collins, 799 F.3d 554, 586 (6th
Cir.2015) (holding that a similar “MethCheck” record was “not clearly testimonial in nature,”
and stating that “it is improbable that a pharmacy employee running a standard identification
check of a customer would have anticipated that the records of that transaction would later be
used against these particular defendants at trial.”). We, therefore, reject Ms. Kittle’s contentions
that her rights under the Confrontation Clause were implicated, and that a de novo standard of
review applies.
{¶11} We now turn to Ms. Kittle’s argument that the trial court erred by allowing
Officer Lemonier to lay the foundation for the NPLEX records. This Court reviews a trial
court’s decision to admit a business record into evidence for an abuse of discretion. State v.
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Baker, 9th Dist. Summit No. 21414, 2003-Ohio-4637, ¶ 9; Coleman at ¶ 35-42 (acknowledging
that a NPLEX record is a business record). “A trial court is deemed to abuse its discretion where
it admits a business record when the party lays an inadequate foundation to establish its
admissibility in accordance with Evid.R. 803(6).” Baker at ¶ 9.
{¶12} Evidence Rule 803(6) provides that a business record is excepted from the
hearsay rule if it is “kept in the course of a regularly conducted business activity, and if it was the
regular practice of that business activity to make the * * * record * * *, all as shown by the
testimony of the custodian or other qualified witness or as provided by Rule 901(B)(10)[.]” “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.’” (Citation omitted.) State v. Hood, 135 Ohio St.3d 137, 2012-
Ohio-6208, ¶ 40, quoting 5 McLaughlin, Weinstein’s Federal Evidence, Section 803.08[8][a] (2d
Ed.2009). Notably, “[t]he witness whose testimony establishes the foundation for a business
record need not have personal knowledge of the exact circumstances of preparation and
production of the document.” Baker at ¶ 11, citing Evid.R. 803(6). The witness, however, must
“demonstrate that he or she is sufficiently familiar with the operation of the business and with the
circumstances of the preparation, maintenance, and retrieval of the record in order to reasonably
testify on the basis of this knowledge that the record is what it purports to be, and was made in
the ordinary course of business.” Id., quoting Keeva J. Kekst Architects, Inc. v. George Dev.
Group, 8th Dist. Cuyahoga No. 70835, 1997 WL 253171, *5 (May 15, 1997).
{¶13} Here, Officer Lemonier testified that, through his training as a law enforcement
officer, he has personal knowledge as to how pharmacies use the NPLEX system to track
purchases of pseudoephedrine. He testified that he applied for – and was granted – a license to
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access the system, which requires a username and password. He indicated that he accesses the
NPLEX system every day, and that he receives real-time alerts for pseudoephedrine purchases.
{¶14} Regarding the process for electronically tracking purchases, Officer Lemonier
explained that a person attempting to buy pseudoephedrine must provide an ID, which is then
swiped. As soon as the ID is swiped, the information contained thereon is immediately
transmitted to the NPLEX database. Within a few minutes, more specific information is
transmitted, including the brand name, pill count, grams of pseudoephedrine contained in the
package, and whether the purchase was accepted or denied. He stated that a purchase will be
denied if the individual attempts to purchase more than nine grams of pseudoephedrine during a
30-day period.
{¶15} Officer Lemonier testified that he personally obtained the NPLEX record for Ms.
Kittle, which was introduced as an exhibit, and that the record is kept in the ordinary course of
business. To obtain the record, he entered Ms. Kittle’s name, date of birth, and driver’s license
number into the NPLEX system, which then generated a list of pseudoephedrine purchases
associated with that information. Officer Lemonier then testified as to the purchases of
pseudoephedrine reflected in the NPLEX record.
{¶16} While not every police officer may have familiarity with the NPLEX system or
the ability to explain how those records came into existence in the ordinary course of business,
the record reflects that Officer Lemonier did, in fact, have this knowledge. He, therefore, was a
“qualified witness” for purposes of Evidence Rule 803(6). Thus, we cannot say that the trial
court abused its discretion when it admitted the NPLEX records into evidence. Accordingly, Ms.
Kittle’s first assignment of error is overruled.
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ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED WHEN IT ABDICATED ITS DUTIES AS A
NEUTRAL AND IMPARTIAL FINDER OF FACT BY DIRECTING THE
PROSECUTION TO SUPPLEMENT ITS EVIDENCE AGAINST MS. KITTLE
MID-TRIAL, IN VIOLATION OF HER CONSTITUTIONAL RIGHTS TO A
FAIR TRIAL AND DUE PROCESS UNDER ARTICLE 1, SECTION 10 OF
THE OHIO CONSTITUTION AND THE FIFTH, SIXTH AND FOURTEENTH
AMENDMENTS TO THE U.S. CONSTITUTION.
{¶17} In her second assignment of error, Ms. Kittle argues that the trial court abdicated
its duties as a neutral and impartial finder of fact by directing the State to supplement its
evidence against her at trial. Similar to her first assignment of error, she contends that a de novo
standard of review applies, arguing that the trial court’s actions deprived her of a fair trial. We
disagree that a de novo standard of review applies, and otherwise find no merit in her argument.
{¶18} Evidence Rule 614(B) provides that “[t]he court may interrogate witnesses, in an
impartial manner, whether called by itself or by a party.” As this Court has stated, “‘[t]he
evident purpose of Evid. R. 614(B) is to prevent the trial judge, in questioning the witness, from
conveying to a jury the judge’s impression as to the credibility or lack of credibility of a
witness.’” State v. Grad, 9th Dist. Medina No. 10CA0003-M, 2012-Ohio-1385, ¶ 44, quoting
State v. Armstrong, 2d Dist. Montgomery No. 13498, 1993 WL 294834, *5 (Aug. 6, 1993).
When, as is the case here, the matter is proceeding as a bench trial, the trial judge is afforded
greater flexibility in questioning a witness because there is no risk of prejudicially influencing a
jury. Id. “In absence of any showing of bias, prejudice, or prodding of a witness to elicit
partisan testimony, it will be presumed that the trial court acted with impartiality [in propounding
to the witness questions from the bench] in attempting to ascertain a material fact or to develop
the truth.’” (Alterations sic.) State v. Baston, 85 Ohio St.3d 418, 426 (1999), quoting Jenkins v.
Clark, 7 Ohio App.3d 93, 98 (2d Dist.1982). “In reviewing any alleged prejudicial errors
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resulting from the court’s own interrogation of a witness, a reviewing court will examine the
questions in light of the entire record and, based upon the totality of the circumstances,
determine whether there has been a manifest abuse of discretion.” Grad at ¶ 43, quoting State v.
Hoover, 9th Dist. Medina No. 1549, 1987 WL 12247, *2 (June 3, 1987).
{¶19} Here, when cross-examining Officer Lemonier, Ms. Kittle’s counsel pointed out
that the NPLEX record did not contain certain information, such as the form of identification
used to purchase the pseudoephedrine. Officer Lemonier indicated that if he logged into the
NPLEX system and clicked on a certain field, that information would populate onto the record,
which he could then print. He further indicated that it was not his typical practice to print that
information, and that it had never been an issue in prior trials that he has been involved in.
{¶20} The trial court noted that it was “engaged in a matter to find the truth[,]” and did
not fault the State for failing to provide an expanded version of the NPLEX record. The trial
court then allowed Officer Lemonier to print an expanded version, which included the missing
information. Despite the trial court’s willingness to allow Ms. Kittle’s counsel a few days to
review the record and prepare accordingly, her counsel elected to proceed as scheduled and
chose not to cross-examine Officer Lemonier on the expanded record.
{¶21} Based upon the totality of the circumstances present in this case, we cannot say
that the trial court’s actions resulted in a manifest abuse of discretion. Id. at ¶ 43. Accordingly,
Ms. Kittle’s second assignment of error is overruled.
ASSIGNMENT OF ERROR III
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
AMENDED THE INDICTMENT ON THE MORNING OF TRIAL TO
EXPAND THE SINGLE DATE DETERMINED BY THE GRAND JURY TO
INCLUDE THE ENTIRE PREVIOUS WEEK, IN VIOLATION OF HER
CONSTITUTIONAL RIGHTS TO DUE PROCESS AND INDICTMENT BY A
GRAND JURY UNDER ARTICLE 1, SECTION 10 OF THE OHIO
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CONSTITUTION AND THE FIFTH, SIXTH, AND FOURTEENTH
AMENDMENTS OF THE U.S. CONSTITUTION.
{¶22} In her third assignment of error, Ms. Kittle argues that the trial court erred by
allowing the State to amend the timeframe of the indictment to include the previous week. We
disagree.
{¶23} “We review a trial court’s decision to allow the amendment of an indictment for
an abuse of discretion.” State v. Sauto, 9th Dist. Summit No. 26404, 2013-Ohio-1320, ¶ 10. An
abuse of discretion implies that the court’s attitude is unreasonable, arbitrary or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). To constitute reversible error, the
defendant must show that: (1) the trial court abused its discretion; and (2) the amendment
prejudiced her defense. State v. Dudukovich, 9th Dist. Lorain No. 05CA008729, 2006-Ohio-
1309, ¶ 16.
{¶24} Here, the indictment listed the date of the illegal-assembly-or-possession-of-
chemicals-for-the-manufacture-of-drugs offense as on or about December 2, 2014 (the date the
officers discovered the methamphetamine lab). On the morning of trial, the trial court allowed
the State to extend the timeframe of the indictment to include the preceding seven days. Despite
allowing the State to amend the indictment, the trial court ultimately determined that the
evidence indicated that Ms. Kittle purchased pseudoephedrine on November 30, 2014, that she
gave those pills to J.S. so that J.S. could make methamphetamine, and that methamphetamine
was made on December 2, 2014. The trial court’s journal entry indicates that it found Ms. Kittle
guilty based upon the December 2, 2014, date only. Thus, even assuming without deciding that
the trial court abused its discretion, Ms. Kittle cannot establish that she suffered prejudice and,
consequently, cannot establish reversible error. Id. at ¶ 16. Ms. Kittle’s third assignment of
error is overruled.
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III.
{¶25} Ms. Kittle’s assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
SCHAFER, J.
TEODOSIO, J.
CONCUR.
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APPEARANCES:
PAUL M. GRANT, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.