State v. Phillips
2017 Ohio 1204
Ohio Ct. App.2017Background
- On Nov. 3, 2015, police stopped a GMC Jimmy in a Target parking lot; officers found a box of Sudafed (pseudoephedrine) shoved under the front-passenger seat. Defendant Jody Phillips was the front-passenger and admitted pseudoephedrine was "somewhere" in the car.
- Co-defendants Shaw and Hettmansperger (who pleaded guilty in exchange for recommended leniency) testified Phillips asked them to obtain Sudafed for making meth; Hettmansperger testified he saw Phillips shove the box under the seat.
- Walgreens pharmacist Magdalene Stimac testified Shaw was denied a pseudoephedrine purchase and identified Shaw’s denial receipt; she explained Walgreens’ use of NPLEx, a national database run by Appriss, that logs pseudoephedrine purchases/blocks.
- Sergeant Brad Kemp (narcotics) testified about NPLEx and printed an uncertified copy of defendant’s NPLEx history (31 purchases/attempts from Jan–Oct 2015); defense objected that admission violated Evid.R.803(6) (business records) and was hearsay.
- Trial court admitted the NPLEx printout through Sergeant Kemp; jury convicted Phillips of possession of chemicals for manufacture of drugs (third-degree felony). Phillips appealed, arguing the NPLEx record lacked proper foundation under Evid.R.803(6).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether uncertified NPLEx printout was admissible under Evid.R.803(6) | Stimac’s and Sgt. Kemp’s testimony together adequately laid foundation; Kemp’s use of system suffices | Kemp is not custodian or a qualified witness for Appriss/NPLEx; he merely printed records and lacks knowledge of Appriss’s recordkeeping | Admission of the NPLEx printout lacked adequate foundation under Evid.R.803(6) |
| Whether testimony of a police officer who uses NPLEx can authenticate NPLEx records | Kemp’s familiarity with what NPLEx records contain and how to access them authenticates the printout | A user of the system cannot explain how records are created or maintained by the private operator and so cannot be a qualified witness | Court held officer alone was not a sufficient qualified witness to admit the NPLEx report |
| Whether Walgreens pharmacist’s testimony could alone authenticate NPLEx records for defendant’s purchases | State contended Stimac’s testimony about Walgreens’ procedures supported admission | Stimac only authenticated Walgreens-specific denial receipt and was not asked to found the broader NPLEx report | Stimac’s testimony did not provide the necessary foundation for the broader NPLEx report admitted through Kemp |
| Whether any evidentiary error was harmless | State argued sufficient independent evidence (box found under seat; co-defendants’ consistent testimony; Kemp’s meth-making testimony) proved guilt beyond reasonable doubt | Defendant argued NPLEx was the state’s most powerful evidence and its improper admission was prejudicial | Any error admitting the NPLEx report was harmless beyond a reasonable doubt; conviction affirmed |
Key Cases Cited
- State v. Davis, 116 Ohio St.3d 404 (discusses four elements required for business-records exception)
- State v. Hood, 135 Ohio St.3d 137 (defines a "qualified witness" as one familiar enough with recordkeeping to explain how records came into existence)
- State v. Hymore, 9 Ohio St.2d 122 (trial court has broad discretion in admission/exclusion of evidence)
- State v. Ferranto, 112 Ohio St. (describes abuse-of-discretion standard)