Morrill v. State

184 So. 3d 541, 2015 Fla. App. LEXIS 19101, 2015 WL 9287015
CourtDistrict Court of Appeal of Florida
DecidedDecember 22, 2015
DocketNo. 1D14-3346
StatusPublished
Cited by2 cases

This text of 184 So. 3d 541 (Morrill v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Morrill v. State, 184 So. 3d 541, 2015 Fla. App. LEXIS 19101, 2015 WL 9287015 (Fla. Ct. App. 2015).

Opinion

LEWIS, J.

Appellant, Jeffrey Shardon Morrill, challenges his judgment and sentence for trafficking in methamphetamine. Although Appellant raises three issues on appeal, we confine our opinion to the following issue: whether the trial court erred in admitting the National Precursor Log Exchange (“NPLEx”) report under the business records exception to the hearsay rule. We find no error in the admission of the NPLEx report, and we affirm on all issues raised.

Facts

On October 1, 2013, while investigating an unrelated matter, law enforcement officers discovered plastic bottles containing [543]*543methamphetamine and related paraphernalia in a. barn on Appellant’s property. Appellant was charged with trafficking in 200 grams or more of methamphetamine. Prior to the jury trial, the State filed a notice of intent to offer evidence of Appellant’s purchases and attempted purchases of ephedrine or related compounds, as compiled by the NPLEx, pursuant to the business records exception to the hearsay rule.

The State also filed a motion in limine, seeking to introduce the NPLEx report pursuant to the business records exception and section 893.1495, Florida Statutes. In its motion, the State explained that section 893.1495 requires retailers to limit the amount of ephedrine arid related compounds sold to an individual, requires purchasers of such products to present a valid identification, and requires retailers to report purchases and attempted purchases of such products to an electronic record-keeping system that is approved by the Florida Department of Law Enforcement (“FDLE”); that the FDLE has contracted with an electronic record-keeping system known as the NPLEx, which is administered by Appriss, Inc.; and that the records custodian of the NPLEx provided a report detailing Appellant’s purchases and attempted purchases of such products, which was accompanied by an affidavit that satisfied sections 90.803(6) and 90.902(11),'Florida Statutes, and thus qualified as a self-authenticating business, record.

The State submitted the affidavit of the records custodian of the NPLEx, James Acquisto, which stated as follows:

3. I am the custodian of the records of all pseudoephedrine/ephedrine sales logs for retailers that are maintained by Appriss Inc .... (the “Business Records Holder”);
4.. The computerized database . of pseudoephedrine/ephedrine sales logs by retailers are kept by the Business Records Holder -in the regular course of business, and it was. the regular course of that business for its employee or representative, with knowledge of the act, event, condition, or opinion recorded to make the record or to transmit information thereof to be included in such record.
5. Appriss, Inc. proyides a secured login website available to law enforcement called JusticeXehange; JusticeX-change enables law enforcement to have the capability of searching for and printing out pseudoephedrine/ephedrine sales logs and information maintained by the Business Records, as a- function of the [NPLEx],
6. This affidavit certifies that all pseudoephedrine/ephedrine records printed by law enforcement from the JusticeXehange website are exact representations of - • the pseudoephed-rine/ephedrine sales logs.

At the outset of Appellant’s jury trial, the trial court took the motion in limine under' advisement after hearing the parties’ arguments with regard to the timeliness of the evidence, which is not raised as ari issue on this appeal.' During trial, outside of the jury’s presence, the parties argued the admissibility of the NPLEx report. Appellant objected to the admissibility of the NPLEx report on the ground that it was hearsay and.did not fall within the business records exception because Mr. Acquisto could not certify that the businesses -that collected' the information did so.pursuant to, and in compliance with, the business' records exception. Noting that no Florida appellate court has addressed the. admissibility of the NPLEx reports, the trial court, relying in part on decisions of other jurisdictions, concluded [544]*544that the NPLEx report fell within the business records exception. In so ruling, the trial court took judicial notice of Chapter 893 of the Florida Statutes and the Florida Administrative Code and concluded that “the argument that in order for these to be admissible as an exception to hearsay, that each individual pharmacy would have to be brought before the court, is both impractical and implausible.”

Accordingly, the NPLEx report was admitted into evidence at trial through the testimony of Captain Raley, a law enforcement officer'. Captain Raley testified that state and federal laws require retailers to report to the NPLEx all' sales of products containing ephedrine or pseudoephedrine, which are essential ingredients in manufacturing methamphetamine; require purchasers of such products to be over the age of eighteen, to present a valid identification, and to sign for the purchase; and limit the amount of such products one may purchase in a given time-frame. Captain Raley further testified about how he accessed and retrieved from the NPLEx the report of Appellant’s purchases and attempted purchases of ephedrine or pseu-doephedrine products, testified that the printed report was a fair and accurate depiction of the information he viewed on the NPLEx website, and described what the report reflected. Appellant was ultimately convicted of the charged offense, and this appeal followed.

Analysis

A trial court’s ruling on the admissibility of evidence is reviewed for an abuse of discretion. Wilcox v. State, 143 So.3d 359, 373 (Fla.2014) (“Discretion is abused only when no reasonable person would take the view adopted by the trial court.”). However, a trial court’s discretion is limited by the'evidence code and case law, and its interpretation of those authorities is reviewed de novo, Leon v. State, 68 So.3d 351, 353 (Fla. 1st DCA 2011). Hearsay evidence is inadmissible, except as provided by statute. § 90.802, Fla. Stat. (2013). Records of regularly conducted business activity constitute a hearsay exception and “are not inadmissible as evidence, even though the declarant is available as a-witness.”. § 90.803(6), Fla. Stat. (2013).

In'this appeal, Appellant contends that the NPLEx report did not fall within the business records exception to the hearsay rule because Mr, Acquisto lacked personal knowledge. Florida’s business records exception provides as follows:

A memorandum, report, record, or data compilation, in any form, of acts, events, .conditions, opinion, or diagnosis, made at or near the time by, .or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or as shown by a certification or declaration that complies with, paragraph (c) and s.90.902(ll), unless the sources of information or other circumstances show lack of trustworthiness....

§ 90.803(6)(a), Fla. Stat. In turn, section 90.902 provides that “[e]xtrinsic evidence of authenticity as a condition precedent to admissibility is not required for:”

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Cite This Page — Counsel Stack

Bluebook (online)
184 So. 3d 541, 2015 Fla. App. LEXIS 19101, 2015 WL 9287015, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morrill-v-state-fladistctapp-2015.