[Cite as State v. Coleman, 2015-Ohio-3907.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. Sheila G. Farmer, J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : -vs- : : Case No. 14-CA-82 RAY COLEMAN, JR. : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Richland County Court of Common Pleas, Case No. 2014CR 0436D
JUDGMENT: Affirmed in part; Reversed in part; Remanded
DATE OF JUDGMENT ENTRY: September 22, 2015
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
DANIEL ROGERS ROBERT GOLDBERGER Assistant Prosecuting Attorney 10 West Newlon Place 38 South Park Street Mansfield, OH 44902 Mansfield, OH 44902 Richland County, Case No. 14-CA-82 2
Gwin, P.J.
{¶1} Appellant Ray Coleman, Jr. ["Coleman"] appeals his convictions and
sentences after a jury trial in the Richland County Court of Common Pleas on one count
of Illegal Manufacture of Methamphetamine in the Vicinity of a Juvenile, a first degree
felony pursuant to R.C. 2925.04(A) & (C)(3)(b); one count of Illegal Assembly or
Possession of Chemicals for Manufacturing of Methamphetamine in the Vicinity of a
Juvenile, a second degree felony pursuant to R.C. 2925.041 (A) & (C)(2); and one count
of Aggravated Possession of Drugs, a fifth degree felony pursuant to R.C. 2925.11(A) &
(C)(1)(a).
Facts and Procedural History
{¶2} In April 2014, Julie Starcher ("Julie") signed a lease with Joseph Perry and
moved into a trailer at 352 1/2 Boston Avenue, Mansfield, Ohio with Coleman, her
boyfriend of six years. Between April 10, 2014 and May 19, 2014, Coleman purchased
medicine containing pseudoephedrine-the primary ingredient in methamphetamine, on
six (6) different occasions from four (4) different pharmacies,
1. On April 10, 2014, Coleman went to the CVS pharmacy at the
corner of W. 4th St. and Trimble Ave. in Mansfield and purchased
medicine containing 2.4 grams of pseudoephedrine;
2. On April 13, 2014, Coleman went to the same CVS pharmacy at
the corner of W. 4th St. and Trimble Ave. and purchased medicine
containing 2.4 grams of pseudoephedrine; Richland County, Case No. 14-CA-82 3
3. On April 15, 2014, Coleman went to the Wal-Mart pharmacy in
Ontario and purchased medicine containing 2.4 grams of
pseudoephedrine;
4. On May 16, 2014, Coleman went to Kroger pharmacy in Mansfield
and purchased medicine containing 2.4 grams of pseudoephedrine;
5. On May 18, 2014, Coleman returned to Wal-Mart pharmacy in
pseudoephedrine; and
6. On May 19, 2014, Coleman went to Wal-Mart pharmacy in Mansfield
and purchased medicine containing 2.4 grams of pseudoephedrine.
{¶3} On April 20, 2014, Julie's grandson Au.A. and granddaughter Al.A. moved
into the home In early May 2014, Julie had Joseph Perry amend the lease for the home
to include Coleman's name.
{¶4} In mid-May 2014, Charlie Ledbetter ("Charlie") and Deanna Hebert
("Deanna") moved in with Julie. Around this time period, Julie asked Au.A and Al.A's
mother, Toni Starcher ("Toni"), to take the children back with her to Sandusky. Julie also
amended her lease with Joseph Perry again by removing Coleman's name and having
the locks changed. However, Coleman continued to live with Julie.
{¶5} In late May 2014, Julie asked Charlie and Deanna to move out. On
approximately June 3, 2014, Au.A., Al.A. and Toni all moved in with Julie and Coleman.
{¶6} On June 7, 2014, during the late morning or early afternoon, Charlie came
to the residence and asked if he could take Al.A and Au.A. Toni, along with her sister Richland County, Case No. 14-CA-82 4
Sydney Starcher ("Sydney"), gave Charlie permission to take Au.A, but did not let Al.A.
go because Al.A. was suffering from a severe eczema outbreak.
{¶7} At approximately 3:00 p.m., Mansfield Police received a domestic
disturbance call involving a man and a woman and a potential methamphetamine lab at
the residence.
{¶8} Officers Shane Gearhart and Michael Garn were the first to respond. Upon
arrival, Officers Gearhart and Garn encountered Julie, Toni and Sydney standing in
front of the residence with Al.A. sitting in a car seat on the front steps. Officers Gearhart
and Garn interviewed the three women and determined that there was an argument
involving two of the women, but no men were involved and there were no injuries. Julie
also told Officer Garn about the methamphetamine lab in the bedroom she shared with
Coleman and that Coleman was still inside the home.
{¶9} Officers Gearhart and Garn approached the front door, knocked on the
door and ordered Coleman to come out. Coleman complied. Coleman claimed that
Charlie had been cooking meth in that room.
{¶10} Sergeant Donald Rhinehart and Lieutenant Newberry arrived on scene.
After consulting with Officer Garn, Sergeant Rhinehart called Sergeant Petrycki of the
Mansfield Police Department Drug Task Force. Sergeant Petrycki told Sergeant
Rhinehart to briefly enter the residence to confirm the presence of materials or
equipment consistent with a methamphetamine lab, then get out and contact Detective
Perry Wheeler, a member of the Metrich Drug Task Force and an expert on
methamphetamine manufacturing. Richland County, Case No. 14-CA-82 5
{¶11} Sergeant Rhinehart and Lieutenant Newberry entered the home through
the side door, which was the closest entrance to the bedroom containing the
methamphetamine lab. Upon entering the bedroom, Sergeant Rhinehart discovered
several items commonly used in the production of methamphetamine, including
camping fuel, drain cleaner and a coffee grinder covered in white powder. Sergeant
Rhinehart quickly exited the bedroom and called Detective Wheeler. Sergeant
Rhinehart remained at the scene until Officer James Reed arrived.
{¶12} Approximately 30 minutes after Officers Gearhart and Garn had arrived,
Julie received a text message from Charlie saying he had Al.A. and would only return
him in exchange for money or pseudoephedrine. Julie told Officer Gearhart about the
text message. Officer Gearhart and Julie went to Charlie's new address on Koogle Rd.
to investigate.
{¶13} During this time, an ambulance was called for Al.A., as officers were
concerned that her rash was actually chemical burns caused by exposure to toxic gases
emanating from the methamphetamine lab. However, doctors examined AI.A. and
determined that her rash was caused by a severe outbreak of eczema.
{¶14} Officer James Reed arrived at approximately 4:00 pm and maintained the
scene until Detective Wheeler arrived. Upon his arrival, Detective Wheeler put on his
protective body suit, gloves, boots and breathing mask and entered the bedroom.
Detective Wheeler discovered the following products and equipment commonly used in
the production of methamphetamine inside the bedroom,
1. Coleman and butane fuel,
2. Drain cleaner fluid containing sulfuric acid, Richland County, Case No. 14-CA-82 6
3. Drain cleaner powder containing lye,
4. Muriatic acid,
5. cold packs-including one with the ammonium nitrate crystals
removed,
6. Morton's table salt,
7. Stripped lithium,
8. Various glass containers including multiple jars covered in white
powder residue,
9. A rubber glove,
10. Coffee filters,
11. A coffee grinder covered in white powder residue
12. A plastic filtering system,
13. Plastic bags,
14. Two "one pot shake and bake" pots,
15. A coffee can containing white powder residue and a straw,
16. Rubber hosing, and
17. A razor blade covered in white powder residue
{¶15} Detective Wheeler sent some items found in the bedroom, specifically a
skull-shaped glass jar and a vial-both covered in white powder residue, to the Mansfield
Police Department's Forensics Lab ("MPD lab") for testing. Testing by Anthony
Tombasco from the MPD lab revealed that the white powder residue on the glass jar
and vial was methamphetamine. Richland County, Case No. 14-CA-82 7
{¶16} After submitting the relevant items to the MPD lab, Detective Wheeler
entered Coleman's information into NPLEx, a database that tracks purchases of
pseudoephedrine. Using the information obtained from NPLEx, the Richland County
Prosecutor's Office subpoenaed the records of the four pharmacies where Coleman
purchased pseudoephedrine between April 10 and May 19, 2014.
{¶17} Coleman was indicted on four counts. Count 1 charged Coleman with
Illegal Manufacture of Methamphetamine in the Vicinity of a Juvenile, a first degree
felony pursuant to R.C. 2925.04(A) & (C)(3)(b). Count 2 charged Coleman with Illegal
Assembly or Possession of Chemicals for Manufacturing of Methamphetamine in the
Vicinity of a Juvenile, a second degree felony pursuant to R.C. 2925.041 (A) & (C)(2).
Count 3 charged Coleman with Endangering Children, based on his allowing a child to
be within 100 feet of the activities charged in Counts 1 and 2, a third degree felony
pursuant to R.C. 2919.22(B)(6). Count 4 charged Coleman with Aggravated Possession
of Drugs, a fifth degree felony pursuant to R.C. 2925.11(A) & (C)(1)(a).
{¶18} Coleman filed a motion to suppress on July 28, 2014. The Court held an
evidentiary hearing and issued an Order overruling the motion on September 22, 2014.
{¶19} The jury trial commenced on October 9, 2014 and finished the next day.
Coleman was found guilty on Counts 1, 2, 4, and not guilty on Count 3. The state
conceded that Counts 1 and 4 were allied offenses of similar import and elected to have
the court impose a sentence on Count 1. On October 13, 2014, the Court sentenced
Coleman to seven years mandatory on Count 1 and three years mandatory on Count 2
to be served concurrently. Richland County, Case No. 14-CA-82 8
Assignments of Error
{¶20} Coleman raises three assignments of error,
{¶21} "I. APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO
COUNSEL UNDER THE SIXTH AMENDMENT BY THE FAILURE OF HIS ATTORNEY
TO EFFECTIVELY REPRESENT HIM.
{¶22} "II. APPELLANT WAS IMPROPERLY CONVICTED OF ALLIED
OFFENSES OF SIMILAR IMPORT.
{¶23} "III. THE TRIAL COURT IMPROPERLY LIMITED THE CASE FOR THE
DEFENSE."
I.
{¶24} In his first assignment of error, Coleman argues that he received
ineffective assistance of counsel because his trial counsel failed to object to the
admission of the pharmacy records and the testimony concerning those records. The
exhibits in question, numbers 6, 7 and 8, were records from CVS, Wal-Mart and Kroger
pharmacies respectively.
{¶25} A claim of ineffective assistance of counsel requires a two-prong analysis.
The first inquiry is whether counsel's performance fell below an objective standard of
reasonable representation involving a substantial violation of any of defense counsel's
essential duties to appellant. The second prong is whether the appellant was prejudiced
by counsel's ineffectiveness. Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122
L.Ed.2d 180(1993); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373(1989). Richland County, Case No. 14-CA-82 9
{¶26} In order to warrant a finding that trial counsel was ineffective, the petitioner
must meet both the deficient performance and prejudice prongs of Strickland and
Bradley. Knowles v. Mirzayance, 556 U.S. 111, 129 S.Ct. 1411, 1419, 173 L.Ed.2d
251(2009).
{¶27} Recently, the United States Supreme Court discussed the prejudice prong
of the Strickland test,
With respect to prejudice, a challenger must demonstrate “a
reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.” Id., at 694, 104 S.Ct. 2052. It is not enough “to show that the
errors had some conceivable effect on the outcome of the proceeding.”
Id., at 693, 104 S.Ct. 2052. Counsel’s errors must be “so serious as to
deprive the defendant of a fair trial, a trial whose result is reliable.” Id., at
687, 104 S.Ct. 2052.
“Surmounting Strickland’s high bar is never an easy task.” Padilla v.
Kentucky, 559 U.S. ––––, ––––, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284
(2010). An ineffective-assistance claim can function as a way to escape
rules of waiver and forfeiture and raise issues not presented at trial, and
so the Strickland standard must be applied with scrupulous care, lest
“intrusive post-trial inquiry” threaten the integrity of the very adversary
process the right to counsel is meant to serve. Strickland, 466 U.S., at
689–690, 104 S.Ct. 2052. Even under de novo review, the standard for Richland County, Case No. 14-CA-82 10
judging counsel’s representation is a most deferential one. Unlike a later
reviewing court, the attorney observed the relevant proceedings, knew of
materials outside the record, and interacted with the client, with opposing
counsel, and with the judge. It is “all too tempting” to “second-guess
counsel’s assistance after conviction or adverse sentence.” Id., at 689,
104 S.Ct. 2052; see also Bell v. Cone, 535 U.S. 685, 702, 122 S.Ct. 1843,
152 L.Ed.2d 914 (2002); Lockhart v. Fretwell, 506 U.S. 364, 372, 113
S.Ct. 838, 122 L.Ed.2d 180 (1993). The question is whether an attorney’s
representation amounted to incompetence under “prevailing professional
norms,” not whether it deviated from best practices or most common
custom. Strickland, 466 U.S., at 690, 104 S.Ct. 2052.
Harrington v. Richter, __U.S.__, 131 S.Ct. 770, 777-778, 178 L.Ed.2d 624(2011).
{¶28} “‘The failure to object to error, alone, is not enough to sustain a claim of
ineffective assistance of counsel.’ ” State v. Fears, 86 Ohio St.3d 329, 347, 715 N.E.2d
136(1999), quoting State v. Holloway (1988), 38 Ohio St.3d 239, 244, 527 N.E.2d
831(1988). A defendant must also show that he was materially prejudiced by the failure
to object. Holloway, 38 Ohio St.3d at 244, 527 N.E.2d 831. Accord, State v. Hale, 119
Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶233.
{¶29} Coleman argues that the records from four different pharmacies detailing
his six pseudoephedrine purchases between April 10, 2014 and May 19, 2014 were
inadmissible and therefore his trial counsel's failure to object to their admission and the
resulting testimony violated an essential duty to Coleman. Richland County, Case No. 14-CA-82 11
{¶30} Coleman argues that the state failed to lay a proper foundation under
Evid.R. 803(6) Records of Regularly Conducted Activity,
The following are not excluded by the hearsay rule, even though
the declarant is available as a witness:
***
(6) Records of regularly conducted activity. A memorandum,
report, record, or data compilation, in any form, of acts, events, or
conditions, 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 the memorandum, report, record, or data compilation, all as
shown by the testimony of the custodian or other qualified witness or as
provided by Rule 901(B)(10), unless the source of information or the
method or circumstances of preparation indicate lack of trustworthiness.
The term “business” as used in this paragraph includes business,
institution, association, profession, occupation, and calling of every kind,
whether or not conducted for profit.
{¶31} However, the trial court heard testimony from Detective Wheeler stating
that pharmacies are legally obligated to record every pseudoephedrine sale in the
national NPLEx database.
{¶32} R.C. 3715.05 Requirements of retailers or terminal distributors providing
pseudoephedrine or ephedrine to public; inspection of prescriptions and records by
government officials and employees defines the NPLEx data base as follows, Richland County, Case No. 14-CA-82 12
(6) “National precursor log exchange” or “exchange” means the
electronic system for tracking sales of pseudoephedrine products and
ephedrine products on a national basis that is administered by the national
association of drug diversion investigators or a successor organization.
{¶33} The statute imposes a duty upon retail sellers of pseudoephedrine or
ephedrine products,
(B) A retailer or terminal distributor of dangerous drugs that sells,
offers to sell, holds for sale, delivers, or otherwise provides a
pseudoephedrine product or ephedrine product to the public shall do all of
the following:
(1) Segregate pseudoephedrine products or ephedrine products
from other merchandise so that no member of the public may procure or
purchase such products without the direct assistance of a pharmacist or
other authorized employee of the retailer or terminal distributor of
dangerous drugs;
(2) With regard to each time a pseudoephedrine product or
ephedrine product is sold or otherwise provided without a valid
prescription:
(a) Determine, by examination of a valid proof of age, that the
purchaser or recipient is at least eighteen years of age;
(b) Using any information available, including information from the
national precursor log exchange if the information is accessible, make a
reasonable attempt to ensure that no individual purchases or receives an Richland County, Case No. 14-CA-82 13
amount of pseudoephedrine product or ephedrine product that is greater
than either of the following:
(i) Three and six tenths grams within a period of a single day;
(ii) Nine grams within a period of thirty consecutive days.
The maximum amounts specified in divisions (B)(2)(b)(i) and (ii) of
this section apply to the total amount of base pseudoephedrine or base
ephedrine in the pseudoephedrine product or ephedrine product,
respectively. The maximum amounts do not apply to the product’s overall
weight.
(3) Maintain a log book of pseudoephedrine product or ephedrine
product purchases, in accordance with section 3715.051 of the Revised
Code;
(4) If required to comply with Section 3715.052 of the Revised
Code, submit the information specified in divisions (A)(1)(a) to (d) of that
section to the national precursor log exchange.
(C) Prescriptions, orders, and records maintained pursuant to this
section and stocks of pseudoephedrine products and ephedrine products
shall be open for inspection to federal, state, county, and municipal
officers, and employees of the state board of pharmacy whose duty it is to
enforce the laws of this state or of the United States relating to controlled
substances. Such prescriptions, orders, records, and stocks shall be open
for inspection by the state medical board and its employees for purposes
of enforcing Chapter 4731. of the Revised Code. Richland County, Case No. 14-CA-82 14
Emphasis added. As required, each retailer must keep a logbook of purchases of
pseudoephedrine products or ephedrine products,
(A) A retailer or terminal distributor of dangerous drugs that sells,
offers to sell, holds for sale, delivers, or otherwise provides a
pseudoephedrine product or ephedrine product to the public shall maintain
a logbook of all purchases of pseudoephedrine products or ephedrine
products made without a valid prescription. The logbook may be
maintained in a tangible format, in an electronic format, or in both formats.
As part of fulfilling this requirement, the retailer or terminal distributor of
dangerous drugs shall do all of the following:
(1) Require each individual who purchases a pseudoephedrine
product or ephedrine product without a valid prescription to sign an entry
in the log book;
(2) Determine whether the name signed in the entry in the log book
corresponds with the name on a government-issued identification card;
(3) Retain the log book in a tangible format, in an electronic format,
or in both formats for a minimum of one year after the date of the last
purchase recorded in the log book or as required by federal law;
(4) Include in the log book in the manner described in division (D) of
this section or, in the alternative, post in a conspicuous location the
following statement:
“Ohio law prohibits the over-the-counter purchase of a consumer
product containing a total amount of base pseudoephedrine or base Richland County, Case No. 14-CA-82 15
ephedrine that exceeds either three and six tenths grams in a single day
or nine grams within any period of thirty consecutive days. If, without a
valid prescription, you purchase a consumer product containing
pseudoephedrine or ephedrine, you are required to sign a log book that
may be accessible to law enforcement officers and provide a government-
issued identification card to verify your identity. Except in limited
circumstances, the purchase of more than the permissible amount of a
consumer product containing pseudoephedrine or ephedrine, and the
purchase by any individual under eighteen years of age of a consumer
product containing pseudoephedrine or ephedrine, are subject to criminal
prosecution or delinquency proceedings in accordance with Ohio law.
Also, the provision of false information concerning an individual’s name,
age, or other identification for the purpose of acquiring a consumer
product containing pseudoephedrine or ephedrine is subject to criminal
prosecution or delinquency proceedings in accordance with Ohio law.”
(B) Each individual who purchases a pseudoephedrine product or
ephedrine product without a valid prescription shall do both of the
following:
(1) Sign and print the purchaser’s name in the log book;
(2) Present a government-issued identification card to the retailer or
terminal distributor of dangerous drugs to verify the purchaser’s identity.
(C) Information contained in the log book may not be used or
disclosed except in the following circumstances: Richland County, Case No. 14-CA-82 16
(1) In response to a court order or subpoena;
(2) In response to a request from a law enforcement official to be
used for law enforcement purposes;
(3) For purposes of complying with requirements in section
3715.052 of the Revised Code regarding the submission of information to
the national precursor log exchange.
Regarding each sale of pseudoephedrine product or ephedrine product that is
not made pursuant to a valid prescription every retailer shall submit to the national
precursor log exchange,
(a) The purchaser’s name and address;
(b) The name and quantity of the product purchased;
(c) The date and time of the purchase;
(d) The type of government-issued identification provided by the
purchaser at the time of purchase, pursuant to division (B)(2) of section
3715.051 of the Revised Code, the identification number, if any, on the
identification, and the agency that issued the identification.
R.C. 3715.052.
{¶34} In the case at bar, Coleman complains that the pharmacy records were
not made by a person with knowledge and that there was no testimony that the record
were made at or near the time of the transaction. Further Coleman maintains that the
testifying witnesses had no personal knowledge of the matter. Coleman argues,
therefore his counsel was ineffective in failing to object to the testimony and admission Richland County, Case No. 14-CA-82 17
of records from four different pharmacies detailing his six pseudoephedrine purchases
between April 10, 2014 and May 19, 2014.
{¶35} All pharmacies must maintain a log book detailing the purchase or
attempted purchase. All Ohio pharmacies are required by law to report all sales and
attempted sales of pseudoephedrine to a central pseudoephedrine clearing house,
called NPLEx. The purpose of the NPLEx system is to monitor suspicious purchases of
pseudoephedrine tablets. All purchase requests are submitted by the pharmacy to
NPLEx along with the customer’s driver’s license. All such transactions are recorded
and the information is available to law enforcement.
{¶36} The law affirmatively imposes the duty to record and the contents of the
record. It can be assumed, therefore, the record was made at or near the time of the
purchase or attempted purchase.
In order to properly authenticate business records, a witness must
“testify as to the regularity and reliability of the business activity involved in
the creation of the record.” Hirtzinger at 49, 124 Ohio App.3d 40, 705
N.E.2d 395. Firsthand knowledge of the transaction is not required by the
witness providing the foundation; however “‘it must be demonstrated that
the witness is sufficiently familiar with the operation of the business and
with the circumstances of the record’s preparation, maintenance and
retrieval, that he can reasonably testify on the basis of this knowledge that
the record is what it purports to be, and that it was made in the ordinary
course of business consistent with the elements of Rule 803(6).’" State v.
Vrona (1988), 47 Ohio App.3d 145, 148, 547 N.E.2d 1189, quoting 1 Richland County, Case No. 14-CA-82 18
Weissenberger’s Ohio Evidence (1985) 75–76 Section 803.79. See, also,
Moore at ¶ 18.
Deutsche Bank National Trust Co. v. Hansen, 5th Dist. Fairfield No. 2010 CA 00001,
2011-Ohio-1223, ¶26.
{¶37} In Soliday v. Pittenger, 5th Dist. Richland No. 10–CA–17, 2010–Ohio–
4861, this Court affirmed a trial court’s exclusion of an Excel spreadsheet. We
concluded that the proponents of the spreadsheet did not present sufficient evidence to
meet the business records exception to the hearsay rule where no one testified as to
who prepared the spreadsheet, what that person’s job duties were, when the record
was prepared, or how the information was collected and compiled. Id. at ¶ 41. However,
in the case at bar, the specific information collected, and the manner of collecting and
maintaining the information are all set forth by statue.
{¶38} In the case at bar, Pharmacy Manager Jacob Metzger testified that the
records were made in the ordinary course of CVS business and that he was familiar
with the process of selling pseudoephedrine and the records of those sales.
Furthermore, the authentication affidavit provided the necessary information regarding
the maintenance and retrieval of those records and verified that the records were what
they purported to be.
{¶39} Pharmacist Jody Ludwick testified about the records documenting
Coleman's April 15 and May 18, 2014 pseudoephedrine purchases from the Ontario
Wal-Mart and Coleman's May 19, 2014 pseudoephedrine purchase from the Mansfield
Wal-Mart. Ludwick testified that the purchase records were kept in the ordinary course
of Wal-Mart's business. Ludwick further testified testimony that she is familiar with the Richland County, Case No. 14-CA-82 19
process of selling pseudoephedrine, i.e. identification requirements and "meth checks."
The certification of accuracy provided by Wal-Mart's records custodian verified that the
records were what they purported to be.
{¶40} Pharmacist Nicole Fulks testified about the records documenting
Coleman's May 16, 2014 pseudoephedrine purchase from the Mansfield Kroger. Fulks
testified that the records were kept in the ordinary course of Kroger's business. Fulks
testified she is familiar with the process of selling pseudoephedrine, i.e. identification
requirements and "meth checks."
{¶41} In State v. Hood, the Ohio Supreme Court observed,
A “qualified witness” for this purpose [Evid.R. 803(6)] 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.” 5 McLaughlin, Weinstein’s Federal
Evidence, Section 803.08[8] [a] (2d Ed.2009); United States v. Lauersen,
348 F.3d 329, 342 (2d Cir.2003).
135 Ohio St.3d 137, 2012-Ohio-6208, 984 N.E.2d 1057, ¶40.
{¶42} In the case at bar, each witness testified that the records were kept in the
ordinary course of business and each had enough familiarity with the record keeping to
explain how the records came in to existence in the ordinary course of business.
Accordingly, the reports were admissible under Evid.R.803 (6) and counsel was not
ineffective in failing to object to the records or the testimony concerning the records.
{¶43} Coleman's first assignment of error is overruled. Richland County, Case No. 14-CA-82 20
II.
{¶44} In his second assignment of error, Coleman argues he was improperly
convicted on Counts 1 and 2, as they were allied offenses of similar import. Coleman
was convicted On Count 1 for Illegal Manufacture of Methamphetamine in the Vicinity of
a Juvenile, a first degree felony pursuant to R.C. 2925.04(A) & (C)(3)(b) and on Count 2
for Illegal Assembly or Possession of Chemicals for Manufacturing of
Methamphetamine in the Vicinity of a Juvenile, a second degree felony pursuant to R.C.
2925.041 (A) & (C)(2).
{¶45} R.C. 2925.041 governs assembly or possession of chemicals used to
manufacture controlled substance with intent to manufacture controlled substance,
(A) No person shall knowingly assemble or possess one or more
chemicals that may be used to manufacture a controlled substance in
schedule I or II with the intent to manufacture a controlled substance in
schedule I or II in violation of section 2925.04 of the Revised Code.
{¶46} R.C. 2925.04 governs illegal manufacture of drugs,
(A) No person shall knowingly cultivate marihuana or knowingly
manufacture or otherwise engage in any part of the production of a
controlled substance.
{¶47} R.C. 2941.25, Multiple counts states:
(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the indictment or
information may contain counts for all such offenses, but the defendant
may be convicted of only one. Richland County, Case No. 14-CA-82 21
(B) Where the defendant’s conduct constitutes two or more
offenses of dissimilar import, or where his conduct results in two or more
offenses of the same or similar kind committed separately or with a
separate animus as to each, the indictment or information may contain
counts for all such offenses, and the defendant may be convicted of all of
them.
{¶48} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 8921 the
Ohio Supreme Court revised its allied-offense jurisprudence,
1. In determining whether offenses are allied offenses of similar
import within the meaning of R.C. 2941.25, courts must evaluate three
separate factors-the conduct, the animus, and the import.
2. Two or more offenses of dissimilar import exist within the
meaning of R.C. 2941.25(B) when the defendant’s conduct constitutes
offenses involving separate victims or if the harm that results from each
offense is separate and identifiable.
Ruff, at syllabus. The Court further explained,
A trial court and the reviewing court on appeal when considering
whether there are allied offenses that merge into a single conviction under
R.C. 2941.25(A) must first take into account the conduct of the defendant.
In other words, how were the offenses committed? If any of the following
is true, the offenses cannot merge and the defendant may be convicted
and sentenced for multiple offenses: (1) the offenses are dissimilar in
import or significance—in other words, each offense caused separate,
1 Ruff was decided March 25, 2015, before Coleman filed his brief in this Court on May 26, 2015. Richland County, Case No. 14-CA-82 22
identifiable harm, (2) the offenses were committed separately, and (3) the
offenses were committed with separate animus or motivation.
{¶49} In the case at bar, the police did not find an active cook upon their entry
into the bedroom. Nor did the police find any of the pseudoephedrine that Coleman had
purchased between April 10, 2014 and May 19, 2014.
{¶50} The trial court instructed the jury that to find Coleman guilty of illegal
manufacture of drugs the jury would have
to find beyond a reasonable doubt that between April 1st and June
7th, this year, 2014...Ray Coleman knowingly aided and abetted another
person in manufacturing or otherwise engaging in any part of the
production of methamphetamine.
{¶51} The trial court instructed the jury that to find Coleman guilty of illegal
assembly or possession of chemicals for the manufacture of methamphetamine the jury
would have
to find beyond a reasonable doubt that between April 1st and June
7th, 2014...Mr. Coleman knowingly assembled or possessed chemicals
that may be used to manufacture ...with the intent to manufacture a
Schedule 2 controlled substance.
2T at 346-347.
{¶52} Applying the facts to Coleman’s actions as they were charged, we find the
possession of chemicals and the engagement in any part of the production of drugs are
allied offenses that did not cause separate harm, were not committed separately and
do not have a separate animus. See, State v. Stevenson, 5th Dist. Perry No. 09CA16, Richland County, Case No. 14-CA-82 23
2010-Ohio-2060, ¶32 (applying the pre-Ruff allied offenses test set forth in State v.
Cabrales, 118 Ohio St.3d 54, 886 N.E.2d 181, 2008-Ohio-1625 and finding the
possession of chemicals and the engagement in any part of the production of drugs are
allied offenses that do not have a separate animus); State v. Collins, 12th Dist. Clinton
Nos. CA2010-12-021, CA2010-12-022, 2012-Ohio-430 (applying the pre-Ruff allied
offenses test set forth in State v. Johnson, 128 Ohio St.3d 153, 2010–Ohio–6314).
{¶53} In State v. Damron, 129 Ohio St.3d 86, 2011–Ohio–2268, 950 N.E.2d 512,
the Ohio Supreme Court noted,
When a defendant has been found guilty of offenses that are allied
offenses, R.C. 2941.25 prohibits the imposition of multiple sentences.
Whitfield, 124 Ohio St.3d 319, 2010–Ohio–2, 922 N.E.2d 182, at ¶ 12.
Therefore, a trial court must merge the crimes into a single conviction and
impose a sentence that is appropriate for the offense chosen for
sentencing. State v. Brown, 119 Ohio St.3d 447, 2008–Ohio–4569, 895
N.E.2d 149, at ¶ 41–43. In this case, the sentencing court found Damron
guilty of both offenses and sentenced him on both. The imposition of
concurrent sentences is not the equivalent of merging allied offenses.
Id. at ¶ 17.
{¶54} The Court in State v. Whitfield, 124 Ohio St.3d 319, 2010–Ohio–2, 922
N.E.2d 182, at ¶ 12.Whitfield further held,
If, upon appeal, a court of appeals finds reversible error in the
imposition of multiple punishments for allied offenses, the court must
reverse the judgment of conviction and remand for a new sentencing Richland County, Case No. 14-CA-82 24
hearing at which the state must elect which allied offense it will pursue
against the defendant. On remand, trial courts must address any double
jeopardy protections that benefit the defendant...
Whitfield, supra at ¶ 25.
{¶55} In cases in which the imposition of multiple punishments is at issue, R.C.
2941.25 (A)’s mandate that a defendant may only be “convicted” of one allied offense is
a protection against multiple sentences rather than multiple convictions. See, e.g., Ohio
v. Johnson, 467 U.S. 493, 498, 104 S.Ct. 2536, 81 L.Ed.2d 425(1984). A defendant
may be indicted and tried for allied offenses of similar import, but may be sentenced on
only one of the allied offenses. State v. Brown, 119 Ohio St.3d 447, 2008–Ohio–4569,
895 N.E.2d 149, ¶ 42. Because R.C. 2941.25(A) protects a defendant only from being
punished for allied offenses, the determination of the defendant’s guilt for committing
allied offenses remains intact, both before and after the merger of allied offenses for
sentencing. State v. Whitfield, 124 Ohio St .3d 319, 2010–Ohio–2, 922 N.E.2d 182, ¶27.
Thus, the trial court should not vacate or dismiss the guilt determination on each count.
Id. Pursuant to Damron, the imposition of concurrent sentences is not the equivalent of
merging allied offenses.
{¶56} Coleman's second assignment of error is granted.
{¶57} Pursuant to Whitfield, supra, the sentences are vacated and the matter is
remanded to the trial court for resentencing where the state must elect the offense for
which appellant should be punished. Richland County, Case No. 14-CA-82 25
III.
{¶58} In his third assignment of error, Coleman contends the trial court abused
its discretion by not allowing his trial counsel to describe an alleged methamphetamine
lab discovered at Charlie and Deanna's new address during opening statement.
{¶59} In his opening statement, Coleman argues that he attempted to plant the
seed that there were different possible perpetrators to the crimes in question,
MR. THOMPSON: ...Finally, I believe there is going to be evidence
introduced showing that when the police responded to 3521/2 Boston
Avenue they became aware of a potential kidnapping involving Julie
Starcher's grandson Austin. It was received in the form of a test message.
Law enforcement took it seriously. And the two people believed to be
involved in this kidnapping were Charlie Ledbetter and Deana Hebert.
Why is this important? It is important because as a result of that
phone call law enforcement had the opportunity to respond to 1095
Koogle Road, Apartment No. 2, on June 7th. The same day as we're
talking about.
MS. WOODWARD: Your Honor, may we approach?
I believe he's about to get into facts relating to a different meth lab
at a different location, which I believe has no relevancy, other than a
commonality of parties, to anything that's alleged to have been done by
this defendant in this case. In other words, we are attempting to prove only
that he committed acts with regard to Boston. We are not alleging he did
anything with regards to Koogle Road. Richland County, Case No. 14-CA-82 26
MR. THOMPSON: My response would be, Your Honor, I have been
provided information indicating that not only Ray Coleman was purchasing
this Sudafed, but also Deanna Hebert and Mr. Ledbetter. I will be arguing
that the chemicals involved, that were found at 1095 Koogle Road, and
parts of that production system, were the same parts, the same chemicals
that were involved at the Boston Avenue address. I do believe it is
relevant because it shows or at least indicates that different persons could
have been involved with both labs. And I believe it is relevant.
MS. WOODWARD: I would have no objection to him producing
evidence concerning their involvement in this property. I would consider
that potentially relevant to this charge in this case, but flipping is not
necessarily, in my opinion, proper, and I don't think it's relevant.
MR. THOMPSON: I mean, the police are there investigating a meth
lab when the kidnapping call comes in. The kidnapping call is, this is a
blanking ransom, bring me money or Sudafed. We've got all the same sort
of materials, the same chemicals. I believe it is relevant...
THE COURT: Here is what I suggest, don't put it in your opening
statement. Then when you think you've got a basis, you think it's relevant,
then tell me and then I will let you put it in front of the jury. I am concerned
it's not relevant, so keep it out of your opening statement. That way we will
avoid any problems.
1T. at 127-132. Richland County, Case No. 14-CA-82 27
{¶60} It appears that the trial court's ruling was in the nature of the granting of a
motion in limine. In State v. Grubb, the Ohio Supreme Court defined a motion in limine,
Thus, a motion in limine, if granted, is a tentative, interlocutory,
precautionary ruling by the trial court reflecting its anticipatory treatment of
the evidentiary issue. In virtually all circumstances finality does not attach
when the motion is granted. Therefore, should circumstances
subsequently develop at trial, the trial court is certainly at liberty “ * * * to
consider the admissibility of the disputed evidence in its actual context.”
State v. White (1982), 6 Ohio App.3d 1, at 4, 451 N.E.2d 533.
28 Ohio St.3d 199, 201-202, 503 N.E.2d 142(1986). Thus, in the case at bar, the trial
court did not enter a blanket prohibition excluding any mention or evidence of the
alleged methamphetamine lab discovered at Charlie and Deanna's new address; rather
the trial court simply ruled that no mention be made until a proper foundation for the
admissibility of the evidence be shown.
{¶61} Coleman does not allege that the trial court prohibited him from seeking to
introduce evidence of the alleged methamphetamine lab discovered at Charlie and
Deanna's new address. Nor does Coleman cite to any portion of the transcript where he
presented this evidence or the trial court denied him the opportunity to present such
evidence. Opening statements are not testimonial evidence and may not be considered
as such. Maggio v. Cleveland, 151 Ohio St. 136, 38 O.O. 578, 84 N.E.2d 912(1949).
None of Coleman's purported comments at issue here was supported by evidence
subsequently offered at trial. Thus, Coleman has failed to establish that any error
occurred. See, e.g., State v. Davis, 62 Ohio St.3d at 337, 581 N.E.2d 1362; State v. Richland County, Case No. 14-CA-82 28
Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶157. Moreover, the trial
court instructed the jury that it must decide the case on the evidence and that opening
statements and closing arguments are not evidence. In Drake v. Caterpillar Tractor Co.,
15 Ohio St.3d 346, 474 N.E.2d 291(1984) the Supreme Court noted,
However, it is improper for counsel to comment on evidence which
was excluded or declared inadmissible by the trial court or otherwise make
statements which are intended to get evidence before the jury which
counsel was not entitled to have the jury consider.
{¶62} Accordingly, if the facts were not in evidence and not attempted to be
placed in evidence there can be no error.
{¶63} Coleman's third assignment of error is overruled. Richland County, Case No. 14-CA-82 29
{¶64} Accordingly, the judgment of the Richland County Court of Common Pleas
is affirmed, in part and reversed, in part. In accordance with the Ohio Supreme Court’s
decision in State v. Whitfield, 124 Ohio St .3d 319, 2010–Ohio–2, 922 N.E.2d 182, we
remand this case to the trial court for further proceedings consistent with that opinion.
This decision in no way affects the guilty verdicts issued by the jury. It only affects the
entry of conviction and sentence. Coleman’s convictions are affirmed.
By Gwin, P.J.,
Farmer, J., and
Delaney, J., concur