State v. Kittle

Citations: 2017 Ohio 7853; 97 N.E.3d 1240Docket: 27977

Court: Ohio Court of Appeals; September 27, 2017; Ohio; State Appellate Court

Original Court Document: View Document

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Dana K. Kittle appeals her conviction for illegal assembly or possession of chemicals for drug manufacturing from the Summit County Court of Common Pleas, which has been affirmed by the Court of Appeals. The case arose from police surveillance of an apartment suspected of illegal activity. During a traffic stop, officers arrested J.S., who was driving Kittle's car and found methamphetamine in her possession. Although Kittle was not arrested at that time, police later discovered evidence of a methamphetamine lab in the apartment. Kittle admitted to buying pseudoephedrine for J.S. in exchange for methamphetamine during police questioning.

Kittle was indicted on three counts, but the State dismissed two prior to trial. During the bench trial, the State relied on Officer Lemonier’s testimony and NPLEX records tracking pseudoephedrine purchases. Kittle did not present any evidence. The trial court found her guilty and sentenced her to five years in prison. 

In her first assignment of error, Kittle contends that the trial court improperly admitted the NPLEX records because Officer Lemonier, who laid the foundation for these records, was not the custodian and lacked the qualifications to do so. She claims this violated her rights under the Ohio Constitution and the Sixth Amendment's Confrontation Clause, arguing that a de novo standard of review is warranted due to the nature of the alleged error.

The standard of review for the case is addressed, focusing on Ms. Kittle's contention that NPLEX records are testimonial, invoking the Confrontation Clause. She fails to substantiate this claim adequately, relying on Ohio Supreme Court precedent that classifies business records as nontestimonial. In her reply brief, she argues that NPLEX records are testimonial since their primary purpose is to aid in preventing methamphetamine production. However, the court states that appellate courts typically do not consider new issues raised in reply briefs. The court ultimately finds Ms. Kittle's argument unconvincing, clarifying that testimonial statements are those intended to serve as substitutes for trial testimony. The NPLEX system's primary purpose is to track pseudoephedrine purchases rather than to create evidence for trials, as supported by relevant case law. Consequently, the court rejects her claims regarding the Confrontation Clause and the de novo standard of review.

Additionally, Ms. Kittle argues that the trial court improperly allowed Officer Lemonier to establish the foundation for the NPLEX records. The court applies an abuse of discretion standard to review the trial court's decision to admit business records into evidence, per Evidence Rule 803(6). This rule allows business records to be admitted if they are created in the ordinary course of business and the custodian or a qualified witness can testify to their creation. A qualified witness must demonstrate sufficient familiarity with the record-keeping system to explain the records' existence.

A witness testifying to establish a business record does not need personal knowledge of the document's creation but must be familiar with the business's operations and record-keeping processes to affirm that the record is authentic and was made in the regular course of business, as outlined in Evid. R. 803(6). Officer Lemonier provided testimony based on his experience and training regarding the NPLEX system used by pharmacies to track pseudoephedrine purchases. He confirmed his access to the system, described the process for tracking purchases via ID swiping, and explained the system's immediate transmission of purchase data, including restrictions on quantities purchased. Officer Lemonier retrieved NPLEX records for Ms. Kittle, demonstrating that he was a qualified witness under Evidence Rule 803(6), leading to the admissibility of the records into evidence.

In her second assignment of error, Ms. Kittle contended that the trial court compromised its role as an impartial fact-finder by directing the prosecution to enhance its evidence mid-trial, infringing on her rights to a fair trial and due process. She argued for a de novo review standard, which the court disagreed with, finding no merit in her claim. The court referenced Evid. R. 614(B), stating the rule allows for court interrogation of witnesses in an impartial manner to avoid influencing jury perceptions of credibility.

In a bench trial context, the trial judge has increased latitude in questioning witnesses since there is no jury to influence. The presumption is that the judge acts impartially unless bias or coercion is demonstrated. Reviewing courts will assess any alleged prejudicial errors from the judge's questioning by considering the entire record to determine if there was a manifest abuse of discretion. In this case, during cross-examination of Officer Lemonier, it was highlighted that the NPLEX record lacked certain information regarding the identification used for a purchase. Officer Lemonier explained that he could access this information if he logged into the system, but it was not standard practice for him to print it. The trial court expressed its commitment to truth-seeking and allowed Officer Lemonier to print the expanded record, but Ms. Kittle’s counsel opted not to cross-examine him on this new information. The reviewing court found no abuse of discretion regarding the trial court's actions.

Ms. Kittle also claimed reversible error when the trial court amended the indictment on the day of trial to extend the date range to include the previous week, arguing this violated her constitutional rights. The court disagreed, stating that amendments to indictments are reviewed for abuse of discretion, which is defined as an unreasonable or arbitrary attitude. For reversible error, the defendant must demonstrate both an abuse of discretion and that the amendment prejudiced her defense. In this instance, the indictment originally specified a date of December 2, 2014, for the offense, but the court permitted the amendment to include the prior week. Evidence indicated that Ms. Kittle purchased pseudoephedrine on November 30, 2014, which was given to another individual for methamphetamine production, with meth being produced on December 2, 2014.

Ms. Kittle was found guilty by the trial court based solely on the December 2, 2014 date. Even if the trial court had abused its discretion, Ms. Kittle did not demonstrate any prejudice, which prevents her from claiming reversible error. Consequently, her third assignment of error is overruled, along with all her assignments of error. The judgment of the Summit County Court of Common Pleas is affirmed, with a special mandate issued to enforce this judgment. A certified copy of the journal entry will serve as the mandate, initiating the review period upon filing. The Clerk of the Court of Appeals is instructed to notify the parties of the judgment, and costs are taxed to the Appellant. The decision is documented with concurrence from Judges Schafer and Teodosio, with appearances noted for both the Appellant's and Appellee's legal representation.