[Cite as State v. Phillips, 2017-Ohio-1204.]


                                     IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                          LAKE COUNTY, OHIO


STATE OF OHIO,                                     :      OPINION

                 Plaintiff-Appellee,               :
                                                          CASE NO. 2016-L-029
        - vs -                                     :

JODY T. PHILLIPS,                                  :

                 Defendant-Appellant.              :


Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2015 CR
000928.

Judgment: Affirmed.


Charles E. Coulson, Lake County Prosecutor, and Anna C. Kelley, Assistant
Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
Painesville, OH 44077 (For Plaintiff-Appellee).

Charles R. Grieshammer, Lake County Public Defender, and Aaron T. Baker, Assistant
Public Defender, 125 East Erie Street, Painesville, OH 44077 (For Defendant-
Appellant).



CYNTHIA WESTCOTT RICE, P.J.

        {¶1}     Appellant, Jody T. Phillips, appeals the judgment of conviction entered by

the Lake County Court of Common Pleas, after trial by jury, on one count of Possession

of Chemicals for the Manufacture of Drugs. At issue is whether the trial court properly

admitted a copy of certain records kept in the National Precursor Log Exchange

(“NPLEx”), a national database which tracks all purchases or attempted purchases of

pseudoephedrine and ephedrine from pharmacies, under the business records
exception to the hearsay rule.      For the reasons below, we affirm the trial court’s

judgment.

       {¶2}   On November 3, 2015, appellant travelled from Ashtabula, Ohio to Mentor,

Ohio with three individuals, Alejandro Martinez, Joseph Michael Shaw, and David

Hettmansperger, in Martinez’s GMC Jimmy.           The individuals first stopped at a

Walgreens where Shaw attempted to purchase Sudafed.          The pharmacy, however,

refused to sell Shaw the drug because he was rejected by NPLEx. They then drove to

Target; after pulling in and parking in an area where employees usually park, Martinez,

popped the hood and exited the vehicle to check the engine. Hettmansperger exited

the vehicle and entered the store to purchase Sudafed. Shaw also left the vehicle and

entered a nearby Arby’s restaurant where he shot heroin in the bathroom.

       {¶3}   Patrolman Brian Vernick and Detective Matthew Alvord, each of the

Mentor Police Department, were in an unmarked vehicle in the Target parking lot,

working retail theft.   The officers noticed a GMC Jimmy parked in what they perceived

as a strange location. They observed Shaw leave the vehicle and run to Arby’s. The

officers observed Hettmansperger leave Target and return to the vehicle after which

Hettmansperger walked over to the Arby’s, then return to the vehicle. Shaw returned

shortly thereafter. Martinez and appellant remained seated in the front of the vehicle

until Martinez popped the hood and exited the Jimmy.

       {¶4}   When Martinez exited, the officers walked toward the GMC Jimmy;

although they were in plain clothes, their badges were visible.        Hettmansperger

approached Officer Vernick and asked to speak with him away from the vehicle, while

Detective Alvord addressed the remaining men. Hettmansperger explained he wanted

to speak with Office Vernick privately so the others did not hear him. Based on their


                                            2
conversation, the officer determined Hettmansperger, Shaw, and appellant were

attempting to purchase Sudafed or pseudoephedrine for the purpose of manufacturing

methamphetamine. Hettmansperger disclosed he had just made the purchase and the

box was in the vehicle.

      {¶5}    Meanwhile, Detective Alvord asked Shaw to exit the rear passenger seat

of the vehicle and spoke with him.      Because Shaw appeared overly nervous, the

detective patted him down for weapons. While doing so, he located a syringe in Shaw’s

pocket.    After detaining Shaw for the syringe, the detective located a denial-of-

pseudoephedrine-purchase receipt on Shaw’s person. The detective ultimately learned

Shaw had attempted to purchase pseudoephedrine at Walgreens in Mentor and the

men were at Target to purchase pseudoephedrine.

      {¶6}    The officers conferred with one another regarding Hettmansperger’s and

Shaw’s statements. Hettmansperger was patted down, but nothing of evidentiary value

was found on him. Appellant was then asked to exit the vehicle and confronted about

the box of pseudoephedrine in the vehicle. Appellant appeared standoffish and not

interested in talking with the officers. Appellant ultimately stated that pseudoephedrine

was “somewhere” in the car. Detective Alvord obtained permission from Martinez to

search the vehicle, who appeared upset when he learned about Shaw’s syringe and the

investigation relating to pseudoephedrine. During the search, the detective found a box

of Sudafed that was shoved under the front-passenger seat in a space near the seat-

adjustment rail which is adjacent to the center console. The box appeared slightly

damaged.

      {¶7}    Detective Alvord confronted appellant about the box; appellant denied

placing it in that location and claimed Hettmansperger must have placed the


                                           3
pseudoephedrine under the seat. The detective stated, however, that Hettmansperger

was seated in the rear driver’s-side compartment and was not observed entering the

front-passenger compartment.

      {¶8}   Appellant was indicted on one count of illegal assembly or possession of

chemicals for the manufacture of drugs, a felony of the third degree, in violation of R.C.

2925.041, and a forfeiture specification pursuant to R.C. 2941.1417 and R.C. 2981.04.

Appellant waived his right to be present at arraignment and a plea of “not guilty” was

entered on his behalf. The state filed a notice of complicity stating that, in addition to

offering evidence that appellant was the principal offender, it would also offer evidence

that appellant was a co-complicitor in aiding and abetting Shaw and/or Hettmansperger

in the charged offense.

      {¶9}   Appellant filed a waiver of right to a jury trial on the forfeiture specification

and a jury trial commenced on the “illegal assembly or possession” count. At trial,

Hettmansperger testified he, as a result of the underlying incident, had pleaded guilty to

attempted illegal assembly or possession of chemicals for the manufacture of drugs. As

a result of the plea, and in exchange for his testimony, the state agreed to recommend

community control rather than prison. As of the date of trial, Hettmansperger had not

been sentenced.

      {¶10} Hettmansperger testified that he and Shaw are very close friends; he

stated he and Shaw had visited appellant the night before the incident and, during the

visit, appellant requested Shaw obtain a box of Sudafed.            The next day, Shaw’s

purchase was rejected and, according to Hettmansperger, appellant advised him to

purchase the drug.    Hettmansperger testified he purchased the Sudafed at Target

because appellant indicated he could get violent if he was unable to obtain a box. After


                                             4
buying the drug, Hettmansperger stated he delivered the box to appellant, who was

sitting in the front passenger seat of the Jimmy. Hettmansperger testified he observed

appellant shove the box under the seat.

      {¶11} Hettmansperger       testified   appellant   wanted     Sudafed     to   make

methamphetamine (“meth”). When asked how he knew this, Hettmansperger answered

“[b]ecause he’s done it a couple times in the Economy Inn and stuff.” Hettmansperger

stated that he had not directly observed appellant making meth, but had helped

appellant clean up a plastic bottle which he knew was used in the manufacture of meth.

Hettmansperger testified appellant provided him with meth on the day of the purchase

and that he had purchased Sudafed for appellant maybe one other time.

      {¶12} Shaw testified that he had entered pleas of guilty to one count of

attempted illegal assembly or possession of chemicals for the manufacture of drugs and

one count of possession of heroin.      He stated that, as a result of the plea and in

exchange for his testimony, the state agreed to recommend an 18-month prison term.

Shaw had not been sentenced as of the date of the trial.

      {¶13} Shaw’s version of the events was similar to Hettmansperger’s.              He

testified that after he and Hettmansperger met with appellant on the previous night, it

was his understanding that he would purchase a box of Sudafed for appellant to use in

the manufacture of meth. He testified that, although he had not previously made such a

purchase for appellant, he had made similar purchases for other, unnamed individuals

“quite a few” times. Shaw testified he attempted to purchase Sudafed at Walgreens in

Mentor, but was rejected. He stated that the group subsequently drove to Target. Upon

arriving, he testified he went to an Arby’s restaurant across the street and used heroin in

the bathroom.


                                             5
      {¶14} Magdalene Stimac, a pharmacist employed by the Walgreens in Mentor,

testified that Shaw had attempted to purchase pseudoephedrine in the store on

November 3, 2015, but was denied. The state introduced the denial receipt from the

attempted purchase in question. She testified regarding Walgreens’ procedure when a

customer attempts to purchase pseudoephedrine or ephedrine products. She stated a

customer is required to produce a form of identification. The ID is then scanned into the

NPLEx system, a data base which monitors the purchase of such drugs. NPLEx is

owned and operated by a private company, Appriss.

      {¶15} Stimac testified that pseudoephedrine sales began being regulated in

2006; and prior to NPLEx, Walgreens utilized a tracking system called MethCheck; the

pharmacy has been using NPLEx since 2014. According to Stimac, the system tracks

how much pseudoephedrine is sold to individuals and will not permit a sale if a

customer attempts to purchase more than 3.6 grams in a single day or 9 grams in a

thirty-day period. If a customer attempts to purchase pseudoephedrine and he or she

has exceeded these limits, the purchase is blocked and recorded in real time in the

NPLEx system.      Walgreens then issues the would-be customer a receipt with a

transaction identification number that the customer can utilize to see why he or she was

denied.

      {¶16} The state also called Sergeant Brad Kemp, of the Lake County Narcotics

Agency, as an expert witness to testify that pseudoephedrine is a necessary chemical

for the manufacture of meth as well as his understanding of how the NPLEx system

keeps its records. With respect to the latter issue, the state submitted an uncertified

copy of NPLEx records relating to appellant’s purchase/attempted purchase of

pseudoephedrine at multiple pharmacies between January 2015 and October 2015.


                                           6
Overall,     the   record   indicated   appellant   purchased/attempted     to   purchase

pseudoephedrine 31 times. Defense counsel objected to the introduction of this

purported record, arguing that the document was hearsay evidence, which the state did

not dispute. Defense counsel further asserted that the business records exception to

the hearsay rule was inapplicable because Sergeant Kemp was neither the custodian of

the records nor a “qualified witness.” Defense counsel maintained that Sergeant Kemp

merely uses the records for investigative purposes, but was not qualified to lay a

foundation regarding whether or how each individual pharmacy kept the NPLEx records

in the regular course of their business activities. And he did not testify to possessing

knowledge of how the record had been created by each pharmacy or how the records

are kept in the course of Appriss’ regularly conducted business activity.

      {¶17} In response, the state argued that Stimac had previously testified to the

manner in which the NPLEx system functions; moreover, Sergeant Kemp testified that

he uses the system in the course of investigating meth crimes. According to the state,

this testimony was sufficient to lay a foundation triggering the business records

exception.

      {¶18} The trial court agreed with the state and the record was submitted to

demonstrate that appellant, between January 2015 and October 2015, had purchased

or attempted to purchase pseudoephedrine, in varying quantities, on 31 separate

occasions. Sergeant Kemp testified that the records were the most important piece of

evidence in the case for formulating his opinion that appellant was engaged in the illegal

assembly or possession of chemicals for the manufacture of drugs.           He stated the

frequency of the purchases indicated appellant’s intent to use pseudoephedrine for

meth production.


                                             7
      {¶19} The jury ultimately returned a verdict of “guilty” on the “illegal assembly or

possession” count. Appellant was sentenced to a term of 36 months in prison and the

box of pseudoephedrine was forfeited to the Mentor Police Department. Appellant now

appeals assigning the following error:

      {¶20} “The trial court erred to the prejudice of appellant by permitting admission

of NPLEx records into evidence, in violation of Evid.R. 801, 802, 803(6), and 805.”

      {¶21} Appellant asserts the trial court erred in admitting the copy of NPLEx

records because Sergeant Kemp was neither a custodian of the records nor a “qualified

witness,” as required by Evid.R. 803(6). Appellant notes that Sergeant Kemp admitted

he simply accessed the records and printed them.        Appellant underscores that the

NPLEx database is made up of information transmitted from private companies and

stored. Because Sergeant Kemp did not testify he had personal knowledge that these

companies kept the records in the course of a regularly conducted business activity, his

testimony was insufficient to lay an adequate foundation for the business records

exception to the hearsay rule.

      {¶22} Evid.R. 803(6), the business records exception to the rule prohibiting the

admission of hearsay, provides:

      {¶23} 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.



                                           8
      {¶24} Accordingly,

      {¶25} “To qualify for admission under Rule 803(6), a business record
            must manifest four essential elements: (i) the record must be one
            regularly recorded in a regularly conducted activity; (ii) it must have
            been entered by a person with knowledge of the act, event or
            condition; (iii) it must have been recorded at or near the time of the
            transaction; and (iv) a foundation must be laid by the ‘custodian’ of
            the record or by some ‘other qualified witness.’” State v. Davis, 116
            Ohio St.3d 404, 2008-Ohio-2, ¶171, quoting Weissenberger, Ohio
            Evidence Treatise 600, Section 803.73 (2007).

      {¶26} “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.’” State v. Hood, 135 Ohio

St.3d 137, 147, 2012-Ohio-6208, quoting 5 McLaughlin, Weinstein's Federal Evidence

Section 803.08[8][a] (2d Ed.2009).

      {¶27} The state does not contest the hearsay nature of the NPLEx records;

instead, it maintains Ms. Stimic and Sergeant Kemp were “qualified witnesses” whose

combined testimony was sufficient to lay a foundation for their admission. In support,

the state cites the Fifth Appellate District’s opinion in State v. Coleman, 5th Dist.

Richland No. 14-CA-82, 2015-Ohio-3907.

      {¶28} In Coleman, the state obtained NPLEx records and subsequently

subpoenaed business records of the appellant’s pseudoephedrine purchases from four

separate pharmacies.    After obtaining the records, the state sought to admit these

records through the testimony of pharmacists employed by the pharmacies in question.

The Fifth District determined “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.




                                           9
Accordingly, the reports were admissible under Evid.R. 803(6).” Coleman, supra, at

¶42.

       {¶29} Coleman stands for the principle that employees of specific pharmacies

who are familiar with their pharmacies’ record-keeping system as it relates to NPLEx

data are “other qualified witnesses” who are competent to lay a foundation for the

admission of their respective pharmacy’s business records. The state, in Coleman, did

not seek to admit copies of general NPLEx records.        In this case, however, the state

sought to admit a copy of the NPLEx records themselves (i.e., not records subpoenaed

from specific pharmacy records) through the testimony of a police officer who utilizes

the records for investigative purposes. Although Sergeant Kemp gave testimony of how

the NPLEx data system operates, when asked how the information is transmitted into

the system, he testified “I’m not the designer and I’m not very technologically advanced.

I know how to look.” Moreover, he is not an employee of Appriss, the company who

operates the system, and did not testify to any knowledge of the specific record-keeping

practices of that company.

       {¶30} Further, the state did not subpoena specific records from the individual

pharmacies that appear on the record. Even though Stimic testified to how Walgreens

records are kept, she is a Walgreens employee, not an employee of Appriss. In this

regard, it is unclear, under Coleman, whether she could function as an “other qualified

witness” to lay an adequate foundation for the NPLEx records, which were introduced

during Sergeant Kemp’s testimony.        Given these points, Coleman is fundamentally

distinguishable from the matter sub judice.

       {¶31} Our research fails to reveal any case holding the testimony of a police

officer, who utilizes the NPLEx system for investigative purposes, unto itself, is sufficient


                                              10
to lay a foundation to admit a copy of the NPLEx system records under the business

records exception.      Coleman affirmed the admission of business records of

pseudoephedrine purchases/denials that were subpoenaed from various pharmacies

through the testimony of employees of those pharmacies who were familiar with the

record-keeping practices of those businesses. In State v. McDonald, 5th Dist. Fairfield

No. 15-CA-45, 2016-Ohio-2699, the Fifth District determined that the testimony of a

police officer who used the system, in conjunction with three pharmacists from separate

pharmacies who identified the records from their respective stores as well as the

purchases and blocks contained in the records, was sufficient to lay a foundation for the

admission of the records.

      {¶32} Here, although Ms. Stimic testified to Walgreens’ use of the NPLEx

system and identified Shaw’s individual-“blocked” receipt record from Walgreens, the

state did not seek to use Ms. Stimic to lay a foundation for any of the Walgreens

purchases/attempted purchases recorded in the NPLEx report introduced during

Sergeant Kemp’s testimony.      Stimac’s testimony was sufficient to introduce Shaw’s

denial receipt; because, however, she was not asked to specifically lay a foundation for

appellant’s NPLEx record vis-à-vis his purchases or attempted purchases at Walgreens,

her testimony, under the circumstances, was inapplicable to that particular record.

      {¶33}    Further, Sergeant Kemp testified to how the information recorded in the

system is obtained, i.e., by swiping a prospective purchaser’s identification. He also

testified he knows how to look up information in the system and he testified to the

information that the system records, e.g., the time, date, salesperson, purchaser, and

quantity purchased. Although this testimony is useful for interpreting the record itself,

the sergeant’s testimony does not necessarily demonstrate “‘enough familiarity with the


                                           11
record-keeping system of the business in question [i.e., Apriss] to explain how the

record came into existence in the ordinary course of business.’” (Emphasis added.)

Hood, supra. We therefore hold, under the facts of this case, the state failed to lay an

adequate foundation to introduce the copy of the NPLEx record detailing appellant’s

purchases/attempted purchases between January 2015 and October of 2015.

      {¶34} Under the circumstances of this case, however, any error in admitting the

report would be harmless beyond a reasonable doubt. First, Sergeant Kemp testified to

the process of manufacturing meth and underscored that pseudoephedrine is a

necessary ingredient in the process.          The on-site officers testified to appellant’s

standoffish behavior, his admission that pseudoephedrine was in the vehicle, and the

location of the box under appellant’s seat.

      {¶35} Moreover, even though Hettmansperger and Shaw entered guilty pleas in

exchange for the prosecution’s agreement to recommend a less severe sentence, which

was conditioned upon their cooperation and testimony, each co-defendant stated their

testimony was truthful and each had inherently consistent renditions of the events.

Hettmansperger testified he knew appellant had previously made meth and, in fact, had

given him meth earlier on the day in question.                 He testified he had purchased

pseudoephedrine for appellant one time previously.                 And, after purchasing the

pseudoephedrine for appellant, Hettmansperger testified he handed appellant the box.

He also testified he observed appellant shove it under his seat.

      {¶36} Moreover,      Shaw     testified      appellant     wanted   him   to   purchase

pseudoephedrine for him; Shaw further testified he knew appellant was going to use the

pseudoephedrine to make meth.              Shaw stated he attempted to purchase




                                              12
pseudoephedrine at Walgreens for appellant on November 3, 2015, but was denied.

Ms. Stimic ultimately identified the denial receipt.

       {¶37} Given the foregoing evidence, and despite the introduction of the NPLEx

report, there was sufficient, credible evidence for the jury to conclude appellant was

guilty of possessing chemicals for the manufacture of drugs beyond a reasonable doubt.

       {¶38} Appellant’s assignment of error lacks merit.

       {¶39} For the reasons discussed in this opinion, the judgment of the Lake

County Court of Common Pleas is affirmed.



DIANE V. GRENDELL, J., concurs in judgment only,

COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.

                                _____________________


COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.


       {¶40} I respectfully dissent.

       {¶41} The majority finds that the trial court properly admitted a copy of certain

records kept in the National Precursor Log Exchange (“NPLEx”), a national database

which tracks all purchases or attempted purchases of pseudoephedrine and ephedrine

from pharmacies, under the business records exception to the hearsay rule. For the

reasons stated, I disagree.

       {¶42} “‘The trial court has broad discretion in the admission and exclusion of

evidence. State v. Hymore (1967), 9 Ohio St.2d 122, 128 (* * *). An appellate court

shall not disturb evidentiary rulings absent an abuse of discretion. Id.’ (Parallel citation

omitted.)   State v. Golding, 11th Dist. Lake No. 2008-L-049, 2009-Ohio-1437, ¶21.


                                             13
Regarding this standard, we recall the term ‘abuse of discretion’ is one of art, connoting

judgment exercised by a court which neither comports with reason, nor the record.

State v. Ferranto, 112 Ohio St. 667, 676-678, * * * (1925). An abuse of discretion may

be found when the trial court ‘applies the wrong legal standard, misapplies the correct

legal standard, or relies on clearly erroneous findings of fact.’ Thomas v. Cleveland,

176 Ohio App.3d 401, 2008-Ohio-1720, * * *, ¶15 (8th Dist.)”           (Parallel citations

omitted.) State v. Vanhorn, 11th Dist. Ashtabula No. 2016-A-0025, 2017-Ohio-704,

¶22.

       {¶43} “‘Hearsay’ is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” Evid.R. 801(C).

       {¶44} “Hearsay is not admissible except as otherwise provided by the

Constitution of the United States, by the Constitution of the State of Ohio, by statute

enacted by the General Assembly not in conflict with a rule of the Supreme Court of

Ohio, by these rules, or by other rules prescribed by the Supreme Court of Ohio.”

Evid.R. 802.

       {¶45} Evid.R. 803 provides in part:

       {¶46} “The following are not excluded by the hearsay rule, even though the

declarant is available as a witness:

       {¶47} “* * *

       {¶48} “(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


                                             14
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.”

       {¶49} Evid.R. 805 states: “Hearsay included within hearsay is not excluded

under the hearsay rule if each part of the combined statements conforms with an

exception to the hearsay rule provided in these rules.”

       {¶50} Evid.R. 901 provides in part:

       {¶51} “(B) Illustrations. By way of illustration only, and not by way of limitation,

the following are examples of authentication or identification conforming with the

requirements of this rule:

       {¶52} “* * *

       {¶53} “(10) Methods Provided by Statute or Rule. Any method of authentication

or identification provided by statute enacted by the General Assembly not in conflict with

a rule of the Supreme Court of Ohio or by other rules prescribed by the Supreme Court.”

       {¶54} In this case, the state called Sergeant Brad Kemp, of the Lake County

Narcotics Agency, as an expert witness to testify regarding pseudoephedrine and the

record-keeping of NPLEx. NPLEx is an electronic record kept across 30 states. NPLEx

registers the identification information every time a person purchases over the counter

pseudoephedrine at pharmacies. A record is kept as to how much each person has

purchased and over what time frame. NPLEx is run by Appriss, a private company.




                                             15
      {¶55} The trial court admitted, over repeated objection by the defense, the

NPLEx records through the testimony of Sergeant Kemp, reflecting 31 alleged

purchases of pseudoephedrine by appellant from January 2015 through October 2015.

Due to the admission of that information, Sergeant Kemp opined that the purchases

were for illicit purposes. However, Sergeant Kemp is a police officer. Sergeant Kemp

was not a custodian of the NPLEx records.           Sergeant Kemp, through his own

admission, indicated he knew how to pull up information in the system and merely

printed it out. The admitted records were not certified from NPLEx, Appriss, or any

pharmacy.

      {¶56} Contrary to the majority’s position, there is no “harmless error” in this case

as the state’s most powerful evidence came through Sergeant Kemp’s testimony and

the admitted NPLEx records. The admission of the NPLEx records through a police

officer who merely printed them out constitutes hearsay within hearsay.            Again,

Sergeant Kemp is not a custodian of the NPLEx records, by his own testimony.

Sergeant Kemp is also not an “other qualified witness as provided by Rule 901(B)(10).”

See Evid.R. 803(6). Admitting the NPLEx records in this case was admitting hearsay

within hearsay. See Evid.R. 805.

      {¶57} For the foregoing reasons, because this matter should be reversed and

remanded, I respectfully dissent.




                                           16
