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

IN THE COURT OF APPEALS 

ELEVENTH APPELLATE DISTRICT 

LAKE COUNTY, OHIO 

STATE OF OHIO, : O P I N I O N 

 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 DefendantAppellant). 

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 
 2

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 
 3

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-ofpseudoephedrine-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 seatadjustment 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 
 4

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 
 5

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. 
 6

{¶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. 
 7

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. 
 8

{¶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. 
 9

{¶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. 
 10

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 
 11

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 
 12

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 
 13

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. 
 14

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 
 15

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. 
 16

{¶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.