[Cite as State v. Coleman, 2015-Ohio-3907.]

COURT OF APPEALS 

RICHLAND COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsRAY COLEMAN, JR. 

 Defendant-Appellant 

JUDGES: 

: Hon. W. Scott Gwin, P.J. 

: Hon. Sheila G. Farmer, J. 

: Hon. Patricia A. Delaney, J. 

: 

: 

: Case No. 14-CA-82 

: 

: 

: O P I N I O N 

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 

Ontario and purchased medicine containing 2.4 grams of 

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 governmentissued 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