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11th District reverses illegal assembly conviction in meth case
TRACEY BLAIR
Legal News Reporter
Published: January 25, 2018
A Lake County trial judge erred by allowing evidence regarding an appellant’s prior purchases of products containing pseudoephedrine in a meth case.
The 11th District Court of Appeals recently reversed and remanded Max S. Struble’s conviction for illegal assembly or possession of chemicals for the manufacture of drugs.
After a jury convicted him of three counts, Struble was sentenced to a total of 60 months in prison – including three years for the illegal assembly charge.
Struble’s convictions for aggravated possession of drugs and possessing criminal tools were affirmed.
According to case summary, Struble was arrested on March 30, 2016 in Mentor while police were surveilling retail store parking lots for suspicious behavior during a theft investigation.
The officers wore civilian clothes and drove an unmarked vehicle. They were searching for cars in which one person would make multiple trips into a store while several others remained in the vehicle.
Around 11:30 a.m. that day, two patrolmen saw a tan Saturn pull into a Target parking lot with four occupants. Struble was sitting in the front passenger seat.
Struble and a female passenger got out of the car, while the other two remained in the vehicle.
Patrolman Michael Bruening watched Struble buy something something at the pharmacy. A pharmacy employee told the officer he had bought two boxes of Sudafed.
Since Sudafed contains a chemical used to manufacture methamphetamine, the officers followed the Saturn to a nearby Lowe’s.
The patrolmen watched Struble change his clothes before going inside to buy drain cleaner. The same female passenger also was seen buying drain cleaner.
While following the Saturn, the officers called for assistance. They stopped the car when the driver failed to signal.
The other officer asked the driver if drugs were inside the car after smelling a faint odor of marijuana. The driver was patted down after admitting he had smoke marijuana and had a pipe in his pocket.
Struble told officers that two small bags of white powder in his pockets were cocaine. However, the powder later tested positive for methamphetamine.
In addition, the Target and Lowe’s bags were found on the car’s floor.
On appeal, Struble argued that he was prejudiced when the trial court admitted into evidence a National Precursor Law Exchange report. The NPLEx is a nationwide database that tracks all purchases or attempted purchases of pseudophedrine at pharmacies.
Struble claimed the report was hearsay since none of the state’s witnesses could explain how the report was created or maintained.
The appellate panel found admitting the NPLEx report was not harmless.
“… None of the three co-defendants in this case testified that the pseudoephedrine and drain cleaner were purchased for the purpose of making methamphetamine,” 11th District Judge Thomas R. Wright wrote in his opinion. “Instead, a finding that they were obtained to manufacture the drug was circumstantial. Although there were other facts, such as the presence of two bags of methamphetamine in appellant’s pocket, that could support an inference of the required intent, those other facts are not so overwhelming that it is certain the jury would have reached the same verdict on the illegal assembly count if the NPLEx report had not been admitted.”
Appellate judges Timothy P. Cannon and Colleen Mary O’Toole concurred.
The case is cited State v. Struble, 2017-Ohio-9326.