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'Sudafed logs' exempt from hearsay rule.

Byline: David Donovan

Records from an interstate database of pseudoephedrine purchases fall within an exception to the rule against hearsay evidence, the South Carolina Court of Appeals has ruled in a case of first impression.

The court's Feb. 27 ruling was substituted and refiled in place of a 2018 opinion that had also upheld a Pickens County's man conviction for trafficking methamphetamine but had not addressed the issue of whether the logs were properly admitted.

Michael Mealor was charged with drug trafficking after a deputy for the Pickens County Sheriff's Office noticed that individuals with the same address were purchasing pseudoephedrinethe active ingredient in methamphetamineon the same day or within a few days of each other. The deputy had been monitoring the National Precursor Log Exchange (NPLEx), a privately-run electronic database housing all purchases of pseudoephedrine, commonly sold under the brand name Sudafed, in dozens of states.

At trial, several witnesses testified that they'd engaged in a practice known as "smurfing," purchasing pseudoephedrine to give to Mealor and another defendant, Cynthia Greenfield, in an effort to conceal the size of their purchases. Over objections, prosecutors also introduced the NPLEx logs for each of the defendants on trial and the witnesses.

Mealor was sentenced to nine years in prison, as was Greenfield. The appeals court initially found that his argument regarding the NPLEx logs had not been preserved for appeal, but later granted a petition for rehearing to address the issue on the merits.

Judge Aphrodite Konduros, writing for a unanimous panel, noted that South Carolina courts had never addressed whether NPLEx logs meet the business records exception to the rule against hearsay, which generally exempts any records that a business regularly creates and keeps in the course of its ordinary business activity. Mealor argued that the NPLEx logs shouldn't qualify for the exception because they were created only in anticipation of litigation.

But several U.S. Circuit Courts of Appealsthough not the 4th Circuit, which hears appeals from South Carolina's federal district courthave considered whether NPLEx or similar logs could be admitted into evidence and held that they can be. Those courts rejected arguments that the logs shouldn't qualify for the exception because they're prepared with a law enforcement purpose in mind and retailers keep the logs only because state law requires them to, even though they don't, and can't, use them for day-to-day business.

The appeals courts held that the reason why a record is created doesn't matter so long as the records are kept in the ordinary course of business, and that it's common for businesses to keep certain records solely to fulfill government regulations. Konduros noted that South Carolina also has a statute requiring retailers to make detailed records of sales of products containing pseudoephedrine and transmit those records to a data collection system similar to NPLEx.

"We agree with the above cited jurisdictions and find NPLEx logs are not created for litigation purposes and are admissible under the business records exception to the rule against hearsay," Konduros wrote. "The NPLEx records were created to comply with state statutes, not to investigate a specific case or individual. Thus, we find the trial court correctly did not abuse its discretion in finding the NPLEx records fall under the [exception]."

Ryan Andrews, of Cobb, Dill & Hammett in Mount Pleasant represented Mealor. Andrews said that he and his client plan on filing a petition for certiorari with the state Supreme Court.

"It's my position that NPLEx records are made in anticipation of litigation," Andrews said. "There's no other reason to have them created. In the facts in this case, Mr. Mealor was first investigated precisely because of these records, and so it's my opinion that they don't fall under the business records exception to the rule against hearsay."

The court's original opinion denying the appeals addressed another first impression issue related to the prosecution of methamphetamine production. The court held that a sheriff's captain was qualified to testify as an expert witness about the theoretical yield of methamphetamine that a person could produce from a specific amount of pseudoephedrine, even though the captain did not have any educational qualifications in chemistry.

The refiled and substituted opinion did not change any aspect of that portion of the court's ruling.

The 30-page decision is State v. Mealor (Lawyers Weekly No. 011-025-19). The full text of the opinion is available online at sclawyersweekly.com.

Follow David Donovan on Twitter @SCLWDonovan

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Title Annotation:interstate database of pseudoephedrine purchases, State v. Mealor, South Carolina Court of Appeals
Author:Donovan, David
Publication:South Carolina Lawyers Weekly
Date:Mar 7, 2019
Words:745
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