State v. Mealor

825 S.E.2d 53

The STATE, Respondent,

v.Michael Levant MEALOR, Appellant.

Appellate Case No. 2013-002752

Opinion No. 5590

Court of Appeals of South Carolina.

Heard February 7, 2018

Filed August 15, 2018

Withdrawn, Substituted, and Refiled February 27, 2019

Ryan Christopher Andrews, of Cobb, Dill & Hammett, LLC, of Mount Pleasant; and Chief Appellate Defender Robert Michael Dudek, of Columbia, both for Appellant.

Attorney General Alan McCrory Wilson and Senior Assistant Deputy Attorney General Deborah R.J. Shupe, both of Columbia; and Solicitor William Walter Wilkins, III, of Greenville, all for Respondent.

KONDUROS, J.:

Michael Levant Mealor (Mealor) appeals his conviction of trafficking methamphetamine in the amount of twenty-eight grams or more but less than one hundred grams. He contends the trial court erred in permitting the introduction of logs from a national database of pseudoephedrine sales. He also argues the trial court erred in allowing testimony on the theoretical yield of methamphetamine from the amount of pseudoephedrine allegedly purchased by or for him. Additionally, Mealor maintains the trial court erred in denying his motion for a directed verdict. We affirm.

FACTS

John Ross, a volunteer reserve deputy for the Pickens County Sheriff's Office (the Office), monitored the National Precursor Log Exchange (NPLEx)¹ for the Office. Ross noticed a trend of individuals with the same address purchasing pseudoephedrine on the same day or within a few days of each other.² He suspected those individuals were "smurfing," which is the practice in which methamphetamine manufacturers will recruit others to purchase pseudoephedrine for them in exchange for money or drugs due to limits on how much pseudoephedrine a person can purchase.³ Ross began monitoring those individuals' purchases and signed up to receive notifications in NPLEx for any attempted purchases by them. The Office also began surveilling those individuals.

In November 2011, officers received notice Mealor had purchased pseudoephedrine at a pharmacy. Officers went to the pharmacy and observed a car associated with the case parked at another pharmacy across the street. The officers waited and observed Cynthia Greenfield⁴ exit the store. The officers then received a notification Greenfield had purchased pseudoephedrine. The officers followed the car anticipating the occupants might go to a hardware store to get supplies for making methamphetamine. However, the car instead drove toward the residence, traveling over forty miles per hour in a twenty-five-miles-per-hour speed limit zone. The officers initiated a traffic stop for speeding. Amanda Hayes Hurley was driving and Daniel Ray Hurley, Mealor, and Greenfield were passengers along with infant children. Amanda had a suspended license, and the officers asked for her permission to search the vehicle, which she gave. The officers found two boxes of cold medicine containing pseudoephedrine—the same boxes for which the officers had received the earlier alerts.

In June 2012, officers arrested many of the individuals they believed were involved. On December 10, 2013, the grand jury indicted Mealor on one count of trafficking over one hundred grams of methamphetamine. Trial began on December 16, 2013, for Mealor, Greenfield,⁵ and Hayes, who is Mealor's sister as well as Amanda's mother. Many witnesses testified about activities relating to methamphetamine occurring at a house owned by Louise Mealor—Mealor and Hayes's mother—and indicated Mealor, Greenfield, and Hayes all lived in the house. Other witnesses testified Jason Mealor —Hayes's son—and his then girlfriend, Melissa Wardlaw, also lived in the house.

Multiple witnesses⁶ testified about buying medicines with pseudoephedrine to give to Mealor or Greenfield. Rebecca Crisp testified she gave pseudoephedrine she purchased to Hayes, who put it in the bedroom Mealor and Greenfield used. A few of those witnesses indicated they bought some of the pseudoephedrine to treat allergy or sinus problems for themselves, their children, or other family members. Several witnesses testified they would receive methamphetamine from Mealor or Greenfield after they gave them pseudoephedrine they bought. A few witnesses stated they received other drugs or money in return. One witness testified about going to various pharmacies with Mealor and Greenfield to buy pseudoephedrine. Many witnesses also testified about using methamphetamine with them or seeing it used at their home. Several witnesses testified about different supplies that are used in making methamphetamine, such as plastic bottles, batteries, ether, and big bottles of Coleman fuel. One witness indicated she asked Greenfield why she had so many plastic bottles and was told it was because Greenfield and Mealor could feel them expand unlike with glass. Some witnesses also testified the place had a toxic or strong smell. One witness indicated Greenfield told her "the less [you] know, the better off [she] was" when she asked about the smell. Some witnesses testified Greenfield and Mealor told them they were going to make methamphetamine so it would be a cleaner product than what they were buying as well as cheaper. Angela Armstrong testified she knew Mealor and Greenfield would be making methamphetamine out of the pseudoephedrine she gave them because they told her they were. Wardlaw testified Greenfield and Mealor told her they could make methamphetamine. Thomas Rooney testified he saw Mealor and Greenfield making methamphetamine in their bedroom in the house several times. Rooney stated the process of making methamphetamine has a strong smell and causes the place where it is being manufactured to become "really smoky." He indicated he had seen Mealor and Greenfield shaking plastic drink bottles to make the methamphetamine. Billy Miller testified that when he gave Mealor and Greenfield the pseudoephedrine they told him they were going to make methamphetamine out of it.

The State presented testimony from Paul Forst, a business data analyst employed by Appriss, the company that maintains the NPLEx database. He indicated he was the records custodian for the logs. Over objections, the State introduced the NPLEx record for each of the defendants on trial and the witnesses and others charged with the same offenses. The NPLEx record for Mealor shows he purchased 69.36 grams and was blocked from purchasing it seven times for a total of thirty-seven attempts during 2011. The NPLEx record for Greenfield shows she purchased 68.64 grams and was blocked from purchasing it an additional five times for a total of thirty-four attempts in the same time period.

Captain Chad Brooks with the Office also testified. He provided he had been involved in the seizure of close to two hundred methamphetamine labs. He indicated he had manufactured methamphetamine once in a lab setting. He stated he was trained how to calculate the yield that could be produced from a particular amount of pseudoephedrine.⁷ Captain Brooks testified 92% was about the highest yield one could obtain and 40 to 50% is the lowest yield amount one could obtain "assuming it doesn't flash fire and assuming you['re] successful." He indicated 40% was the "worst case scenario." The yield percentage depends on a lot of factors such as how long one waited for the extraction to occur and spillage. He testified the things normally observed at a home lab are sulfuric acid (drain cleaner), coffee filters, funnels, bottles, Xylene, ether, starter fluid cans, cut batteries, medication blister packs, and burn piles. He testified the labs are "very portable and easy to dispose of." He also testified producing methamphetamine creates a distinct smell. Captain Brooks testified on cross-examination he did not find any methamphetamine manufacturing equipment at the scene or on any of the defendants.

At the close of the State's case, Greenfield moved for a directed verdict and Mealor joined in that motion. They contended only one witness testified he saw Greenfield and Mealor make methamphetamine. They asserted because trafficking requires at least ten grams of methamphetamine and the State presented no evidence of any particular amount of methamphetamine, the State's case was speculative. Mealor also argued that assuming a 40% yield from the pseudoephedrine witnesses indicated they gave him and Greenfield, the result would be sixty-three grams of methamphetamine, which was less than the charge for which they were on trial—trafficking one hundred grams. The trial court denied the motion for a directed verdict on trafficking under one hundred grams but took under advisement trafficking over one hundred grams.

Mealor and Greenfield both testified in their own defense. They both stated all of the pseudoephedrine they bought was to treat their allergy and sinus problems. They both indicated they had a problem with others stealing some of the pseudoephedrine they bought. Mealor testified he had been using Sudafed since he was thirteen years old due to his doctor's recommendation at the time. He also provided he did not have a way to get to the store, so he would buy pseudoephedrine whenever someone drove him to the store. He agreed that according to the NPLEx records, he bought 69.36 grams of pseudoephedrine in 2011, which was under the limit of 108 grams that one person could legally buy in one year. Greenfield admitted to attempting to buy pseudoephedrine thirty-four times in 2011, including the times she was blocked for being over the monthly limit.

Mealor explained on cross-examination he and Greenfield often purchased pseudoephedrine at the same store around the same time because they "stayed together all the time. [They] never left each other's side." He contended the fact he bought pseudoephedrine at the same pharmacy or a nearby pharmacy within a short period of time (i.e. thirty minutes) of many of the witnesses was a coincidence. Greenfield asserted the same. Greenfield also testified she bought...