[Cite as State v. Lee, 2010-Ohio-6450.]




                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                      PICKAWAY COUNTY

State of Ohio,                              :                    Case No. 10CA12

        Plaintiff-Appellee,                 :

        v.                                  :                    DECISION AND
                                                                 JUDGMENT ENTRY
Donald Wayne Lee,                           :
                                                                 Released 12/21/10
     Defendant-Appellant.
______________________________________________________________________
                            APPEARANCES:

Michael D. Hess, Circleville, Ohio, for Appellant, Donald Wayne Lee.

Judy C. Wolford, Pickaway County Prosecutor, and Jayme Hartley Fountain, Pickaway
County Assistant Prosecutor, Circleville, Ohio, for Appellee, State of Ohio.

______________________________________________________________________
Harsha, J.

        {¶1}     Donald Lee appeals from his convictions for felonious assault and

domestic violence. Tammy Suttles, Lee’s roommate and romantic partner, claimed that

Lee brutally attacked her after she returned home from a bar. Lee denied attacking

Suttles and claimed that she was injured before she arrived home.

        {¶2}     On appeal, Lee contends that the trial court erred by admitting

unauthenticated medical records. However, the hospital certification contained

sufficient evidence to allow the jury to decide whether the accompanying records

belonged to the victim and related to the injuries she received on the date in question,

i.e., whether the records were what they purported to be. Therefore, the trial court

correctly admitted the records for the jury’s review.
Pickaway App. No. 10CA12                                                                     2


       {¶3}   Lee also argues that his conviction was against the manifest weight of the

evidence because investigating police officers found no injuries on his hands after the

attack occurred. However, this was the only fact in the record arguably indicating that

Lee may not have attacked Suttles. Substantial evidence supported Suttles’ testimony

that Lee attacked her. Accordingly, we affirm the judgment of the trial court.

                                 I. Summary of the Facts

       {¶4}   A grand jury indicted Lee on one count of felonious assault, a second

degree felony, and one count of domestic violence, a first degree misdemeanor. He

pleaded not guilty and was tried by jury, which returned a guilty verdict on both counts.

The trial court subsequently sentenced Lee to six years on the felonious assault count

and six months on the domestic violence charge, to be served concurrently.

       {¶5}   The transcript of the trial reveals that Lee and Suttles were involved in a

romantic relationship and lived together at Suttles’ trailer. After Suttles picked Lee up

from his workplace on the day of the attack, they purchased pizza and two forty-ounce

beers on their way home. Suttles testified that Lee began arguing with her in the car,

although Lee denied this.

       {¶6}   At the trailer, the two shared the beer and watched television. Suttles

claimed that Lee began to argue with her again and she decided to leave. Once more,

Lee denied that the two argued. He testified Suttles was quiet and he did not know why

she left. Lee said he continued to watch the football game that was on the television.

       {¶7}   Suttles testified that she drove her vehicle a couple blocks to a local bar.

She went into the bar, sat for two hours by herself, and consumed two beers. She then

drove back home.
Pickaway App. No. 10CA12                                                                    3


       {¶8}   Suttles claimed that she entered the trailer and immediately proceeded to

her bedroom in order to avoid speaking with Lee, but he followed her into the bedroom.

Lee then began attacking her – hitting and choking her. He eventually stopped,

apologized, and said he would call the police. Suttles told Lee that she would call the

police instead and ran to her neighbors’ trailer for help.

       {¶9}   Lee claimed that he heard Suttles’ vehicle pull up to the trailer. She then

“blew through the door” towards her bedroom. Lee noticed Suttles had blood smeared

on her face. When he tried to corner her in the bedroom to determine what was going

on, she spit blood on the floor and in his face. Lee stated that Suttles was screaming

and kicking and he grabbed her to try to calm her down. She then rubbed her face on

his gray sweatshirt, smearing it with blood. Lee explained that she may also have

scratched him as they were “tussling.” Lee testified that he turned to get a wash cloth

from the bathroom to clean her face but she ran out of the trailer. Lee could not explain

why Suttles would state that he hurt her, but alluded that she held a grudge because

she had called the police on him before and the police did nothing.

       {¶10} Jennifer Williams testified that she was a guest of a neighbor who owned

a nearby trailer. She observed Suttles come to the trailer door with her face covered in

blood and say “look what he did to me.” Suttles entered the trailer and Jennifer and

others washed the blood off her face. Eric Williams testified that Lee approached the

trailer soon after Suttles arrived and said “I didn’t do it.” Williams noted that Lee was

wearing a gray sweatshirt that had blood on the shoulder. Someone in the trailer

responded, “Well buddy you have blood all over your shirt.” Lee then left.
Pickaway App. No. 10CA12                                                                  4


      {¶11} Police arrived and began to investigate. Lee told Officer Doug Anderson

that his roommate had been in an altercation and had come home with blood on her

face. Lee informed Anderson that he had been wearing a white tee-shirt and a brown

flannel all day. He denied wearing any other upper body clothing. During his

investigation, Anderson located a gray sweatshirt that was turned inside out in a dirty

laundry hamper in the bedroom. It had bloody marks on the right shoulder.

      {¶12} Anderson and several other police officers inspected Lee’s hands and

found no evidence of any wounds or injuries, though they noticed some “old scabs.”

Anderson admitted on cross-examination that Lee appeared calm. Another officer

noted that he observed some scratches on Lee’s neck and under one of his eyes.

      {¶13} Sergeant Robert Chapman was the lead investigator on the case. At trial,

he noted that most of the injuries occurred on the right side of Suttles’ face and she had

sustained broken orbital bones. After meeting with Suttles and noting the severity of her

injuries, he determined that Lee should be charged with felonious assault as well as

domestic violence.

      {¶14} The jury chose to believe the state’s witnesses and found Lee guilty of

both counts.

                                    II. Assignments of Error

      {¶15} Lee presents the following two assignments of error:

      First Assignment of Error:

      DEFENDANT WAS DENIED HIS RIGHT OF CONFRONTATION AND CROSS
      EXAMINATION WHEN THE COURT ALLOWED UNAUTHENTICATED
      MEDICAL RECORDS INTO EVIDENCE ABSENT ANY DIRECT TESTIMONY.

      Second Assignment of Error:
Pickaway App. No. 10CA12                                                                        5


       APPELLANT’S CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF
       THE EVIDENCE.

                                  III. The Medical Records

       {¶16} In his first assignment of error, Lee argues that the trial court erroneously

allowed the state to introduce unauthenticated hospital records at trial. The state

contends that the records were properly authenticated, but even if they were not, there

was sufficient other evidence of Suttles’ injuries in the record to sustain the jury verdict.

                                    A. Failure to Object

       {¶17} Although neither party has raised the issue, we must first resolve whether

Lee has properly preserved this alleged error for our review, i.e., Lee never objected to

the admission of the medical records on the ground that they were not properly

authenticated.

       {¶18} During Suttles’ direct examination, the state produced medical records as

she was describing the injuries she received from the attack. Lee’s counsel objected

when the state asked her whether the records she received were “accurate.” The court

sustained this objection and Suttles continued discussing the extent of her injuries, but

without addressing the accuracy of the medical records. Before the close of the state’s

case when each exhibit was offered, Lee’s counsel posed no objection to the admission

of the medical records. Thus, we conclude Lee did not properly preserve the issue of

authentication. As a general rule, appellate courts will not review an alleged error that

was not objected to at trial at the time the error is said to have occurred. State v. Slagle

(1992), 65 Ohio St.3d 597, 604, 605 N.E.2d 916. “[The rule’s] purpose is practical: to

prevent the defensive trial tactic of remaining silent on a fatal error during trial with the
Pickaway App. No. 10CA12                                                                        6

expectation of demanding a reversal on appeal if the verdict is guilty.” State v. Craft

(1977), 52 Ohio App.2d 1, 4-5, 367 N.E.2d 1221.

       {¶19} However, in the context of criminal appeals, the harshness of this general

rule is mitigated by Crim.R. 52(B). “The rule provides that: ‘Plain errors or defects

affecting substantial rights may be noticed although they were not brought to the

attention of the court.’ This rule allows the appellate court, at the request of appellate

counsel or sua sponte, to consider a trial error that was not objected to when that error

was a ‘plain error.’” Slagle at 604, quoting Crim.R. 52(B).

       {¶20} For a reviewing court to find plain error: (1) there must be an error, i.e., “a

deviation from a legal rule”; (2) the error must be plain, i.e., “an ‘obvious' defect in the

trial proceedings”; and (3) the error must have affected “substantial rights,” i.e., it “must

have affected the outcome of the trial.” State v. Barnes, 94 Ohio St.3d 21, 27, 2002-

Ohio-68, 759 N.E.2d 1240. Furthermore, the Supreme Court of Ohio has stated that

“[n]otice of plain error under Crim.R. 52(B) is to be taken with the utmost caution, under

exceptional circumstances and only to prevent a manifest miscarriage of justice.” State

v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d 804, at paragraph three of the syllabus.

Based upon the lack of a proper objection, we review the admission of the medical

records for plain error.

                           B. Remote Authentication of Medical Records

       {¶21} Statements made outside of the courtroom, offered at trial to prove the

truth of what they assert, are generally inadmissible as “hearsay” unless an exception

applies. Evid.R. 801(C); Evid.R. 802; State v. DeMarco (1987), 31 Ohio St.3d 191, 195,

509 N.E.2d 1256. Medical records are admissible under the “records of regularly
Pickaway App. No. 10CA12                                                                     7


conducted activity” exception to the hearsay rule. Evid. R. 803(6). When a party offers

a record into evidence, the record must be properly identified or authenticated “by

evidence sufficient to support a finding that the matter in question is what its proponent

claims.” Evid.R. 901(A).

       {¶22} R.C. 2317.422 provides that hospital records can be properly

authenticated by a certification of the custodian of the hospital records. The statute

states in part:

       (A) * * * the records, or copies or photographs of the records, of a hospital,
       * * * in lieu of the testimony in open court of their custodian, person who
       made them, or person under whose supervision they were made, may be
       qualified as authentic evidence if any such person endorses thereon the
       person’s verified certification identifying such records, giving the mode and
       time of their preparation, and stating that they were prepared in the usual
       course of the business of the institution. Such records, copies, or
       photographs may not be qualified by certification as provided in this
       section unless the party intending to offer them delivers a copy of them, or
       of their relevant portions, to the attorney of record for each adverse party
       not less than five days before trial. Nothing in this section shall be
       construed to limit the right of any party to call the custodian, person who
       made such records, or person under whose supervision they were made,
       as a witness.

       {¶23} Thus, hospital records may be remotely authenticated if the custodian of

the records: (1) endorses on the records his or her certification identifying the records;

(2) gives the mode and time of the records’ preparation; and (3) states that the records

were prepared in the usual course of business. Additionally, the proponent must deliver

the records or the relevant portion of them to the opposing party at least five days

before trial.

       {¶24} Here, the certification page, signed by Lori Martin, “Patient Information

Director,” was dated and notarized on December 29, 2009. At the top of the form it

identifies Suttles as the patient, by name, date of birth, social security number, and her
Pickaway App. No. 10CA12                                                                  8


account number. It also provides “D.O.S. 10/17/2009,” which we presume means “Date

of Service” indicating the date Suttles was treated at Berger Health System. There is a

blank underlined space after “Number of pages being certified.” Below this, the form

states:

          The copies of records for which this certification is made are true and
          complete reproductions of the original medical records, which are housed
          in the Medical Records Department at Berger Health System located at
          600 North Pickaway St. Circleville Ohio, 43113. The original Records
          were made in the regular course of business and it was the regular course
          of business of the Berger Health System Medical Record Department to
          make such records at or near the time of the matter recorded. The
          custodian of the records in lieu of his/her personal appearance gives this
          certification pursuant.

          {¶25} Lee argues that the admitted medical records do not comply with R.C.

2317.422 for two reasons. First, Lee contends that the certification page did not

address the mode and time of preparation, only stating that the records were created “at

or near the time of the matter recorded.” The state contends that this certification is

sufficient.

          {¶26} We disagree with Lee that the certification form lacked a description

of the “mode and time” of the preparation of the medical records. The

certification states that the records were made by the Berger Health Medical

System Record Department “at or near the time of the matter recorded.” All the

pages of the medical records contain some reference to the date of “service” or

the date that the records were prepared. Thus, the mode, by the “Berger Health

Medical System Record Department,” and the time, “at or near the time of the

matter recorded” were sufficiently described in the certification form.
Pickaway App. No. 10CA12                                                                     9


       {¶27} Second, Lee argues that the certification form, by failing to indicate the

number of pages being certified, failed to sufficiently “identify the records” under R.C.

2317.422. The state contends that there is no requirement for listing the number of

certified pages under R.C. 2317.422. We agree that the certification form does not

identify what records are being certified either by describing the records or, at a

minimum, by identifying the number of pages within the certified packet of records.

However, we agree with the state that such an omission is not fatal.

       {¶28} The purpose of the authentication requirement is simply to establish that

the item is what the proponent of its admission purports it to be. See Evid.R. 901(A).

Moreover, under Evid.R. 901(A), the court does not decide whether the evidence is

authentic. That decision is left to the jury. The court’s role in this regard is that of a

“gatekeeper,” simply deciding if the proponent has presented enough evidence of

authentication to allow the jury to decide the authenticity of the document or exhibit.

See Giannelli & Snyder, Rules of Evidence Handbook (2009), Article IX, Authentication

and Identification, Authors’ Comments. Like most questions of admissibility, we entrust

this decision to the sound discretion of the trial court.

       {¶29} Evid.R. 901(B)(10) specifically provides for authentication by “[m]ethods

provided by statute or rule.” R.C. 2317.422 noted above establishes simplified methods

for authenticating hospital records in conjunction with Evid.R. 901(A). Thus, we must

simply determine whether the certification provided by the hospital complies with the

requirement in R.C. 2317.422 of “identifying such records,” i.e., to allow the factfinder to

determine whether they are what they purport to be.
Pickaway App. No. 10CA12                                                                    10


       {¶30} Here the certification includes: (1) the name of the patient, Tammy

Suttles; 2) her date of birth, 10/31/1963; 3) the patient’s account number,

BV0107349532; and 4) the D.O.S. (date of service), 10/17/2009. Almost without

exception, the records that follow the certification contain most of, if not all of, the same

information on their face. Thus, there can be little question that the records attached to

the certification belong to the victim and relate to injuries which she received, and for

which she was treated, on October 17, 2009. This foundational evidence clearly passes

the authentication requirements of Evid.R. 901(A) and R.C. 2317.422.

       {¶31} That being the case, it is equally clear there can be no plain error in the

absence of any error whatsoever. Barnes, supra, at 27.

       {¶32} Moreover, assuming solely for the sake of argument that our analysis is

incorrect, no plain error exists because exclusion of the hospital records would not have

changed the outcome of the trial.

       {¶33} Here, the medical records arguably aided the state in proving the “serious

physical harm” element of felonious assault and the “physical harm” element of

domestic violence as they describe Suttles’ injuries in great detail. However as we note

under the second assignment of error, there was substantial other evidence that proved

serious physical harm beyond a reasonable doubt. Specifically, Suttles testified about

the injuries she received and a number of grisly photographs were admitted depicting

their severity. Clearly, the jury had other reliable evidence upon which it could have

determined, beyond a reasonable doubt, that Lee caused serious physical harm to

Suttles. We are confident that the exclusion of these records would have had no effect
Pickaway App. No. 10CA12                                                                      11


on the ultimate jury verdict, i.e., the admission of the medical records was not “outcome

determinative” as required by Barnes, supra, at 28.

       {¶34} In sum, we hold that no error occurred in the trial court’s admission of the

medical records. And, assuming without deciding that the certification form insufficiently

identified the records it was certifying, the exclusion of the records would have had no

effect on the outcome of the trial. Consequently, this assignment of error is meritless.

                                IV. Manifest Weight of the Evidence

       {¶35} In his second assignment of error, Lee challenges the jury’s guilty verdicts

as being against the manifest weight of the evidence. Specifically, he argues that the

evidence demonstrated that he had no visible injuries on his hands. He contends that

his hands would have had some injuries after delivering damaging blows to Suttles’

face. He also argues that there was “little or no blood” found in the bedroom, which

supports his version of events at trial, i.e., that the attack did not take place in the trailer.

       {¶36} The state argues that the greater weight of evidence supports Lee’s

conviction. The state notes that: (1) Suttles testified unequivocally that Lee attacked

her; (2) blood evidence was located in the bedroom where Suttles alleged she was

attacked; (3) Lee’s gray sweatshirt had blood on it; and (4) Lee initially lied about

wearing the sweatshirt when the attack took place. In sum, the state argues that it

presented an “exhorbitant” amount of evidence demonstrating that Lee committed the

crimes and the only evidence that remotely weighs in Lee’s favor was the absence of

injuries on his hands.

       {¶37} In determining whether a criminal conviction is against the manifest weight

of the evidence, an appellate court must review the entire record, weigh the evidence
Pickaway App. No. 10CA12                                                                      12


and all reasonable inferences, consider the credibility of witnesses and determine

whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be reversed.

State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541, citing

State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717. A reviewing court

“may not reverse a conviction when there is substantial evidence upon which the trial

court could reasonably conclude that all elements of the offense have been proven

beyond a reasonable doubt.” State v. Johnson (1991), 58 Ohio St.3d 40, 42, 567 N.E.2d

266, citing State v. Eskridge (1988), 38 Ohio St.3d 56, 526 N.E.2d 304, at paragraph

two of the syllabus.

       {¶38} Even in our role as a thirteenth juror, we are constrained by the rule that

the weight to be given evidence and the credibility to be afforded testimony are issues

ordinarily to be determined by the trier of fact. State v. DeHass (1967), 10 Ohio St.2d

230, 227 N.E.2d 212, at paragraph one of the syllabus. The fact-finder “is best able to

view the witnesses and observe their demeanor, gestures and voice inflections, and use

these observations in weighing the credibility of the proffered testimony.” Seasons Coal

Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (per curiam). Thus, we

will only interfere if the fact-finder clearly lost its way and created a manifest miscarriage

of justice.

       {¶39} We have reviewed the entire trial record and are confident that the jury did

not “lose its way” in finding Lee guilty of felonious assault and domestic violence.

       {¶40} Suttles testified that Lee attacked her in her bedroom. Consistent with this

claim are photographs of the bedroom – clearly showing a significant amount of blood
Pickaway App. No. 10CA12                                                                     13


and blood “splatter” in various parts of the bedroom. Grisly photographs also depict

Suttles on the evening of the accident with significant injuries to the right side of her

face and a large amount of swelling over her entire face. Police found no blood in the

car that Suttles drove home from the bar.

           {¶41} Soon after the alleged attack, Lee was observed by a witness wearing a

gray sweatshirt with blood on the right shoulder. He was not wearing the sweatshirt

later when police arrived to investigate. He claimed having only worn a white undershirt

and brown flannel. Lee admitted that he “forgot” he was wearing the blood-stained gray

sweatshirt after police found it lying inside-out in a dirty laundry hamper inside the

trailer.

           {¶42} Lee claimed that Suttles spat blood in the bedroom in a sort of hysteria

(we are uncertain whether spitting blood could reproduce blood “splatter”; there was no

evidence in the record in this regard at trial). Lee could not satisfactorily explain,

however, why Suttles would attempt to “frame” him, how she could arrive home in a car

with such injuries without getting blood in the interior of the car, or why he “forgot” he

was wearing the gray sweatshirt during the incident.

           {¶43} The lack of any apparent injuries on Lee’s hands that night could be some

evidence that he did not repeatedly and forcefully hit Suttles that night. This, however,

was the only evidence that could reasonably weigh in Lee’s favor. The jurors could also

reasonably conclude that Lee attacked Suttles without sustaining apparent injuries on

his hands.

           {¶44} The jurors clearly chose to believe Suttles’ version of events, which was

supported by substantial evidence. Evidence indicating that Lee did not commit the
Pickaway App. No. 10CA12                                                                  14


crime was minimal at best. This is not one of the rare cases where the jurors clearly

lost their way in arriving at a guilty verdict. Accordingly we overrule this assignment of

error.

                                       V. Conclusion

         {¶45} No error, plain or otherwise, occurred when the trial court admitted the

medical records; Lee’s convictions for felonious assault and domestic violence are not

against the manifest weight of the evidence. Consequently, we affirm the judgment of

the trial court.

                                                                 JUDGMENT AFFIRMED.
Pickaway App. No. 10CA12                                                                    15


                                    JUDGMENT ENTRY

         It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.

         The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Pickaway
County Common Pleas Court to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.

Abele, J. & Kline, J.: Concur in Judgment and Opinion.

                                            For the Court


                                            BY: ________________________
                                                William H. Harsha, Judge




                                  NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
