          [Cite as State v. Phillips, 2014-Ohio-2614.]

                            IN THE COURT OF APPEALS
                   FIRST APPELLATE DISTRICT OF OHIO
                              HAMILTON COUNTY, OHIO




CITY OF CINCINNATI,                                  :   APPEAL NO. C-130460
                                                         TRIAL NO. 13CRB-11292
         Plaintiff-Appellee,                         :

   vs.                                               :       O P I N I O N.

JERRY PHILLIPS,                                      :

         Defendant-Appellant.                        :



Civil Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Reversed and Appellant Discharged

Date of Judgment Entry on Appeal: June 18, 2014



Terrance Nestor, Interim City Solicitor, Charlie Rubenstein, City Prosecutor, and
Christopher Liu, Assistant City Prosecutor, for Plaintiff-Appellee,

Raymon T. Faller, Hamilton County Public Defender, and Josh Thompson, Assistant
Public Defender, for Defendant-Appellant.



Please note: this case has been removed from the accelerated calendar.
                      OHIO FIRST DISTRICT COURT OF APPEALS




HILDEBRANDT, Judge.

       {¶1}   Bringing forth three assignments of error, defendant-appellant Jerry

Phillips appeals the trial court’s judgment convicting him of violating a protection

order. Because there was insufficient evidence demonstrating that the protection

order had been served upon Phillips, we reverse the judgment of the trial court and

discharge Phillips.

       {¶2}   In his first assignment of error, Phillips contends that the trial court

erred by admitting into evidence, over his objection, the city’s exhibit entitled

“County Writ Hamilton County Sheriff’s Department.” This exhibit was meant to

demonstrate that Phillips had been personally served with a copy of the protection

order. We sustain the assignment of error because the exhibit was not properly

authenticated prior to being admitted into evidence.

       {¶3}   Here, the city and Phillips agree that the exhibit is a public record.

Therefore, we look to Evid.R. 1005 to determine whether it was properly

authenticated. See State v. Skimmerhorn, 162 Ohio App.3d 762, 2005-Ohio-4300,

835 N.E.2d 52, reversed and remanded on other grounds, 108 Ohio St.3d 103,

2006-Ohio-164, 840 N.E.2d 1077. Evid.R. 1005 provides that “the contents of an

official record * * * may be proved by copy, certified as correct in accordance with

Rule 902, Civ.R. 44, Crim.R. 27 or testified to be correct by a witness who has

compared it with the original.”

       {¶4}   Here, the exhibit, which was a printout of a public record from the

clerk of court’s website, was not a certified copy as required by Evid.R. 902(4). Nor

was it certified as correct in accordance with Crim.R. 27, which provides that a copy




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                     OHIO FIRST DISTRICT COURT OF APPEALS



is admissible where it bears the seal of the public officer who has custody of the

record. Although the city argues that the exhibit bears a photocopied seal, we have

held that a photocopy of a seal will not suffice to “self-authenticate” a public record

under the Rules of Evidence. Skimmerhorn at ¶ 21. We also note that there was no

testimony by a person who had seen the original of the exhibit and compared it with

the copy.

       {¶5}   Because the exhibit was not properly authenticated as required by

Evid.R. 1005, we hold that the exhibit was inadmissible, and thus, the trial court

abused its discretion by admitting it. The first assignment of error is sustained.

       {¶6}   In his second assignment of error, Phillips contests the sufficiency of

the evidence underlying his conviction. This assignment has merit.

       {¶7}   Phillips was convicted under R.C. 2919.27(A)(1), which provides that

no person may recklessly violate a protection order issued pursuant to R.C. 3113.31.

R.C. 3113.31(F)(1) requires that the court “direct that a copy of an order be delivered

to the respondent on the same day that the [protection] order is entered.” Because

we have determined that the exhibit purporting to demonstrate that the protection

order had been served upon Phillips was inadmissible, there is no evidence in the

record to demonstrate that Phillips had been served with the protection order.

Consequently, there was no protection order issued in accordance with R.C. 3113.31.

Therefore, Phillips’s conviction for violating a protection order issued in accordance

with R.C. 3113.31 must be reversed. We sustain the second assignment of error.

       {¶8}   Because of our resolution of the first two assignments of error, the

third assignment of error challenging the weight of the evidence underlying Phillips’s

conviction is moot and we do not address it.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶9}    The judgment of the trial court convicting Phillips’s of violating a

protection order is reversed, and Phillips is hereby discharged.

                                          Judgment reversed and appellant discharged.



CUNNINGHAM, P.J., and DINKELACKER, J., concur.



Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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