[Cite as State v. Alston, 2015-Ohio-4127.]


STATE OF OHIO                     )                 IN THE COURT OF APPEALS
                                  )ss:              NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

STATE OF OHIO                                       C.A. No.       14CA010612

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
ELIA ALSTON                                         COURT OF COMMON PLEAS
                                                    COUNTY OF LORAIN, OHIO
        Appellant                                   CASE No.   12CR085630


                                  DECISION AND JOURNAL ENTRY

Dated: October 5, 2015



        MOORE, Judge.

        {¶1}     Appellant, Elia Alston, appeals his convictions by the Lorain County Court of

Common Pleas. This Court affirms.

                                               I.

        {¶2}     On a summer night in 2012, L.N. ran to her next door neighbor’s house around

midnight, knocked on the door, and ran inside. L.N. was frightened and appeared to have been

attacked, so her neighbors called the police. L.N. was transported to the emergency room, and

police searched for Mr. Alston, with whom she had been living and against whom a protection

order had previously been issued. Mr. Alston was charged with felonious assault in violation of

R.C. 2903.11(A)(1), domestic violence in violation of R.C. 2919.25(A), and violating a protection

order in violation of R.C. 2919.27(A)(1). The charges were also accompanied by a repeat violent

offender specification pursuant to R.C. 2941.149.
                                                2


       {¶3}    A jury found Mr. Alston guilty of the charges, and the trial court found him to be a

repeat violent offender. The trial court merged the convictions for felonious assault and domestic

violence for purposes of sentencing and sentenced Mr. Alston to two years in prison. Mr. Alston

appealed.

                                                II.

                                 ASSIGNMENT OF ERROR I

       THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW TO
       SUPPORT A FINDING BEYOND A REASONABLE DOUBT THAT [MR.
       ALSTON] WAS GUILTY[.]

       {¶4}    Mr. Alston’s first assignment of error is that there was insufficient evidence to

demonstrate beyond a reasonable doubt that L.N. sustained serious physical harm. We disagree.

       {¶5}    “Whether a conviction is supported by sufficient evidence is a question of law that

this Court reviews de novo.” State v. Williams, 9th Dist. Summit No. 24731, 2009-Ohio-6955, ¶

18, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). The relevant inquiry is whether the

prosecution has met its burden of production by presenting sufficient evidence to sustain a

conviction. Thompkins, at 390 (Cook, J., concurring). In reviewing the evidence, we do not

evaluate credibility, and we make all reasonable inferences in favor of the State. State v. Jenks,

61 Ohio St.3d 259, 273 (1991). The State’s evidence is sufficient if it allows the trier of fact to

reasonably conclude that the essential elements of the crime were proven beyond a reasonable

doubt. Id.

       {¶6}    Mr. Alston was convicted of domestic violence in violation of R.C. 2919.25(A),

which prohibits any person from knowingly causing or attempting to cause physical harm to a

family or household member. In his merit brief, he combined his sufficiency argument to include

both domestic violence and felonious assault, arguing that both charges required the state to prove
                                                 3


“serious physical harm.” On its face, R.C. 2919.25(A) does not require the State to prove that a

victim suffered serious physical harm, so Mr. Alston’s argument with respect to his domestic

violence conviction is misplaced.

       {¶7}    He was also convicted of felonious assault in violation of R.C. 2903.11(A)(1),

which provides that “[n]o person shall knowingly * * * [c]ause serious physical harm to another

or to another’s unborn[.]” “‘Physical harm to persons’ means any injury, illness, or other

physiological impairment, regardless of its gravity or duration.” R.C. 2901.01(A)(3). Under R.C.

2901.01(A)(5), “serious physical harm to persons” is defined as:

       (a) Any mental illness or condition of such gravity as would normally require
       hospitalization or prolonged psychiatric treatment;

        (b) Any physical harm that carries a substantial risk of death;

       (c) Any physical harm that involves some permanent incapacity, whether partial
       or total, or that involves some temporary, substantial incapacity;

        (d) Any physical harm that involves some permanent disfigurement or that
       involves some temporary, serious disfigurement;

        (e) Any physical harm that involves acute pain of such duration as to result in
       substantial suffering or that involves any degree of prolonged or intractable pain.

The State need not present expert medical testimony to demonstrate serious physical harm, and it

can be inferred when the victim’s injuries are serious enough that the victim seeks medical

treatment. State v. Higgins, 9th Dist. Summit No. 26120, 2012-Ohio-5650, ¶ 17.

       {¶8}    In this case, the jury could reasonably conclude that the State proved beyond a

reasonable doubt that Lydia Nagy sustained serious physical harm. L.N.’s neighbor testified that

L.N. knocked on her door and ran into her house around midnight. According to the neighbor,

L.N. was “bloody” and “hysterically scared.” She also described L.N.’s appearance, noting that

“her eye was swollen shut. It seemed like she was missing teeth. She had knuckle imprints on her

face.” Officer Eli Andujar, the first responder to the scene, provided a similar description. He
                                                 4


recalled that L.N.’s appearance was “just bludgeoned,” and he testified that “She was bleeding.

Her eyes were closed shut. It appeared she had either a slap mark or a fist mark on the right side

of her face and her left eye was totally closed.” Officer Andujar also observed that L.N. “was

bleeding from her mouth” and “was in a total disarray.” In Officer Andujar’s opinion, L.N.

“definitely * * * needed * * * emergency help.” Photographs taken by officers at the scene and

admitted into evidence vividly confirm the extent of the injuries to L.N.’s face. Following the

incident, L.N. was admitted to the hospital.

       {¶9}     The testimony of the witnesses who observed the extent of L.N.’s injuries at trial,

along with the photographs that depict those injuries, are sufficient to permit a trier of fact to

reasonably conclude that she suffered serious physical harm. Mr. Alston’s first assignment of error

is overruled.

                                 ASSIGNMENT OF ERROR II

       [MR. ALSTON’S] CONVICTION IS AGAINST THE MANIFEST WEIGHT OF
       THE EVIDENCE[.]

       {¶10} Mr. Alston’s second assignment of error is that the jury’s conclusion that he is the

person responsible for the attack on L.N. is against the manifest weight of the evidence. We

disagree.

       {¶11} When considering whether a conviction is against the manifest weight of the

evidence, this Court must:

       review the entire record, weigh the evidence 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 and a new trial ordered.

State v. Otten, 33 Ohio App.3d 339, 340 (1986). A reversal on this basis is reserved for the

exceptional case in which the evidence weighs heavily against the conviction. Id., citing State v.
                                                 5


Martin, 20 Ohio App.3d 172, 175 (1st.Dist.1983).           In our analysis, we are mindful that

“[c]ircumstantial evidence and direct evidence inherently possess the same probative value[.]”

Jenks, 61 Ohio St.3d at paragraph one of the syllabus.

       {¶12} At trial, a neighbor testified that L.N. ran to her house in a state that she described

as “hysterically scared” and said, “[h]e’s trying to kill me.” The neighbor recalled that as she

hurried L.N. into the kitchen to call the police, Mr. Alston approached the house and tried to enter.

The police officers who responded testified that Mr. Alston fled the scene thereafter and that when

they searched his residence, they found it empty. Police photographs admitted into evidence depict

the extent of L.N.’s injuries and that fact that they were recently inflicted at the time the

photographs were taken. Another photograph, taken to document the condition of her hands in

case it was alleged that she had been an aggressor in a physical conflict, depicts no injuries.

       {¶13} Mr. Alston has argued that the injuries sustained by L.N. were not inflicted by him,

but by an unknown woman with whom she had a fight in a bar. Mr. Alston testified in his own

defense and stated that he allowed L.N. to live with him despite the protection order against him

because she did not have anywhere else to go. He testified that on the day of the attack, she bought

supplies to dye her hair and was gone when he returned home from work. According to Mr. Alston,

L.N. got home after midnight, told him that she had gotten into a fight with some women at a bar,

then ran next door when he tried to leave the house to get away from her. Mr. Alston testified that

he fled because he knew that he was in violation of the protection order. He recalled that L.N. was

intoxicated, the single point at which his testimony is consistent with that
                                                  6


of Officer Andujar.

       {¶14} Three of Mr. Alston’s family members also testified, although none of them

witnessed the attack or had any interaction with L.N. immediately after. Mr. Alston’s sister

testified that two weeks later, L.N. told her that she got into a fight at a bar. His cousin, on the

other hand, testified that one week later, L.N. told him that she fell while she was at a bar. Another

cousin testified that Mr. Alston sometimes walked away from L.N. during a conflict.

       {¶15} This Court has reviewed the entire record in light of the credibility of the witnesses,

several of whom are related to Mr. Alston and some of whom have extensive criminal records in

their own right. Given the evidence at trial, we cannot conclude that this is the exceptional case

in which a new trial is warranted. Mr. Alston’s second assignment of error is overruled.

                                 ASSIGNMENT OF ERROR III

       [THE] TRIAL COURT ERRED IN ADMITTING VICTIM’S MEDICAL
       RECORDS AND THE HEARSAY WITHIN THE RECORDS.

       {¶16} In his third assignment of error, Mr. Alston argues that the trial court erred by

admitting L.N.’s medical records to the extent that they contained hearsay statements describing

the extent of her injuries and implicating him as the perpetrator. We disagree.

       {¶17} Under Evid.R. 803(6), business records are excepted from the hearsay rule. Mr.

Alston does not dispute that the medical records at issue were adequately authenticated or that they

are business records, but he maintains that the Court erred nonetheless in admitting the records

without the accompanying testimony of the medical professionals responsible for the diagnoses

contained therein. Mr. Alston has not directed this Court to any authority for the proposition that

the properly authenticated business records of a hospital must be accompanied by expert

testimony. To the contrary, this Court has concluded that properly authenticated medical records

are admissible as business records under Evid.R. 803(6) without offending a defendant’s right to
                                                 7


confront witnesses because those records are not testimonial in nature. State v. Tolbert, 9th Dist.

Summit No. 24958, 2010-Ohio-2864, ¶ 12. Regardless, we observe that as set forth in our

discussion of Mr. Alston’s first assignment of error, the State presented sufficient evidence to

establish serious physical harm even without consideration of L.N.’s medical records.

       {¶18} Mr. Alston has also argued that statements made by L.N. to her medical providers

that identified him as the perpetrator should not have been admitted. Evid.R. 803(4) provides that

“[s]tatements made for purposes of medical diagnosis or treatment and describing medical history,

or past or present symptoms, pain, or sensations, or the inception or general character of the cause

or external source thereof insofar as reasonably pertinent to diagnosis or treatment” are exceptions

to the hearsay rule. While this exception does not permit the admission of any and all statements

made during a medical examination, this Court has concluded that statements made by a victim of

domestic violence in the course of emergency treatment fall within the medical records exception

of Evid.R. 803(4). State v. Flowers, 9th Dist. Summit No. 25841, 2012-Ohio-3783, ¶ 23-25.

       {¶19} Mr. Alston’s third assignment of error is overruled.

                                ASSIGNMENT OF ERROR IV

       [MR. ALSTON] WAS NOT AFFORDED THE EFFECTIVE ASSISTANCE OF
       TRIAL COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT OF THE
       UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE
       OHIO CONSTITUTION[.]

       {¶20} In his final assignment of error, Mr. Alston argues that he received ineffective

assistance of counsel because his attorney failed to introduce into evidence a letter purportedly

written by L.N. Mr. Alston’s ineffective assistance argument cannot be determined in the context

of a direct appeal.

       {¶21} When an appellant argues that trial counsel was ineffective based on evidence that

is outside the trial court record, it is “impossible” for this Court to determine the merits of the
                                                 8


argument. State v. Gibson, 69 Ohio App.2d 91, 95 (8th Dist.1980). Such arguments are more

appropriately raised by means of a petition for postconviction relief. Id. Mr. Alston’s ineffective

assistance argument relies entirely on the purported contents of a letter that was referenced in

passing during one witness’s testimony but not admitted into evidence at trial. As such, he cannot

demonstrate whether trial counsel was ineffective in the context of this appeal. Id.

       {¶22} Mr. Alston’s fourth assignment of error is overruled.

                                                III.

       {¶23} Mr. Alston’s assignments of error are overruled. The judgment of the Lorain

County Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.

       Costs taxed to Appellant.
                                           9



                                                 CARLA MOORE
                                                 FOR THE COURT



HENSAL, P. J.
SCHAFER, J.
CONCUR.


APPEARANCES:

KARRI A. KING, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and NATASHA RUIZ GUERRIERI, Assistant
Prosecuting Attorney, for Appellee.
