COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72568 STATE OF OHIO : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION HONG ZHAO : : DEFENDANT-APPELLANT : : : DATE OF ANNOUNCEMENT OF DECISION: MAY 14, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas, Case No. CR-344702. JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Dean M. Boland Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: Dale M. Hartman, Esq. 950 Leader Building East Sixth and Superior Avenue Cleveland, Ohio 44114 -2- SWEENEY, JAMES D., J.: Defendant-appellant Hong Zhao aka Howard Zhao appeals his conviction for aggravated theft in violation of R.C. 2913.02. The appellant was sentenced to a term of seventeen months incarceration, fined $2,500, and ordered to serve three years of post-release control. While the jury found that the value of the property involved was more than $5,000 but less than $100,000, the court determined that the appellant should pay restitution in the amount of $99,999. Subsequent to the filing of this appeal, the trial court amended the sentence. The court imposed a term of two years incarceration, ordered restitution in the amount of $99,999, and suspended the $2,500 fine. The appellant and the victim, Mr. Al Gene Caraulia, entered into a business arrangement whereby a corporation was formed for the purpose of marketing computer generated imaging to assist athletic participants to better their performance. The victim and the appellant were each fifty-percent owners of the corporation. In this partnership, Mr. Caraulia testified that he was to provide the marketing and the money for this venture, and the appellant was to provide the computer expertise. Towards that end, Mr. Caraulia issued checks to Compugenesis which totaled approximately $142,425.00. The State presented the testimony of Mr. Dabrovic, the records custodian at National City Bank. Mr. Dabrovic authenticated the Compugenesis bank account statements and copies of the underlying checks the State sought to introduce (T. 385-404). Mr. Dabrovic -3- testified that the appellant held an account at National City Bank under the name of Compugenesis dba Howard Zhoa. No evidence of a separate corporate account was introduced. The victim issued checks to the appellant, in various amounts, between September 1992 and June 1993. Also during this time period, the appellant issued checks from the Compugenesis account to various entities. The appellant failed to elicit testimony from Mr. Dabrovic regarding allegedly exculpatory checks written by him from the Compugenesis account. These allegedly exculpatory checks, totaling approximately $62,555.28, were proffered into the record. The appellant attempted to introduce these allegedly exculpatory checks during the testimony of Cleveland Police Detective Joseph Chojnowski. The appellant cross-examined the detective, asking whether or not these checks had been reviewed during the course of the police investigation. The State objected, arguing that the checks had not been authenticated. The trial court sustained the State's objections and prohibited this line of questioning. Although Mr. Caraulia testified that he visited the appellant's apartment and observed computer equipment, he was unable to estimate its worth. In the Fall of 1993, Mr. Caraulia requested from the appellant an inventory of the computer hardware and software purchased for their venture. The appellant failed to respond and, subsequently, criminal charges were filed against the appellant. -4- The appellant sets forth eight assignments of error, the fourth of which will be considered first. The appellant's fourth assignment of error: THE TRIAL COURT ERRED IN FAILING TO ALLOW THE USE OF DEFENSE EXHIBITS 8-A THROUGH Y FOR SUBSTANTIVE PURPOSES, FOR IMPEACHMENT PURPOSES AND/OR TO REFRESH RECOLLECTION. The appellant argues that the trial court erred in refusing to permit the exculpatory checks to be used substantively, for impeachment, or to refresh the recollection of Detective Chojnowksi. The appellant asserts that the checks were sufficiently authenticated by Mr. Dabrovic so as to be admissible. Further, the appellant states that the evidence was relevant and that its admission would have furthered the administration of justice. The admission of relevant evidence is within the discretion of the trial court. State v. Sage (1987), 31 Ohio St.3d 173, syllabus 2; State v. Blankenship (1995), 102 Ohio App.3d 534, 549. To resolve the issues presented herein, this court must consider several evidentiary rules. To begin with, Evid.R. 801(A) states that hearsay may be either an oral or written assertion. Hearsay is defined a statement, other than one made by the declarant while testifying at a trial or in a hearing, offered in evidence to prove the truth of the matter asserted. Evid.R. 810(C). The business records exception to the hearsay rule is found in Evid.R. 803(6). The checks issued by the appellant fall -5- within the definition of hearsay, but arguably would also fall under the exception for business records. In order to admit business records into evidence, it is generally required that the records be authenticated prior to admission. This condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. Evid.R. 901. This authentication may be given by a person charged with keeping the records in the ordinary course of business. Facially, it appears that the testimony of Mr. Dabrovic was necessary to authenticate the allegedly exculpatory checks. However, the Rules of Evidence provide some exceptions to the requirement of authentication, see Evid.R. 902. One exception, Evid.R. 902(9), provides that commercial paper, signatures thereon, and documents relating thereto, are self-authenticating. Accordingly, it has been found that extrinsic evidence of the authenticity of a check is not a condition precedent to admissibility. See Rizzen v. Spaman (1995), 106, Ohio App.3d 95, 110. See also State v. Doane (Dec. 16, 1994), Trumbull App. No. 91-T-4639, unreported; State v. Knotts (June 28, 1990), Paulding App. No. 11-98-3, unreported; and State Automobile Mut. Ins. Co. v. Duhart (May 7, 1992), Lucas App. No. L-82-007, unreported. In the case sub judice, there is no question but that Mr. Dabrovic was a proper person to authenticate the checks from the appellant's Compugenesis account. Based upon Evid.R. 902(9), this court finds that the allegedly exculpatory checks which appellant -6- sought to introduce were, in fact, self-authenticating and admissible without the testimony of Mr. Dabrovic. Under the facts and circumstances present in this case, the trial court abused its discretion in keeping from the jury allegedly exculpatory evidence. The appellant was accused of misappropriating significant amounts of the victim's money which should have been destined for a corporate venture. The checks from the victim to fund this venture were written to a separate business account belonging only to the appellant. The appellant wrote checks from this business account for various purposes, including ones not authorized as a part of the joint corporate venture. The appellant attempted to place before the jury checks which purportedly indicate the victim's money, or at least significant portions thereof, were expended as authorized for their corporate business. Keeping this evidence from the jury was surely prejudicial to the appellant. The appellant's fourth assignment of error is well taken. The appellant's first, second, third, fifth, sixth, seventh, and eighth assignments of error are moot pursuant to App.R. 12. Judgment reversed and remanded for new trial. -7- This cause is reversed and remanded for new trial. It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. ANN DYKE, P.J., and TIMOTHY E. McMONAGLE, J., CONCUR. ______________________________ JAMES D. SWEENEY JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .