[Cite as State v. Worship , 2022-Ohio-52.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE D ISTRICT OF OHIO

WARREN COUNTY

STATE OF OHIO, Appellee,

- vs -

STEVEN DEMETRIUS WORSHIP, Appellant. :

:

:

:

:

: CASE NO. CA2020-09-055

O P I N I O N

1/10/2022

CRIMINAL APPEAL FROM WARREN CO UNTY COURT OF COMMON PLEAS Case No. 19CR36147

David P. Fornshell, Warren County Prosecuting Attorney, and Kir sten A. Brandt, Assistant Prosecuting Attorney, for appellee. Traci M. Carr, for appellant.

HENDRICKSON, J. {¶1} Appellant, Steven Worship, appeals his conviction in the Warren County Court

of Common Pleas for felonious assault. {¶2} In April 2018, appellant and J.S. met each other through an onl ine dating platform. They began communicating regularly through the websi te's private messaging function, but quickly exchanged phone numbers and began texting and calling one another.Warren CA2020-09-055

- 2 - {¶3} From the beginning of their relationship, appellant and J.S. ha d regular and ongoing conversations about sexual health. J.S. shared her sex ual health records with appellant, and repeatedly requested he do the same. Appellant equivocated, citing a recent hospitalization for diverticulitis where he stated he was teste d "for everything" and "didn't have anything." When J.S. again requested that appellant test for sexually transmitted infections ("STIs"), he told her that he had gone to a hospital in Dayton, had tests done, and "had a clean bill of health," but again produced no documentati on to confirm this. {¶4} In May 2018, appellant and J.S. began a sexual relationship. W hile they used a condom in their initial encounter, both testified that the ov erwhelming majority of their sexual encounters occurred without protection. Between June an d July 2018, appellant moved in with J.S., during which time they had daily sexual enc ounters. After he moved out, they ended their relationship for a time, but resumed it p eriodically for the next several

months. {¶5} In January 2019, J.S. reached out to appellant to inform him th at she had recently tested positive for chlamydia and bacterial vaginosis. She testified that she had two additional sexual partners during that time but had seen th e medical records of each, so she determined that appellant was the source of the STIs. I n an email exchange on January 21, 2019, appellant denied he was the source of the STI s and again asserted that he had a "clean bill of health." In spite of the exchange, app ellant and J.S. continued to have a sexual relationship. {¶6} In the early morning hours of June 23, 2019, appellant arrived unannounced

at J.S.'s house. She invited him in to talk and the two eventu ally engaged in sexual intercourse. Following this encounter, J.S. went to appellant' s car to retrieve his lighter so she could smoke. Once in the vehicle, she discovered a bottle of medication labeled Biktarvy, prescribed to appellant on March 29, 2019. Unfamilia r with the medication, J.S.Warren CA2020-09-055

- 3 - conducted an internet search and discovered that it is used to treat HIV. J.S. confronted appellant about the medication, asking how long he had known th at he was HIV positive. Appellant replied by asking how she found out. She told him th at she had found his medication, and he responded that he "had been testing negative ." Appellant then left her

residence. {¶7} Believing that she had been sexually assaulted, J.S. completed a physical examination with a Sexual Assault Nurse Examiner ("SANE") and c ontacted law enforcement. J.S. met with Detective Kevin Barton, of the Clea rcreek Township Police Department, and told him what had happened. Detective Barton t ook her statement, gathered evidence, and presented the results of his investigati on to the Warren County Prosecutor's Office. On November 25, 2019, a grand jury indict ed appellant for one count

of felonious assault. {¶8} At a bench trial, J.S. testified that she only discovered that appellant had HIV after finding his medications in June 2019. Appellant testifie d that following J.S.'s January 2019 accusation that he had given her chlamydia, he received te sting for STIs at Equitas Health. Appellant stated that he told J.S. that he had HIV as soon as he received the diagnosis. Specifically, he recalled a phone conversation wher e he told her "maybe you shouldn't be sleeping with a lot of people * * * because I may have, you know, HIV." The trial court found appellant guilty of felonious assault in viol ation of R.C. 2903.11(B)(1), and sentenced him to prison for two to three years. Appellant now appeals, raising the following assignments of error: {¶9} Assignment of Error No. 1: {¶10} THE TRIAL COURT ERRED WHEN IT ADMITTED UNAUTHENTICATED

MEDICAL RECORDS. {¶11} In appellant's first assignment of error, he argues that the tr ial court erred inWarren CA2020-09-055

- 4 - its admission of his medical records. {¶12} "'A trial court has broad discretion in the admission and exclu sion of evidence and unless it clearly abused its discretion and appellant is ma terially prejudiced thereby, an appellate court should not disturb the decision of the trial co urt.'" State v. Sizemore , 12th Dist. Warren No. CA2019-01-006, 2019-Ohio-4400, ¶ 35, quoting State v. Martin , 12th Dist. Butler No. CA2007-01-022, 2007-Ohio-7073, ¶ 9. "An abuse of di scretion is more than an error of law or judgment." State v. Jackson , 12th Dist. Madison No. CA2019-03-006, 2020- Ohio-2677, ¶ 43. Rather, it suggests that the trial court's de cision was unreasonable, arbitrary, or unconscionable. State v. Gibson , 12th Dist. Butler No. CA2016-06-107, 2017- Ohio-877, ¶ 21. "An abuse-of-discretion standard of review is a deferential review." State

v. Green , 12th Dist. Clermont No. CA2019-07-061, 2020-Ohio-1552, ¶ 27. {¶13} Appellant argues that his medical records were not properly aut henticated and were consequently admitted in error. R.C. 2317.422 "provides a simplified means of authenticating hospital records which eliminates the necessity for the in-court testimony of

the custodian." State v. Humphries , 79 Ohio App.3d 589, 595 (12th Dist. 1992). It provides

that 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 mod e and time of their preparation, and stating that they were prepared in the usual course of the business of the institution

. R.C. 2317.422(A). {¶14} On May 19, 2020, pursuant to the state's motion, the trial cour t ordered that Equitas Health provide the trial court with "properly certified medical records in accordance with Revised Code § 2317.422 for Steven Worship * * * for the d ates of treatment: April 1,Warren CA2020-09-055

- 5 - 2018 through June 30, 2019." On June 10, 2020, Equitas respond ed to the order and provided appellant's medical records to the court. {¶15} The face sheet for the Equitas records identifies the records a s "Confidential Records" and as being from the Equitas's "Medical Records Manag er." Contrary to the formalities required by R.C. 2317.422(A) for the authentication of hospital records, however,

there is no verified certification which identifies the records , gives the mode and time of their preparation, and states that they were prepared in the usual co urse of the business of Equitas. Appellant's medical records consequently did not sati sfy the requisites of R.C. 2317.422(A) for authentication. {¶16} The state argues that the trial court did not err by admitting the medical records because appellant did not specify that his objection to the medical records was based upon R.C. 2317.422. Evid.R. 103(A)(1) provides that [e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and * * * a timely obj ection or motion to strike appe ars of record, stating the specific ground of objection, if the spe cific ground was not apparent from the context. {¶17} In this case, the state introduced appellant's medical records during the testimony of the investigating officer, Detective Kevin Barton. Appellant's trial counsel promptly objected. Appellant's objection to the medical record s was not articulate and did not specifically cite R.C. 2317.422. However, counsel was clea r that the trial court's order that the medical records be produced did not render the records admissible evidence. Although counsel's objection did not cite R.C. 2317.422, it was apparent from the context that counsel was objecting to the admission of the records beca use there was no certification and no authenticating witness. {¶18} Because appellant timely objected to the admission of the medic al records and because the records were not properly authenticated, the tr ial court erred in admittingWarren CA2020-09-055

- 6 - the records into evidence. Appellant "has a constitutional gua rantee to a trial free from prejudicial error, not necessarily one free of all error." State v. Brown , 65 Ohio St.3d 483, 485, 1992-Ohio-61. We therefore address whether the error was reversible or harmless. {¶19} "Not every error requires that a conviction be vacated or a new trial granted."

State v. Morris , 141 Ohio St.3d 399, 2014-Ohio-5052, ¶ 24. Errors in evidenti ary rulings are subject to review under the harmless error standard. State v. Echavarria , 12th Dist. Butler No. CA2003-11-300, 2004-Ohio-7044, ¶ 20; see Crim.R. 52(A) ("Any error, defect, irregularity, or variance which does not affect substantial rig hts shall be disregarded."). The harmless-error rule "was created in essence to forgive technica l mistakes," and does so by inquiring whether the rights affected were "substantial," and i f so, whether the accused was prejudiced thereby. Morris at ¶ 24, citing Crim.R. 52(A) and R.C. 2945.83(D). {¶20} "When determining whether erroneously admitted evidence affecte d a defendant's substantial rights as to require a new trial or whe ther such an admission was harmless under Crim.R. 52(A), a reviewing court must make three determinations." In re

B.T.B. , 12th Dist. Butler No. CA2014-10-199, 2015-Ohio-2729, ¶ 34. T he Supreme Court

has enumerated these: First, it must be determined whether the defendant was prejudiced by the error, i.e., whether the error had an impact on the verdict. Second, it must be determined whether the error was not harmless beyond a reasonable doubt. Lastly, once the prejudicial evidence is excised, the remaining evidence is weighed to determine whether it establishes the defendant's guilt beyond a reasonable doubt. (Citations omitted.) State v. Harris , 142 Ohio St.3d 211, 2015-Ohio-166, ¶ 37. {¶21} In this case, the erroneous admission of appellant's unauthenti cated medical records demonstrated appellant's knowledge that he was HIV posi tive. This evidence proved an element of felonious assault under R.C. 2903.11(B)(1) , as the records show that appellant was informed of his diagnosis in 2001, well before hi s relationship with J.S. In theWarren CA2020-09-055

- 7 - absence of additional evidence, the trial court's admission of the medical records would be prejudicial to appellant. However, there was ample additional evidence to show that appellant knew about his diagnosis and failed to fully disclose that he was HIV positive to J.S., without use of the medical records. {¶22} J.S.'s testimony independently established that appellant was a ware he was HIV positive prior to engaging in sex with her on June 23, 2019 . Specifically, after J.S. found appellant's Biktarvy prescription and she confronted him, appellant inquired how she had found out. She told him she had discovered his Biktarvy pr escription and appellant stated that he had been testing negative for HIV. This stateme nt, i.e., appellant inquiring how J.S. "found out," constituted an admission on his part. Fu rther, the prescription was issued in March 2019, which indicates he knew at that time. J. S.'s testimony concerning her confrontation with appellant on June 23, 2019, and his stat ements indicating his awareness that he was HIV positive, establish that appellant ha d sex with J.S. knowing he was HIV positive on that date. Because the remaining evidence establishes appellant's guilt beyond a reasonable doubt, the trial court's error in adm itting appellant's unauthenticated medical records was harmless. Accordingly, app ellant's first assignment

of error is overruled. {¶23} Assignment of Error No. 2: {¶24} THE TRIAL COURT ERRED WHEN IT ADMITTED APPELLANT'S MEDICAL RECORDS, OVER OBJECTION, THAT VIOL ATED HIS DOCTOR/PATIENT PRIVI LEGE. {¶25} Appellant next argues that the trial court erred in admitting h is medical records because the admission violated his physician-patient privilege. Having already determined that the admission of appellant's unauthenticated medical recor ds was erroneous, we pause here to note that even had the medical records been properly au thenticated, physicianpatient privilege would not preclude their admission.Warren CA2020-09-055

- 8 - {¶26} "The physician-patient privilege prevents a physician from test ifying concerning communication made to the physician by a patient in that relation or the physician's advice to a patient." State v. Myers , 12th Dist. Clinton Nos. CA2014-02-002 and CA2014-02-004, 2015-Ohio-160, ¶ 34, citing R.C. 2317.02(B)( 1). Under the statute, "[a] 'communication' may include, but is not limited to, any me dical or dental, office, or hospital communication such as a record, chart, letter, memoran dum, laboratory test and results, x-ray, photograph, financial statement, diagnosis, or prognosis." R.C. 2317.02 (B)(5)(a). {¶27} The physician-patient privilege is not absolute, there being nu merous statutory exceptions to the privilege. State v. Richardson , 12th Dist. Warren Nos. CA2018- 04-043 and CA2018-04-044, 2018-Ohio-4254, ¶ 17. One such excep tion is found in R.C. 3701.243(B)(1)(h). See State v. Gonzalez , 1st Dist. Hamilton No. C-020384, 2003-Ohio4421, ¶ 89. This statute provides that the results of an HIV test or the identity of an individual on whom an HIV test is performed or who is diagnosed as having AIDS or an AIDS-related condition may be disclosed * * * [t]o law enforcement authorities pursuant to a search warrant or a subpoena issued by or at the request of * * * a prosecuting attorney * * * in connection with a criminal investigation or prosecution. R.C. 3701.243(C)(1) and (2) permit a court to issue an order gr anting a government agency the authority to disclose HIV test records on a showing of comp elling need. R.C. 3701.243 further provides that "[n]othing in this section prohibits the introduction of evidence concerning an HIV test of a specific individual in a criminal p roceeding." {¶28} In this case, the state sought disclosure of appellant's HIV te st records in connection with its prosecution of appellant for felonious assa ult. The state demonstrated a compelling need for the records, which would satisfy one of t he elements of the charged

offense. See R.C. 2903.11(B)(1). As such, the physician-patient privilege did not apply,Warren CA2020-09-055

- 9 - and the trial court properly issued its order permitting disclo sure of the records. Although Equitas failed to properly authenticate the records, rendering their admission erroneous, physician-patient privilege had no bearing on whether the recor ds should have been admitted. Accordingly, appellant 's second assignment of error is overruled. {¶29} Assignment of Error No. 3: {¶30} THE EVIDENCE PRESENTED WAS INSUFFICIENT TO SUPPORT THE CONVICTION, AND THE CONVICTION W AS AGAINST THE MANIFEST WEIGHT OF

THE EVIDENCE PROPERLY BEFORE THE COURT. {¶31} In his final assignment of error, appellant challenges his conv iction on both sufficiency of the evidence and manifest weight grounds. {¶32} Whether the evidence presented at trial is legally sufficient t o sustain a verdict is a question of law. State v. Moore , 12th Dist. Fayette No. CA2020-09-016, 2021-Ohio1856, ¶ 12. When reviewing the sufficiency of the evidence und erlying a criminal conviction, an appellate court examines the evidence in order to determine whether such evidence, if believed, would convince the average mind of the defendant's gu ilt beyond a reasonable

doubt. State v. Roberts , 12th Dist. Warren No. CA2020-12-089, 2021-Ohio-3073, ¶ 12. The relevant inquiry is, after viewing the evidence in the ligh t most favorable to the prosecution, whether any rational trier of fact could have foun d the essential elements of the crime proven beyond a reasonable doubt. State v. Terry , 12th Dist. Warren No. CA2021-04-029, 2021-Ohio-4043, ¶ 9. {¶33} "Unlike a challenge to the sufficiency of the evidence, a manif est weight of the evidence challenge examines the 'inclination of the greater amo unt of credible evidence, offered at a trial, to support one side of the issue rather tha n the other.'" Moore at ¶ 13, quoting State v. Barnett , 12th Dist. Butler No. CA2011-09-177, 2012-Ohio-2372, ¶ 14. T o determine whether a conviction is against the manifest weight o f the evidence, the reviewingWarren CA2020-09-055

- 10 - court must look at the entire record, weigh the evidence and al l reasonable inferences, consider the credibility of the witnesses, and determine whethe r in resolving the conflicts in the evidence, the trier of fact clearly lost its way and create d such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. State v. Fester , 12th Dist. Clermont No. CA2019-05-043, 2021-Ohio-410, ¶ 55. {¶34} "When considering whether a judgment is against the manifest we ight of the evidence in a bench trial, an appellate court will not reverse a conviction where the trial court could reasonably conclude from substantial evidence that the state has proved the offense beyond a reasonable doubt." State v. Tranovich , 12th Dist. Butler No. CA2008-09- 242, 2009-Ohio-2338, ¶ 7. An appellate court will overturn a c onviction due to the manifest weight of the evidence only in extraordinary circumstances when the evidence presented at trial weighs heavily in favor of acquittal. State v. Ostermeyer , 12th Dist. Fayette No. CA2021-01-002, 2021-Ohio-4116, ¶ 35. A determination that a co nviction is supported by the manifest weight of the evi dence will also be dispositive of the issue of sufficiency. State

v. Jividen , 12th Dist. Warren No. CA2020-10-067, 2021-Ohio-2720, ¶ 10. {¶35} R.C. 2903.11(B)(1) states that "[n]o person, with knowledge tha t the person has tested positive as a carrier of a virus that causes acquire d immunodeficiency syndrome, shall knowingly * * * [e]ngage in sexual conduct with another p erson without disclosing that knowledge to the other person prior to engaging in the sexual c onduct." Sexual conduct is defined as "vaginal intercourse between a male and female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and, without pri vilege to do so, the insertion, however slight, of any part of the body or any instr ument, apparatus, or other object into the vaginal or anal cavity of another." R.C. 2907. 01(A). {¶36} It is undisputed that appellant and J.S. engaged in sexual cond uct between May 2018 and June 2019. It is likewise undisputed that appella nt knew that he had HIV byWarren CA2020-09-055

- 11 - January 2019 at the latest, and that he engaged in sexual conta ct with J.S. after receiving that diagnosis. What is in dispute is whether appellant disclo sed his HIV positive status to J.S. prior to her finding his medication on June 23, 2019. App ellant asserts that he told J.S. as soon as he found out, and discounts J.S.'s testimony to the contrary. {¶37} "'[T]he decision whether, and to what extent, to credit the tes timony of particular witnesses is within the peculiar competence of the f actfinder, who has seen and

heard the witness.'" State v. Cephas , 12th Dist. Butler No. CA2021-05-051, 2021-Ohio4356, ¶ 15, quoting State v. Goodwin , 12th Dist. Butler No. CA2016-05-099, 2017-Ohio2712, ¶ 34. "[I]t is well-established that determinations rega rding witness credibility, conflicting testimony, and the weight to be given such evidence are primarily for the trier of

fact." State v. K.W. , 12th Dist. Warren No. CA2016-01-004, 2016-Ohio-7365, ¶ 26. " The trial court, as the trier of fact, is free to believe all, part , or none of the testimony of any witness who appears before it." Cephas at ¶ 13. {¶38} Appellant points to the conflict between his testimony and J.S. 's testimony to suggest that the latter was unreliable. However, "when conflic ting evidence is presented at trial, a conviction is not against the manifest weight of the e vidence simply because the trier of fact believed the prosecution testimony." State v. Lunsford , 12th Dist. Brown No. CA2010-10-021, 2011-Ohio-6529, ¶ 17; see also State v. Jackson , 12th Dist. Butler No. CA2001-10-239, 2002-Ohio-4705, ¶ 48 ("A conviction is not again st the manifest weight of the evidence merely because there is conflicting evidence befor e the trier of fact"). "'In a bench trial, the trial court acts as the factfinder and determi nes both the credibility of the witnesses and the weight of the evidence.'" Hensley , 2021-Ohio-3702, at ¶ 29, quoting State v. Lowry , 12th Dist. Warren Nos. CA2019-07-070 and CA2019-07-071, 2020- Ohio1554, ¶ 19. Here, the trial court, as factfinder, determined t hat J.S. was credible, and appellant was not.Warren CA2020-09-055

- 12 - {¶39} In finding appellant guilty of felonious assault, the trial cou rt was entitled to discredit appellant's testimony and believe J.S.'s testimony. Cephas at ¶ 15. In making its decision which witnesses to believe and which to disbelieve, th e trial court did not lose its way or create a manifest miscarriage of justice. After reviewi ng the record, weighing inferences, and examining the credibility of the witnesses, we find that appellant's conviction for felonious assault is not against the manifest weight of the evidence. We will not reverse appellant's conviction where, as here, we find that the trial c ourt could reasonably conclude from substantial evidence that the state proved the offense bey ond a reasonable doubt.

Tranovich , 2009-Ohio-2338, at ¶ 7. As such, appellant's final assignmen t of error is without

merit and therefore overruled. {¶40} Judgment affirmed.

M. POWELL, P.J., and S. POWELL, J., concur.