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Hinte v. Echo12/10/1998
itnesses who either lacked the requisite knowledge and competence to testify or impermissibly offered testimony based upon hearsay."
Appellant's first assignment of error asserts that the trial court erred in admitting appellee's Exhibit A, the blade engineering specifications, without a foundation being laid pursuant to Evid.R. 803(6). Appellant's second assignment of error asserts that the trial court erred in permitting appellee's witnesses to testify based upon the improperly admitted engineering specifications. While appellant's second assignment of error raises other issues with respect to the competence of witnesses to testify, those aspects of the second assignment of error that relate to the admission of engineering specifications will be discussed in connection with appellant's first assignment of error.
Three issues are raised in connection with admission into evidence of Echo's engineering specifications. The first is whether a proper foundation was laid for the admission of the engineering specifications, the second is whether appellant had previously stipulated to admission of the engineering specifications, and the third is whether appellant was prejudiced by the admission of the specifications, if they were improperly admitted.
Evid.R. 803(6) addresses the admissibility of business records as an exception to the general hearsay rule:
"Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, or conditions, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness or as provided by Rule 901(B)(10), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness."
The decision to admit a business record into evidence pursuant to Evid. R. 803(6) rests within the sound discretion of the trial court, whose determination will not be disturbed on appeal unless an abuse of discretion can be shown. WUPW TV-36 v. Direct Results Marketing, Inc. (1990), 70 Ohio App.3d 710, 714s591 N.E.2d 1345, 1347. Admission of business records will constitute an abuse of discretion by the trial court where an inadequate foundation was laid to establish the admissibility of the records under Evid.R. 803(6). State v. Comstock (Aug. 29, 1997), Cuyahoga App. No. 96-A-0058, unreported, 1997 WL 531304.
Evid.R. 803(6) does not require the witness whose testimony establishes the foundation for a business record to have personal knowledge of the exact circumstances of preparation and production of the document. The witness must, however, "demonstrate that he or she is sufficiently familiar with the operation of the business and with the circumstances of the preparation, maintenance, and retrieval of the record in order to reasonably testify on the basis of this knowledge that the record is what it purports to be, and was made in the ordinary course of business." Keeva J. Kekst Architects, Inc. v. George Dev. Group (May 15, 1997), Cuyahoga App. No. 70835, unreported, at 12, 1997 WL 253171, citing WUPW TV-36, supra.
The Ohio Supreme Court has stated that the business-records exception "is based on the assumption that the records, made in the regular course of business by those who have a competent knowledge of the facts recorded and a self-interest to be served through the accuracy of the entries made and kept with knowledge that they mill be relied u
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