STATE OF OHIO v. KEITH DOUGLAS HARRIS
APPEAL NO. C-130442
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
September 26, 2014
[Cite as State v. Harris, 2014-Ohio-4237.]
TRIAL NOS. B-0006312, B-1205794
Judgmеnts Appealed From Are: Affirmed in B-1205794; Sentence Vacated and Cause Remanded in B-1205794
Date of Judgment Entry on Appeal: September 26, 2014
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Anton Lapp, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
David Hoffman, Assistant Hamilton County Public Defender, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
O P I N I O N.
{¶1} Defendant-appellant Keith Harris brutally stabbed his girlfriend while he was on postrelease control for an earlier felony. As a result, he was indicted for felonious assault in the case numbered B-1205794. After a jury trial that resulted in a finding of guilt, the trial court sentenced Harris to eight years of imprisonment for the felonious assault. The trial court also terminated Harris‘s postrelease control and sanctioned Harris for the postrelease-control violation by executing the prison term that had been imрosed as part of the postrelease-control portion of his sentence for the earlier felony. That prison term was journalized in the case numbered B-0006312, which had been assigned to the earlier felony.
{¶2} Harris now appeals from both Hamilton County judgments, arguing that the trial court erred by admitting his medical records as evidence in the trial for the felonious assault, and that his conviction for felonious assault was not supported by sufficient evidence and was against the manifest weight of the evidence. He also argues that the trial court “imposed” the sanction for the postrelease-control violation under the wrong case number and failed to properly credit him for the time he spent on postrelease control for the earlier felony.
{¶3} For the reasons that follow, we affirm the trial court‘s judgment in the case numbered B-1205794. But because the trial court erred in calculating the length of the prison term for Harris‘s postrelease-control violation, we vacate the sentence properly entered in the case numbered B-0006312 and remand the case to the trial court for a recalculation.
I. Background Facts
{¶4} At about 12:30 p.m. on August 17, 2012, Francine Thomas was dropped off at the University Hospital emergency room by a neighbor who had found her bloodied and about to cоllapse in front of her home on East Clifton Avenue.
{¶5} Hours later, Cincinnati Police Officer John Taulbee was dispatched to the street near East Clifton Avenue to investigate a report of a person with stab wounds. When he arrived, he saw a man, who he later learned was Harris, resting on the steps of an apartment building. While the paramedics worked on the stab wounds to Harris‘s chest, Officer Taulbee asked him who had stabbed him. Harris did not respond. But after Harris received some treatment, Officer Taulbee heard him say that he had stabbed himself and also his girlfriend, who had tried to stop him from stabbing himself.
{¶6} By the time Harris made this statement, Officer Taulbee, who knew that a “Keith Harris” was a suspect in a felonious assault that had occurred earlier that day at a different address, had learned Harris‘s name frоm a paramedic. Officer Taulbee relayed Harris‘s statement to other investigating officers. These officers later searched the wooded area between Thomas‘s home and the location where Harris was found, but did not find a knife. The officers did, however, find Harris‘s personal effects and a photograph of him and Thomas in Thomas‘s blood-strewn home.
{¶7} Harris was transported to University Hospital and admitted to the hospital for the treatment of his wounds and for a mental-health evaluation. As documented in his medical records, he told staff at the hospital, including the psychiatrist who had evaluated him, that he had stabbed his girlfriend.
{¶8} At trial, Thomas testified that she and Harris had met while attending Narcotics Anonymous meetings and that he had eventually moved in with her. Harris began relapsing, and the two agreed that if Harris returned to using drugs, he would move out. On August 16, Thomas returned from work to an empty home. Harris called her and told her that he was coming over to return the key to her home. She knew that meant that he was high. Harris gave her the key and left her at an ATM machine after she had withdrawn $100 for him.
{¶9} Thomas walked home alone and fell asleep on the couch, but was awakened at about 4:00 a.m. when Harris rang her doorbell. She reluctantly let him in after he said that he was just looking for a place to sleep that night, and they both fell asleep. The following morning, she became angry with him when he asked to take a shower. She threw up her hands in disgust, but said “okay.” Harris, however, walked away from the bathroom. When she stepped into the bathroom to brush her teeth, Harris entered the bathroom, grabbed her from behind, and began sticking her with her son‘s sharp fishing knife. He stuck her at least seven times, resulting in jagged cuts to her neck, chest, and face. She fell to the floor and exclaimed that he did not have to leave.
{¶10} Thomas saw that Harris was disturbed by the blood, and she tried to calm him while retreating to the front room of her home so she could sit on the couch and put pressure on her wounds. Harris followed her and began stabbing himself. She told Harris that she had to leave, and he told her that she could not go with blood all over her. She eventually “made a run for it” out of the front door. After descending the three steps to the sidewalk, she was grabbed by a neighbor and taken to the hospital. She underwent vascular surgery to repair an injured artery and received multiple stitches and staples to close her gaping wounds.
III. Analysis
{¶12} Harris‘s first, third, fourth, and fifth assignments of error involve the evidence admitted at trial and the finding of guilt with respect to the felonious-assault conviction. We begin with his first assignment of error, in which he contends that the trial court erred by admitting his medical records from University Hospital.
A. Admission of Harris‘s Hospital Records
{¶13} Harris challenges the admission of his hospital records to the extent that they contained his statements that he had stabbed Thomas, which the state used to corroborate Thomas‘s and Detective Taulbee‘s tеstimony.
{¶14} Although Harris objected to the admission of the records at trial on hearsay grounds, he has abandoned that argument. Harris now contends that the records were not admissible because they contained information protected by the physician-patient privilege. Additionally, he claims that the records were not admissible because he did not testify at trial and his statements in the records were
{¶15} To demonstrate plain error under
{¶16} We may reverse under a plain-error standard only where the defendant can demonstrate that “but for the error, the outcomе of the trial clearly would have been otherwise.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph two of the syllabus. “Notice of plain error under
1. Confrontation Clause
{¶17} We first address Harris‘s claim that his hospital records were not admissible absent his testimony at trial because they contained his “testimonial” statements. He contends his statements were testimonial because he made them to a physician while he was guarded by the police and, therefore, he expected the statements to be used against him at trial.
{¶18} The Confrontation Clause of the Sixth Amendment prohibits the admission of testimonial statements of a witness who did not testify at trial, unless the person was unavailable to testify and the defendant had a prior opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006).
2. Physician-Patient Privilege
{¶20} Next Harris argues that the admission of the hospital records infringed upon Ohio‘s physician-patient privilege.
{¶21} The statute dеfines “communication” broadly: “acquiring, recording, or transmitting any information, in any manner, concerning any facts, opinions, or statements necessary to enable a physician * * * to diagnose, treat, prescribe, or act for a patient.”
{¶23} Moreover, the admission of the records did not affect Harris‘s substantial rights. The incriminating statements in these records were merely cumulative to the statement admitted through Detective Taulbee‘s testimony, and they were not necessary to establish Harris‘s guilt, in light of the other evidence, including Thomas‘s testimony. Thus, we cannot say that but for the error, the outcome of the trial clearly would have been otherwise.
{¶24} Ultimately, Harris has failed to demonstrate plain error in the admission of his hospital records. Accordingly, we overrule the first assignment of error.
B. Crim.R. 29 and Sufficiency and Weight of the Evidence
{¶25} In his third, fourth, and fifth assignments of error, Harris contends that the trial court erred by overruling his
{¶26} Harris was convicted of felonious assault in violation of
{¶27} Contrary to Harris‘s contention, the evidence overwhelming showed that when Harris repeatedly stabbed Thomas, he did so with knowledge that he was harming her. Importantly, Thomas did not testify that Harris had inadvertently stabbed her while she interrupted his suicide attempt. Instead, she testified that Harris had brutally attacked her in the bathroоm after he had grabbed her from behind while she stood at the sink to brush her teeth. Her hospital records corroborated this testimony, because they demonstrated that she had multiple, deep wounds on her face, neck, and chest. Thomas‘s testimony was also corroborated by the evidence at the crime scene, which showed the bloodied bathroom sink and the other soiled areas consistent with Thomas‘s testimony.
{¶28} Although Detective Taulbee testified that Harris had told him that he had stabbed Thomas after she tried to stop him from stabbing himself, Detective Taulbee did not testify that Harris had said that the stabbing was inadvertent.
{¶29} Under these circumstances, Harris‘s arguments are meritless. Accordingly, we overrule these assignments of error. See State v. Carter, 72 Ohio St.3d 545, 553, 651 N.E.2d 965 (1995); State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).
C. Postrelease-Control Violation Sanction
{¶30} In his second assignment of error, Harris argues that the trial court “imposed” the sanction for his postrelease-control violation in the wrong сase, and that when calculating the sanction the court did not properly credit him for the amount of time he had spent on postrelease control.
{¶32} The trial court converted the 1,032 days to months, sanctioned Harris for the postrelease-control violation with a prison term of 34 months and 12 days, and journalized that sanction under the case number for the earlier felony.
{¶33} The trial court‘s authority to sanction for a postrelease-control violation is set forth in
Upon the conviction of or plea of guilty to a felony by a person on pоst-release control at the time of the commission of the felony, the court may terminate the term of post-release control, and the court may do either of the following regardless of whether the sentencing court or another court of this state imposed the original prison term for which the person is on post-release control:
(1) In addition to any prison term for the new felony, impose a prison term for thе post-release control violation. The maximum prison term for the violation shall be the greater of twelve months or the period of post-release control for the earlier felony minus any time the person has spent under post-release control for the earlier felony. In all cases, any prison term imposed for the violation shall be reduced
by any prison term that is administratively imposed by the parole board as a post-release control sanction. A prison term imposed for the violation shall be served consecutively to any prison term imposed for the new felony. The imposition of a prison term for the post-release control violation shall terminate the period of post-release control for the earlier felony. (2) Impose a sanction under sections
2929.15 to2929.18 of the Revised Code for the violation that shall be served concurrеntly or consecutively, as specified by the court, with any community control sanctions for the new felony.
1. Journalization of Sanction for Postrelease-Control Violation
{¶34} Harris argues that the trial court erred by “imposing” the sanction for the postrelease-control violation under the case number for the earlier felony. We disagree.
{¶35} Admittedly,
{¶36} And Harris‘s postrelease control was a part of the original judicially-imposed sentence for his earlier felony. See Woods v. Telb, 89 Ohio St.3d 504, 512, 733 N.E.2d 1103 (2000), cited in State v. Martello, 97 Ohio St.3d 398, 2002-Ohio-6661, 780 N.E.2d 250, ¶ 26. His sentence for the prior offense, a first-degree felony, included a prison term of ten years and a mandatory five-yеar term of postrelease control, a violation of which subjected Harris to a prison term of the greater of 12 months or the remaining period of postrelease control.
{¶38} Thus, because
2. Calculation of Court-Ordered Sanction for Postrelease-Control Violation
{¶39}
{¶41} Accordingly, for this reason, we sustain the second assignment of error to the extent that the trial court did not properly credit Harris for the time he spent on postrelease control. The assignment of error is overruled in all other respects.
IV. Conclusion
{¶42} We vacate the trial court‘s sentence for the postrelease control violation in the case numbered B-0006312, and we remand that case with instructions for the court to resentence Harris after providing Harris with the proper credit for the amount of time he spent on postrelease control, as calculated in accordance with the law and with this opinion. In all other respects, we affirm.
Judgment accordingly.
FISCHER and DEWINE, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.