[Cite as State v. Shriver, 2011-Ohio-6469.]


                                        COURT OF APPEALS
                                      MORGAN COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


                                               :   JUDGES:
STATE OF OHIO                                  :   William B. Hoffman, P.J.
                                               :   Sheila G. Farmer, J.
                          Plaintiff-Appellee   :   Julie A. Edwards, J.
                                               :
-vs-                                           :   Case No. 10-AP-0003
                                               :
                                               :
RODNEY SHRIVER                                 :   OPINION

                     Defendant-Appellant




CHARACTER OF PROCEEDING:                            Criminal Appeal from Morgan County
                                                    Court of Common Pleas Case No.
                                                    09-CR-0049

JUDGMENT:                                           Affirmed

DATE OF JUDGMENT ENTRY:                             December 13, 2011

APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

MARK J. HOWDYSHELL                                  STEVEN P. SCHNITTKE
Prosecuting Attorney                                Schnittke & Smith
109 East Main Street                                114 S. High Street
McConnelsville, Ohio 43756                          P.O. Box 542
                                                    New Lexington, Ohio 43764
[Cite as State v. Shriver, 2011-Ohio-6469.]


Edwards, J.

        {¶1}     Appellant, Rodney Shriver, appeals a judgment of the Morgan County

Common Pleas Court convicting him of felonious assault (R.C. 2903.11(A)(1)) and

sentencing him to seven years incarceration.

                                    STATEMENT OF FACTS AND CASE

        {¶2}     Sean Haynes and Josh Reese attended college together at the University

of Kentucky. Haynes is from Indiana, while Reese is from McConnelsville, in Morgan

County, Ohio. On October 18, 2009, Haynes accompanied Reese on a visit home.

        {¶3}     While in McConnelsville, Reese and Haynes attended a party. Reese

introduced Haynes to several people at the party. When Haynes attempted to shake

the hand of a person he was introduced to, appellant punched him, breaking his jaw.

Haynes had to have his jaw wired shut for over a month and was unable to eat solid

food. He was required to withdraw from college for the semester, losing his tuition

money.

        {¶4}     Appellant was indicted by the Morgan County Grand Jury with one count

of felonious assault. The case proceeded to jury trial. At trial, appellant testified that

Haynes pushed him and he punched him in self-defense. Appellant was convicted as

charged. He assigns two errors on appeal:

        {¶5}     “I.   THE      CASE          AGAINST   DEFENDANT/APPELLANT   MUST    BE

DISMISSED FOR FAILURE TO BRING HIM TO TRIAL WITHIN THE SPEEDY TIME

STATUTE OF THE STATE OF OHIO.
Morgan County App. Case No. 10-AP-0003                                                     3


       {¶6}    “II. THE COURT ERRED TO THE PREJUDICE AND DETRIMENT OF

DEFENDANT/APPELLANT BY ADMITTING THE MEDICAL RECORDS OF THE

VICTIM.”

                                                 I

       {¶7}    Appellant argues that the court erred in overruling his motion to dismiss for

violation of his right to speedy trial.

       {¶8}    R.C. 2945.71 provides in pertinent part:

       {¶9}    “(C) A person against whom a charge of felony is pending:

       {¶10} “(2) Shall be brought to trial within two hundred seventy days after the

person’s arrest.

       {¶11} “(E) For purposes of computing time under divisions (A), (B), (C)(2), and

(D) of this section, each day during which the accused is held in jail in lieu of bail on the

pending charge shall be counted as three days. This division does not apply for

purposes of computing time under division (C)(1) of this section.”

       {¶12} The parties agree that the triple-count provision of R.C. 2945.71(E)

applies. The parties further agree that appellant was required to be brought to trial by

March 29, 2010. The original trial date was set for February 23, 2010. However,

appellant filed a motion to continue on February 10, 2010. Pursuant to R.C. 2945.72(H),

this continuance tolled the speedy trial time:

       {¶13} “The time within which an accused must be brought to trial, or, in the case

of felony, to preliminary hearing and trial, may be extended only by the following:
Morgan County App. Case No. 10-AP-0003                                                    4


       {¶14} “(H) The period of any continuance granted on the accused’s own motion,

and the period of any reasonable continuance granted other than upon the accused’s

own motion . . .”

       {¶15} See also State v. Lawless, Muskingum App. No. CT2000-0037, 2002-

Ohio-3686.

       {¶16} Appellant’s motion for a continuance was granted and the trial was

continued to March 30, 2010. Thus the time was tolled until March 30, 2010. On March

31, 2010, appellant filed a second motion to continue. The motion was granted and a

new trial date was set for May 25, 2010. This second motion again tolled the speedy

trial time, and only one day elapsed between the time the clock began to run on March

30, 2010, and appellant’s motion to continue filed on March 31, 2010. Appellant was

brought to trial as scheduled on May 25, 2010.

       {¶17} Appellant concedes that when he filed his motion to continue, the State

had 45 days remaining in which to bring him to trial. Because appellant’s two motions

to continue tolled the speedy trial time with only one day elapsing in between, appellant

was brought to trial within the time limits set forth in R.C. 2945.71 and R.C. 2945.72.

       {¶18} The first assignment of error is overruled.

                                                  II

       {¶19} In his second assignment of error, appellant argues that the court erred in

admitting the unauthenticated medical records of Sean Haynes, as they were hearsay.

The state argues the documents were not hearsay because they were not offered to

prove the truth of the matter asserted therein; rather, they were offered to bolster

Haynes’ credibility regarding the severity of his injuries.
Morgan County App. Case No. 10-AP-0003                                                  5


       {¶20} Evid. R. 803(6) provides an exception to the hearsay rule for business

records:

       {¶21} “The following are not excluded by the hearsay rule, even though the

declarant is available as a witness:

       {¶22} “(6) 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 term ‘business’ as used in this

paragraph includes business, institution, association, profession, occupation, and calling

of every kind, whether or not conducted for profit.”

       {¶23} Appellant argues that the records were not properly authenticated. We

agree. Haynes was the only witness who testified concerning the authenticity of these

documents, and he was not qualified to testify as to the record-keeping practices of the

doctors and medical facilities who kept these records. Haynes could only testify with

knowledge that these were copies of the bills and records that were given to him

following treatment. Further, we disagree with the State’s argument that the records

weren’t offered to prove the truth of the matter asserted therein. The state argues that

the purpose of presenting the documents was to bolster Haynes’ credibility concerning

the severity of his injuries. The documents therefore were offered to prove the truth of
Morgan County App. Case No. 10-AP-0003                                                    6


the matter asserted therein; namely, that Haynes was injured in the manner reflected by

such documents.

        {¶24} However, we find any error in the admission of the documents to be

harmless. Crim. R. 52(A) defines harmless error:

        {¶25} “Any error, defect, irregularity, or variance which does not affect

substantial rights shall be disregarded.”

        {¶26} The test for determining whether the admission of erroneous evidence is

harmless requires the reviewing court to look at the whole record, leaving out the

disputed evidence, and then to decide whether there is other substantial evidence to

support the guilty verdict. State v. Riffle, Muskingum App. No. 2007–0013, 2007–Ohio–

5299 at ¶ 36–37 (Citing State v. Davis (1975), 44 Ohio App.2d 335, 347, 338 N.E.2d

793).

        {¶27} In the instant case, Haynes testified concerning the severity of his injuries.

He testified that he was in a great deal of pain when he went to the hospital and

swallowed so much blood that he was throwing up constantly. Tr. 163-164. He testified

that the doctor showed him on the x-ray where his jaw was broken. Tr. 164. He

testified that he had his jaw wired shut and could not eat solid food. Id. He had a two-

hour surgery following which his jaw was wired shut for between four to five weeks, and

he was in pain until about the third week following the surgery. Tr. 165. He testified

that he was unable to go back to school because of the strong pain medication and the

fact that he could not live on campus while unable to eat solid food. Tr. 166.

        {¶28} Appellant did not dispute the extent of Haynes injuries, the only issue

raised by appellant was self-defense. Appellant testified that it made him sick to his
Morgan County App. Case No. 10-AP-0003                                                7


stomach hearing what Haynes went through physically because he didn’t mean to

cause such harm, he just wanted appellant to stay away from him. Tr. 199.

      {¶29} Based on the undisputed evidence properly admitted concerning the

extent of Haynes’ injury, we find that the verdict was supported by substantial evidence

concerning the element of serious physical harm and any error in the admission of

Haynes’ medical records was harmless.

      {¶30} The second assignment of error is overruled.

      {¶31} The judgment of the Morgan County Common Pleas Court is affirmed.




By: Edwards, J.

Hoffman, P.J. and

Farmer, J. concur

                                                  ______________________________



                                                  ______________________________



                                                  ______________________________

                                                              JUDGES

JAE/r0923
[Cite as State v. Shriver, 2011-Ohio-6469.]


               IN THE COURT OF APPEALS FOR MORGAN COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     :
                                                  :
                             Plaintiff-Appellee   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
RODNEY SHRIVER                                    :
                                                  :
                        Defendant-Appellant       :       CASE NO. 10-AP-0003




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Morgan County Court of Common Pleas is affirmed. Costs assessed to

appellant.




                                                      _________________________________


                                                      _________________________________


                                                      _________________________________

                                                                   JUDGES
