[Cite as State v. Durham, 2011-Ohio-2256.]


         Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                           JOURNAL ENTRY AND OPINION
                                    No. 94747


                                   STATE OF OHIO
                                                   PLAINTIFF-APPELLEE

                                             vs.


                              ROY A. DURHAM, JR.
                                                   DEFENDANT-APPELLANT



                                         JUDGMENT:
                                          AFFIRMED


                              Criminal Appeal from the
                        Cuyahoga County Court of Common Pleas
                                 Case No. CR-525549

        BEFORE:           Rocco, J., Stewart, P.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED: May 12, 2011


                                             -i-
                                      2


ATTORNEYS FOR APPELLANT

Timothy Young
Ohio Public Defender

BY:  Stephen P. Hardwick
     Assistant Public Defender
Ohio Public Defender’s Office
250 East Broad Street, Suite 1400
Columbus, Ohio 43215

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY:   Kristen L. Sobieski
      Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




KENNETH A. ROCCO, J.:

      {¶ 1} Defendant-appellant Roy A. Durham, Jr. appeals from his

convictions and the sentence imposed after a jury found him guilty of

felonious assault and kidnapping.

      {¶ 2} Durham presents five assignments of error.      He claims the trial

court allowed two types of improper testimony into evidence, “cumulative

error” occurred that denied him his right to a fair trial, the trial court failed
                                      3

to make the necessary findings before imposing consecutive sentences, and

his trial counsel rendered ineffective assistance.

         {¶ 3} Upon a review of the record, this court finds none of Durham’s

claims to have merit.      Consequently, his convictions and sentences are

affirmed.

         {¶ 4} According to the evidence presented at trial, Durham and the

victim, Rosalynn Harrell, were friends, having met in 2005. Harrell worked

as a secretary, and took an active role in activities at her church. By 2007,

Durham was living with Harrell at her apartment; although she supported

him, he controlled the household finances.

         {¶ 5} On the morning of Tuesday, October 2, 2007, Durham became

angry at Harrell, accusing her of having eavesdropped on one of his

conversations. He struck her three or four times in the face, then dragged

her to the bedroom.

         {¶ 6} Once there he placed her in a chair, struck her again, knocked

her to the floor, picked her up, pushed her back onto the chair, then tied her

to it.    He used two belts and a towel.     With one belt, he tied her hands

behind the chair.     He placed a towel in her mouth as a gag, then tied a

smaller belt around her head to hold the towel.
                                      4

       {¶ 7} When Harrell was secured, Durham told her he believed she was

involved in a plot against him. He called her names and threatened to kill

her.    Occasionally, he untied her hands only to permit her to write

confessions about her role.

       {¶ 8} Harrell did not write “fast enough for him” at one point, so

Durham went to the kitchen, obtained a knife, and stabbed her in her right

shin. Approximately twenty minutes later, he threw salt into her wound.

       {¶ 9} Durham kept Harrell captive in the chair until evening.   By that

time, he was “calmer,” became solicitous, and permitted Harrell to go to bed.

The following day, Harrell remained with Durham because she was bruised

and fearful of his reaction if she should attempt to leave. He reinforced her

fear when he became angry again at something she did, “went to yelling and

went to hitting [her] with a meat tenderizer” he was using to crush pain

medicine. Harrell attempted to ward off the blows, but one struck her hard

in her left hand.

       {¶ 10} On Thursday, Durham escorted Harrell to a grocery store and a

“tackle shop”; he drove Harrell’s car. He also insisted she wear sunglasses to

hide her facial bruises.

       {¶ 11} By Friday, Harrell’s leg wound was infected.   Durham drove her

to an “urgent care” facility, ordered her to explain she sustained her injuries
                                      5

when someone “jumped her,” and dropped her off. She obeyed his enjoinder.

Durham returned for Harrell as soon as she received some treatment.

     {¶ 12} That evening, Harrell’s church pastor, Cornelius White, came to

Harrell’s apartment, worried because, by that time, she had missed several

church obligations for which she had volunteered. White spoke to Durham

over the intercom; Durham told White that Harrell was not at home and he

thought she was “at her mother’s.” Durham asked White if he wanted to

“come in and see.”

     {¶ 13} White demurred, but informed Durham he would return if he did

not find Harrell. Although White attempted to contact Harrell’s mother, he

received no answer.      Church matters thereafter replaced his concern over

Harrell’s whereabouts.

     {¶ 14} Harrell remained in her apartment with Durham the next day

and on Sunday, seeking to keep him pacified.       Thus, she missed Sunday

church services. That evening, Harrell’s sister telephoned White, indicating

that Harrell had not been in touch with her family for nearly a week. The

call galvanized White into action. He assembled four other church members

and they proceeded to Harrell’s apartment.

     {¶ 15} This time, White and two other churchmen went directly to

Harrell’s apartment door, pounded on it, and refused to believe Durham when
                                       6

he told them Harrell was not there.          White demanded to be admitted.

Durham finally opened the door to confront White, but retreated when he saw

White’s companions.

         {¶ 16} When White entered the apartment, he saw Harrell “laying in a

corner broke down in an infant-type position” on the bedroom floor; she

appeared “broken.” Harrell was unkempt and had difficulty in getting to her

feet, so one of the churchmen helped her outside.       Upon seeing Harrell’s

condition, White’s wife called the police. Durham, however, did not stay; he

drove away in Harrell’s car.

         {¶ 17} Emboldened by her church and family, Harrell provided a written

statement to the police detailing her experience.        She also obtained a

protective order against Durham.

         {¶ 18} Durham subsequently was indicted in this case on five counts,

charged with two counts of kidnapping, two counts of felonious assault, and

one count of intimidation of a crime victim. His case proceeded to a jury

trial.

         {¶ 19} The state presented the testimony of Harrell, a few of her

acquaintances from church, and police officers who became involved in the

case. At the conclusion of the state’s case, the trial court granted Durham’s
                                     7

motion for acquittal as to one count of kidnapping.       Durham elected to

present no evidence.

      {¶ 20} The jury found Durham guilty of one count of kidnapping, and the

two counts of felonious assault, but not guilty of intimidation. At sentencing,

the trial court merged the two counts of felonious assault pursuant to R.C.

2941.25(A), and imposed consecutive terms of five years on count one and four

years on count three.

      {¶ 21} Durham presents the following assignments of error for review.

      {¶ 22} “I.     The trial court erred by permitting the complaining

witness to testify based on ‘refreshed recollection’ without a proper

foundation.

      {¶ 23} “II.     The trial court erred by admitting hearsay to

improperly bolster the testimony of a key state witnesses [sic].

      {¶ 24} “III.    Cumulative error prejudiced Mr. Durham.

      {¶ 25} “IV.      The trial court erred by imposing consecutive

sentences without making findings as required by R.C. 2929.14(E).

      {¶ 26} “V.     The convictions and sentence violate Mr. Durham’s

right to the effective assistance of counsel.”

      {¶ 27} Durham’s first and second assignments of error both address trial

court rulings concerning the admission of evidence. These matters lie within
                                       8

the sound discretion of the trial court, and the judgment will not be disturbed

unless it is unreasonable, arbitrary, or unconscionable. State v. Sage (1987),

31 Ohio St.3d 173, 510 N.E.2d 343, paragraph two of the syllabus.

Furthermore, error may not be predicated upon a ruling that admits or

excludes evidence unless a substantial right of the party is affected. Evid.R.

103.

       {¶ 28} Initially, Durham contends the trial court erred when it

permitted the prosecutor to show Harrell the written statement she gave to

the police in order to refresh her recollection of the details of the ordeal she

endured with Durham. Durham cites none of the Ohio Rules of Evidence to

support his argument, perhaps because none does.

       {¶ 29} Evid.R. 612 permits a party to use a writing to refresh a witness’s

recollection.      See, e.g., State v. Ballew, 76 Ohio St.3d 244, 254,

1996-Ohio-81, 667 N.E.2d 369. The party may not read the writing aloud,

have the witness read it aloud, or otherwise place it before the jury. Id.

Rather, the witness reads the writing silently in order to refresh her

recollection. Dayton v. Combs (1993), 94 Ohio App.3d 291, 640 N.E.2d 863.

If the writing refreshes the witness’s recollection, the witness then testifies

using present independent knowledge. State v. Scott (1972), 31 Ohio St.2d 1,

5-6, 285 N.E.2d 344; cf., Cleveland v. Schumann, Cuyahoga App. No. 95530,
                                      9

2011-Ohio-741. It is this testimony, not the writing, that is the evidence. Id.,

¶12, citing State v. Woods (1988), 48 Ohio App.3d 1, 548 N.E.2d 954.

      {¶ 30} In this case, Harrell’s ordeal took place three years prior to the

time the case actually proceeded to trial.          She admitted on direct

examination that she could not remember her entire description of what

occurred, assented when the prosecutor asked her if her written statement

would refresh her memory, and informed the trial court after a review of her

statement that she now recalled additional details.           The trial court

committed no error under these circumstances.

      {¶ 31} Durham further asserts the trial court improperly permitted: 1)

White to testify that he promised Harrell’s father he would “keep an eye out

for her”; and, 2) a police officer to testify Harrell decided to “press charges”

against Durham after the incident.          Durham contends this testimony

constituted hearsay in violation of Evid.R. 801(C) and 802.

      {¶ 32} Evid.R. 801(C) defines “hearsay” as “a statement, other than one

made by the declarant while testifying at trial or hearing, offered in evidence

to prove the truth of the matter asserted.” (Emphasis added.) By the terms

of Evid.R. 802, a witness is barred on hearsay grounds from testifying as to

the statements made by another when the statement is offered to prove the

truth of the matter asserted in the statement, and when the statement falls
                                      10

outside any exception to the rule against hearsay. State v. Carter (1995), 72

Ohio St.3d 545, 549, 651 N.E.2d 965.

      {¶ 33} To be inadmissible as hearsay, therefore, the witness must testify

about a statement. It follows that when the witness merely testifies about

his own declarations or observations, or actions taken as a result of another’s

decisions, this testimony does not fit the definition of Evid.R. 801(C), and it is

not prohibited by Evid.R. 802. State v. Mills (Mar. 20, 1997), Cuyahoga App.

No. 69788, citing Carter.       Neither of the instances of which Durham

complains in his second assignment of error fit within the prohibition against

hearsay.

      {¶ 34} White testified he made a promise to Harrell’s father and this

promise, in part, prompted White to check on her well-being. Similarly, the

police officer merely mentioned that the investigation proceeded because

Harrell cooperated with it.      Neither of these instances violated Evid.R.

801(C) and 802.     1    State v. Osborne, Knox App. No. 2005-CA-09,

2005-Ohio-6497.



      1The  testimony of which Durham complains might more accurately be termed
a part of the “res gestae” of the incident. According to Black’s Law Dictionary (4
Ed., 1951), “while often spoken of as an exception to the hearsay rule,” the “res
gestae” is “generally not such in fact, but ordinarily relates to statements which
because of their intimate relation to facts become a part of those facts and are
therefore admitted as such.”
                                    11

      {¶ 35} Since the trial court, therefore, committed no error in admitting

evidence, Durham’s first and second assignments of error are overruled.

      {¶ 36} In his third assignment of error, Durham argues that his

convictions result from “cumulative error.”     He cites neither particular

portions of the record nor any legal authority to support this argument. This

court, therefore, declines to address it.   App.R. 12(A)(2); State v. Watson

(1998), 126 Ohio App.3d 316, 710 N.E.2d 340. Durham’s third assignment of

error is overruled.

      {¶ 37} Durham argues in his fourth assignment of error that the trial

court erred in imposing consecutive sentences without providing findings and

reasons in support of those findings. He allows that the Ohio Supreme Court

specifically held in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845

N.E.2d 470, that such findings were not required, but he relies on Oregon v.

Ice (2009), 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 to assert that Foster

was incorrectly decided and must be overturned, thus reinstating R.C.

2929.14(E)(4), which Foster held unconstitutional.

      {¶ 38} However, the Ohio Supreme Court recently has addressed and

rejected Durham’s argument in State v. Hodge, 128 Ohio St.3d 1,

2010-Ohio-6320, 941 N.E.2d 768. Hodge held that the statutory provisions

are not revived. Id., paragraph two of the syllabus.
                                      12

      {¶ 39} Moreover, the supreme court also held that, unless the General

Assembly enacts new legislation requiring that findings be made, trial courts

are not obligated to engage in judicial fact-finding prior to imposing

consecutive sentences. Id., paragraph three of the syllabus; see, also, State v.

Townsend, Cuyahoga App. No. 94473, 2011-Ohio-86.

      {¶ 40} Durham’s fourth assignment of error, accordingly, is overruled.

      {¶ 41} In his fifth assignment of error, Durham claims that his trial

counsel provided ineffective assistance by failing to “object to any of the errors

raised in this brief.” Durham makes this claim despite his trial counsel’s

obvious effort on his client’s behalf, and his success in securing Durham’s

acquittal on two of the five counts of the indictment. State v. Bradley (1989),

42 Ohio St.3d 136, 538 N.E.2d 373, paragraphs two and three of the syllabus.

      {¶ 42} Once again, Durham neither argues anything specifically, nor

cites to any particular portion of the record to support his claim.            Id.

Therefore, this court answers Durham’s claim by quoting the following

portion of Watson:

      {¶ 43} “An appellate court may rely upon App.R.12(A) in overruling or

disregarding an assignment of error because of ‘the lack of briefing’ on the

assignment of error. Hawley v. Ritley (1988), 35 Ohio St.3d 157, 159, 519

N.E.2d 390, 392-393. It is not the duty of an appellate court to search the
                                        13

record for evidence to support an appellant’s argument as to any alleged

error.     State v. McGuire (Apr. 15, 1996), Preble App. No. CA95-01-001,

unreported, at 40, 1996 WL 174609, affirmed (1997), 80 Ohio St.3d 390, 686

N.E.2d 1112. ‘An appellate court is not a performing bear, required to dance

to each and every tune played on an appeal.’ Id., following State v. Lorraine

(Feb. 23, 1996), Trumbull App. No. 95-T-5196, unreported, at 9, 1996 WL

207676.

         {¶ 44} “Accordingly, we find that appellant has failed to comply with

App.R. 16(A) because he fails to present ‘reasons in support of the

contentions’ and for his ‘lack of briefing’ on his assignment of error.

Appellant’s * * * assignment of error is overruled based upon App.R.

12(A)(2).”

         {¶ 45} Since none of Durham’s assignments of error has merit, his

convictions and sentence are affirmed.

         It is ordered that appellee recover from appellant costs herein taxed.

         The court finds there were reasonable grounds for this appeal.

         It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s

convictions having been affirmed, any bail pending appeal is terminated.

Case remanded to the trial court for execution of sentence.
                                    14

     A certified copy of this entry shall constitute the mandate pursuant to




Rule 27 of the Rules of Appellate Procedure.



__________________________________
KENNETH A. ROCCO, JUDGE

MELODY J. STEWART, P.J., and
SEAN C. GALLAGHER, J., CONCUR
