State v. Durham

[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
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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
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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.
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{¶ 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
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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
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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
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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
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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,
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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
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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.”
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{¶ 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.
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{¶ 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
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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.
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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