State v. Russell
2013 Ohio 3079
Ohio Ct. App.2013Background
- Defendant Chad Russell was convicted in Butler County Common Pleas Court of breaking and entering (R.C. 2911.13(A)) and possessing criminal tools (R.C. 2923.24), with convictions entered for the offenses and sentences of 11 months and 180 days, to be served concurrently.
- Officers investigated JP Transportation after a concerned employee reported a suspicious truck and a fence cut behind the premises.
- A police canine alerted on Russell as he emerged through the fence cut; he was found with various tools.
- Gunner the canine located in the vicinity a glove, a flashlight, and tools near an office trailer; mud on Russell suggested crawling.
- Russell argued the fence area did not constitute an unoccupied structure and challenged multiple trial rulings, including admissibility of lay and expert testimony and prosecutorial conduct, on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the fenced-in yard constitutes an unoccupied structure for 2911.13(A). | State argues fence area qualifies as unoccupied structure. | Russell contends yard is not an unoccupied structure due to hole in fence. | Fenced-in premises can be an unoccupied structure; instruction upheld. |
| Admission of Officer Camper’s opinion on exhaust pipe cutting. | State maintains testimony was lay expert-like; admissible. | Defendant argues improper expert opinion; possibly inadmissible. | Lay opinion admissible; some aspects as lay opinion, others were problematic but harmless. |
| Prosecutor’s personal belief about theft during rebuttal. | Prosecutor stated personal belief to bolster guilt. | Such statements are improper and prejudicial. | Error not plain error given strong evidence and curative instruction; assigns no reversible error. |
| Ineffective assistance of counsel claims. | Counsel failed to object to certain testimonies/e-mails. | Counsel performance deficient and prejudicial. | No ineffective assistance; decisions were reasonable and not prejudicial. |
| Sufficiency and weight of the evidence to support breaking and entering and tools charges. | Evidence supported conviction. | Evidence insufficient/weighty to support verdict. | Evidence sufficient and not against the manifest weight. |
Key Cases Cited
- State v. Carroll, 62 Ohio St.2d 313 (Ohio 1980) (defines unoccupied structure in breaking and entering context)
- State v. Chambers, 2006-Ohio-4889 (8th Dist. 2006) (broadens ‘structure’ scope under 2909.01(C))
- State v. Lewis, 192 Ohio App.3d 153 (5th Dist. 2011) (distinguishes lay vs. expert opinion under Evid.R. 701-702)
- State v. Brozich, 108 Ohio St.3d 559 (2003) (burglary elements and intent to steal need not prove actual theft)
- State v. Gilbert, 2011-Ohio-4340 (12th Dist. 2011) (prosecutor’s personal belief improper; but not reversible error here)