State v. Russell , 106 N.E.3d 248 ( 2018 )

[Cite as State v. Russell, 2018-Ohio-518.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : C.A. CASE NO. 2017-CA-56
:
v. : T.C. NO. 2009-CR-873
:
CHRISTOPHER RUSSELL : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 9th day of February, 2018.
...........
ANDREW PICKERING, Atty. Reg. No. 68770, 50 E. Columbia Street, 4th Floor,
Springfield, Ohio 45501
Attorney for Plaintiff-Appellee
CHRISTOPHER RUSSELL, Inmate No. 646718, 670 Marion Williamsport Road, P.O. Box
1812, Marion, Ohio 43301
Defendant-Appellant, Pro se
.............
DONOVAN, J.
{¶ 1} This matter is before the Court on the June 9, 2017 pro se Notice of Appeal
of Christopher Russell. Russell appeals from the May 17, 2017 “Entry” issued by the
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Clark County Court of Common Pleas denying the release of personal property removed
from Russell’s home by investigators of the Clark County Sheriff’s Office. The trial court
determined that the items were “identified and admitted as exhibits during defendant’s
trial and are now part of the trial record * * * and not returnable.” We hereby affirm the
judgment of the trial court.
{¶ 2} Russell was convicted, after a jury trial, of rape, gross sexual imposition,
pandering obscenity involving a minor, and sexual battery. This Court affirmed his
conviction and 75-year sentence on September 21, 2012. State v. Russell, 2d Dist. Clark
No. 2011-CA-10, 2012-Ohio-4316.
{¶ 3} Russell and his family members have filed various motions regarding the
personal property that was seized from his home. For example, Russell’s wife, Armelita
Russell, filed a pro se “Motion for Return of Personal Property” on January 23, 2013.
The State responded on January 24, 2013, asserting that the “majority of the property
seized as part of this case (computers, computer components, etc.), contained child
pornography and other evidence of criminal acts.” The State further asserted that
Armelita “fails to specifically state what property she seeks to recover that is not evidence
or contraband.”
{¶ 4} On June 18, 2014, Russell himself filed a pro se “Motion for Return of
Property,” seeking “all property ceased [sic] during the execution of the warrant on
October 5, 2009 at * * * Weinland, New Carlisle, Ohio during the initiation of the action
beginning this case.” The State responded on July 1, 2014. On July 7, 2014, the trial
court issued an “Entry” ordering the State to provide, no later than July 17, 2014, a copy
of the property receipts listing the items in its possession taken from Russell’s residence
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on October 5, 2009. On July 24, 2014, Russell filed a response to the “Entry,” asserting
that no property receipts were received.
{¶ 5} On August 5, 2014, Russell filed a pro se “MOTION Continuing Effort of
Return of Property,” which lists multiple “articles” of property. The court scheduled a
hearing on February 12, 2015 regarding the property. On April 14, 2015, the court issued
an “Entry” that provides in part as follows:
Following a hearing and subsequent information provided by the
Clark County prosecutor’s office indicating that the property stone [sic] in
possession of the Clark County Sheriff’s Department does not contain any
contraband material, the court finds that the defendant’s motion is well
taken.
IT IS ORDERED that the personal property listed in the defendant’s
motion and currently in the possession of the Clark County Sheriff’s
Department be released to the defendant or his authorized designee.
{¶ 6} On January 20, 2017, Russell’s mother, Ellen Russell, filed correspondence
dated December 11, 2016 which provides: “This is concerning the notarized letter dated
February 17, 2016 and the list that is attached to it. The letter is still true and correct; the
articles in the mentioned letter have not been returned as ordered on February 12, 2015.”
Ellen’s affidavit provides:
***
Of Articles 1 through 20, numbers 11, 12, and 20 were returned to me, Ellen
Russell, on February 12, 2015, from the Clark Co[.] Courthouse[.]
Remaining items kept for further examination at prosecutor’s request[.]
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On May 7, 2015 remaining articles, except 6, 8, 10 and 19, were returned
to me, Ellen Russell, from the evidence room of Clark Co Sheriff’s office[.]
A list of articles is attached to this statement with articles 6, 8, 10, and 19
circled and initialed. The whereabouts of these articles is unknown to me,
Ellen Russell.
{¶ 7} The attached list of 20 articles has the following items circled and initialed
“ER.”:
Article 6: Kodak CW330 Easyshare Digital Camera, SN KCGFU54200209
Item not shown as instrumentality of a count of a charge
***
Article 8: Dell B-130 Inspiron Laptop PC, SN: 00043-705-517-037
Item not shown as instrumentality of a count of charge.
First 0 in SN may be a 6.
***
Article 10: Homebuilt PC with Mercury Eros Sticker.
Item not shown as instrumentality of a count of charge.
***
Article 19: Box of thee [sic] Trojan Condoms and Rite Aid Lubricant.
Item not shown as instrumentality of a count of charge.
{¶ 8} The trial court’s May 17, 2017 “Entry” provides as follows:
This matter is before the Court on the pro se motion of the defendant,
the defendant’s wife, Armelita Russell, and the defendant’s mother, Ellen
Russell for the return of personal property removed from the defendant’s
residence by investigators of the Clark County Sheriff’s Department. The
prosecuting attorney originally filed a response objecting to the return of
property used as evidence in the prosecution of the case.
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Subsequently, it was determined that a number of items had been
seized as part of the investigation which were not used as evidence during
the trial and which were not in themselves contraband. An entry was filed
ordering those items to be returned and they were turned over to the
defendant’s family.
The defendant’s mother is now demanding the return of five specific
items which she alleges should have been returned pursuant to the order
filed on February 12, 2015, but were not returned. She seeks the return of
the following:
1) Kodak digital camera
2) Dell B-130 Inspiron Laptop computer
3) Homebuilt PC with Mercury Eros Sticker
4) Box of Trojan condoms
5) Rite Aid Lubricant
Upon review of the court’s record, the Court finds that each of these
items were identified and admitted as exhibits during the defendant’s trial
and are now part of the trial record. As such, they are now part of the public
record of this case and not returnable.
Therefore, the Court finds the motion for the return of these items is
not well taken and the same is DENIED.
{¶ 9} Russell asserts two assignment of error herein, which we will consider
together. They are as follows:
THE CLARK COUNTY COURT OF COMMON PLEAS HAD NO
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SUBJECT MATTER JURISDICTION OVER THE ITEM FILED WHICH
BECAME THE RULING OF 17 MAY 2017 CONCERNING THE
PROPERTY ISSUES OF 2009-CR-0873.
And,
THE CLARK COUNTY COURT OF COMMON PLEAS IS
IGNORING THE SPIRIT AND LETTER OF THE LAW CONCERNING
CRIMINAL RULE 26.
{¶ 10} Russell presents the following “Issues”:
Issue 1: When a court lacks jurisdiction over an issue, it has no authority
to make a ruling in that issue. A ruling derived from an affidavit mistakenly
filed outside its attached case and construed as a motion must be
subsequently considered void. Issue is core to Error 1.
Issue 2: Items taken in the course of an investigation should be returned
to the owner or party with interest in the property at the earliest
convenience. Any record of the items used as exhibits not forfeited as an
instrumentality should also be returned with photographs substituted as
proof of the existence of the items. Only items relevant to an element of
the offense will be retained either as physical property or as a photographic
record. Issue is core to Error 2.
{¶ 11} Russell asserts as follows:
In the course of filing the appellate brief which became State v.
Russell, 2d Dist. Clark No. 16-CA-48, 2017-Ohio-7198, documents were
filed requesting a Writ of Mandamus concerning the property in question in
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this issue. A necessary affidavit to support this issue was delivered to the
court separately to be filed with the motion requesting the writ. Due to an
error with the filing, the motion requesting the writ was filed with the
appellate brief and was passed along with that brief (16-CA-48 ¶ 18). The
affidavit, delivered by Ellen Russell, was misfiled with 2009-CR-0873 and
construed as a motion to return property filed by an individual with interest
in the property. The Request for Writ of Mandamus related to that affidavit
is still pending as 17-CA-0052.
Mr. Russell simultaneously filed a request for a Writ of Prohibition
(2d Dist. Clark No. 17-CA-0057, denied) and a protective Notice of Appeal
which became this case.
{¶ 12} Russell asserts that “the property used as an exhibit are not supportive of
any element of a charged offense and therefore should be returned with photographs
retained as exhibits to show the item’s existence.” Russell asserts as follows:
Criminal Rule 26 stipulates that physical property under the control
of the Prosecuting Attorney should be returned to the owner at the earliest
possible time. This includes the time prior to trial. Property used and kept
must meet the relevancy requirements of the Ohio Evidence Rules. All the
items still in the possession of the State were used simply as a means of
proving the existence of the items. No where [sic] does the State link the
property itself directly to a charged act and they in no way raise the chance
of a charged act being committed from possible to probable; a threshold
necessity for any evidence to be admissible.
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The Prosecutor, via a[n] OBCII computer specialist, introduced items
from the “unallocated space” and “browser cache” of the tower computer
and laptop. This space consists of items that were deleted or automatically
moved to the computer via visits to a website. At no time were their dates
of use or evidence of attempts to access this data introduced as evidence
(in fact the deleted items contained no date information whatsoever.)
These items therefore cannot be said to be knowingly or actively possessed
by the owner of the computer and therefore are inadmissible as evidence
(United States v Flyer, 663 F.3d 911, United States v Dobbs, 629 F.3d
1199).
The digital camera introduced as evidence was not shown to have
produced any obscene images (in fact no obscene images were introduced
as evidence), therefore it was not relevant to any charged offense and only
proved to show that the defendant had the ability to create digital images
(though the camera itself belonged to his spouse, a fact not mentioned in
the record).
The box of condoms and lubricant were never fingerprinted to show
who may have handled them and no effort to show they existed at the time
of a charged offense was made (contrary to any order by the bench to only
introduce evidence relevant to the time charged).
As these items were only introduced to demonstrate the existence of
items mentioned during testimony, the same logic applied to the defendant’s
house would have permitted the State to seize that house as evidence and
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send the jury on a tour of the house to show its existence (and then never
let the defendant re-enter). Counsel for the State did not do this, instead
showing the jury photographs of the house. In any case, the existence of
the house in general (like the other property) was not supportive of any
actual act and therefore did not contribute any weight or sufficiency of
evidence to the State’s case.
{¶ 13} Russell asserts that he “has been attempting to have property taken from
his residence returned now for over five years.” He asserts that the “original reason for
the non-return of property upon Mr. Russell’s request was the definite claim of
contraband. This claim was never demonstrated to be factual and all subsequent rulings
by the court are absent any statements affirming this claim.” According to Russell, “the
claim that Mr. Russell’s property contained contraband constitutes perjury as it was likely
a deliberate lie.” He argues that his property “has never been subject to a forfeiture
hearing. Therefore they have been retained by the State without due process.” Russell
asserts that any “member of the Bar participating in the effort to retain the property is
complicit with this deprivation of civil right.” Finally, Russell argues that the “above
questions of ethics demonstrate clear evidence which question the fitness of members of
the Clark County Prosecutor’s Office to function as legal professionals.”
{¶ 14} Regarding Russell’s first assignment of error, the State responds that
Russell “claims that the letter/affidavit was not intended to be filed in the criminal case,
but does not show in the record how he can determine the intent of his mother, who
actually filed the letter/affidavit.” According to the State, the “letter/affidavit was filed in a
criminal case, over which the trial court possessed subject matter jurisdiction. The trial
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court’s ruling was not ‘void.’ ”
{¶ 15} In response to Russell’s second assignment of error, the State asserts that
Crim.R. 26 does not apply. According to the State, the “five items in question are not
under the control of the Clark County Prosecuting Attorney – they were admitted as
exhibits at trial, and are now under the control of the trial court. Moreover, the use of
photographs is conditioned on being under ‘appropriate’ circumstances, and only ‘by court
order.’ ” The state argues that there “is no court order regarding photographs of the five
items being admitted as exhibits in lieu of the actual items.”
{¶ 16} The State further asserts that a “trial court has the power to decide how to
construe ‘no-name’ motions,” and the trial court “properly construed the letter/affidavit as
a motion for the return of property.” The State asserts that the “five items have been
admitted into evidence, and are no longer under the control of the Clark County
Prosecuting Attorney or any other law enforcement agency. This difference makes
cases like State v. Bolton, 2d Dist. Montgomery No. 27154, 2017-Ohio-7263, inapposite.”
According to the State, “[f]orfeiture is not the issue; rather, the real issue is the power of
a trial court to control exhibits admitted into evidence.”
{¶ 17} The State directs our attention to Sup.R. 26(F). The State asserts that
given “the continued efforts by Defendant to re-litigate his case * * * release of the five
items would be premature. Thus, the trial court’s decision not to release the five items
from the custody of the court/the clerk of court was not an abuse of discretion.”
{¶ 18} Attached to the State’s brief is a copy of the trial court’s decision of May 17,
2017. Also attached is a Decision and Final Judgment Entry issued July 16, 2015, by
this Court that provides as follows:
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Relator, Christopher Russell, has filed a petition for a writ of
mandamus and/or procedendo. In the first paragraph of his petition,
Russell asks this court to compel respondent, Judge Richard J. O’Neill of
the Clark County Common Pleas Court, to “resolve the issue of property
pertaining to Case 2009-CR-0873 or direct [Respondent] to rule upon the
same.” In the final paragraph, Russell asks the court to grant his petition
and “issue a Writ of Mandamus and/or Procendo [sic] instructing the
Honorable Richard J. O’Neill to immediately release the property and
contact the individuals listed in the attached motions concerning the
availability of the property for retrieval.”
{¶ 19} This Court noted that the trial court held the February 12, 2015 hearing
regarding Russell’s property and quoted from the April 14, 2015 “Entry” ordering the
release of the property. This Court then determined as follows:
On May 7, 2015, this court ordered Russell to show cause why his
petition for a writ of mandamus and/or procedendo should not be dismissed
as moot, where, to the extent mandamus relief was available to Russell to
compel respondent to rule upon the pending motion(s) for the return of
Russell’s personal property, it appeared respondent had provided the relief
sought.
Russell filed a response to the court’s order to show cause on May
22, 2015. There, he argues that the April 14, 2015 entry “appears
incomplete as to the disposition of four items of property which were not
returned.” Russell states that the prosecution argued during the February
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hearing that these four items contained contraband and should not be
returned. According to Russell, however, respondent’s April 14, 2015
Entry does not address the prosecution’s argument but “indicates on its face
that all property should be returned.” Ultimately, Russell argues that
respondent has not conducted a lawful forfeiture hearing related to any
property taken in relation to case no. 2009-CR-0873.
Upon consideration, this court does not find Russell’s response well-
taken. It is well-established that mandamus or procedendo may be used
to compel an inferior tribunal to exercise its judgment or to proceed to the
discharge of its function, but they cannot control judicial discretion. State ex
rel. Ney v. Niehaus, 33 Ohio St.3d 118, 119, 515 N.E.2d 914 (1987); R.C.
2731.03. Here, respondent has ruled upon the pending motion(s) for the
return of Russell’s personal property, thereby exercising his judgment. If
Russell seeks to challenge respondent’s ruling, the proper vehicle is an
appeal. Neither mandamus nor procedendo will issue when the relator has
an adequate legal remedy. State ex rel. Mace v. Lanzo, 7th Dist. Mahoning
No. 09 MA 153, 2010-Ohio-611, ¶ 6.
Russell’s petition for a writ of mandamus and/or procedendo is
DENIED, and this matter is DISMISSED.
{¶ 20} In Reply to the State’s brief, Russell asserts that he “has requested Ellen
Russell, the individual who submitted the affidavit the court has construed as a request
for property, to submit an additional affidavit to the court clarifying her intentions.
Therefore, this should satisfy the question of law as to whether the Common Pleas court
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had initial subject matter jurisdiction.”
{¶ 21} Russell further asserts as follows:
As to the second assignment of error, the State may be technically
correct that once an item is an exhibit, Crim.R. 26 may not apply. However,
Crim.R. 26 is to be applied before the items become exhibits.
Consideration under Crim.R. 26 is to be done before trial and images taken
of any item who’s [sic] existence is relevant to the case but not an
instrumentality of any element of a charged offense. As to the point of
[there] being no court order to have the items photographed, there was no
need as the Clark County Sheriff photographed the items and these same
photographs were submitted as evidence * * *. The State has not detailed
why the physical items are still needed as evidence as the only issues they
can argue in further litigation of the case on appeal is what is in the record
at the time. * * *
{¶ 22} Russell asserts as follows:
The State cannot use the discretion inherent to Criminal Rule 26 to
avoid addressing the issues of relevance inherent to the rule. The tower
computer, laptop computer, the digital camera, the condoms and lubricant
were never linked to an element of any offense and were only used to
demonstrate their existence. Under the spirit-of-the-law doctrine, Sup.R.
26(2) would indicate holding unnecessary physical property while having
pictures in the record would be contrary to that spirit as the goal is
“efficiency” and the “[simplification of] the maintenance, preservation, and
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destruction of court records.”
The purpose of Appellant’s effort to have this property returned has
been to have it independently examined for the information requested in 17-
CA-0052 and the only logical reason for the State not to return the property
is to avoid the discovery that the information retrieved from the tower and
laptop computer was outside the boundaries of the temporal limits set by
the Court of Common Pleas for the admissibility of evidence. The tower
was built after the last alleged incident and the laptop had drive cleaning
software installed and run after the last alleged incident. Additionally, as the
required image for the pandering charge was never found, the camera
cannot be said to have produced any offensive images. Lastly, the
condoms and lubricant were never fingerprinted and, as the product was
still either in a wrapper or the tube, could not have been used in any act of
any charged offense.
{¶ 23} Russell asserts that the State’s initial response to his effort to reclaim his
property by claiming that the items were contraband “has proven incorrect.” He argues
that “the retention of the property serves no purpose as far as any continued investigation
and prevents the presentation of potentially exculpatory information. The State is not
harmed by the release of this property, yet the Appellant is.”
{¶ 24} On November 9, 2017, correspondence from Ellen Russell addressed to
this Court was filed. It provides:
To the 2nd Dist. Court of appeals concerning case number 17-CA-
0056; the item I filed was an attachment to a motion by Christopher M[.]
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Russell intended for the appellate court and not an attempt by me to obtain
the property. The item was a supportive affidavit and at no time have I filed
to obtain property from the Court of Common Pleas.
{¶ 25} We note that on May 26, 2017, Russell filed in this Court a “Request for
Writ of Mandamus,” asserting that the property at issue “was ordered returned in the
Judgment Entry of April 14.”
{¶ 26} We initially conclude that the trial court had subject matter jurisdiction over
Russell’s case. R.C. 2931.03. Further, “[c]ourts may recast irregular motions into
whatever category necessary to identify and establish the criteria by which the motion
should be judged. State v. Bush, 96 Ohio St.3d 235, 2002-Ohio-3993, 773 N.E.2d
522, citing State v. Reynolds (1997), 79 Ohio St.3d 158, 679 N.E.2d 1131.” State v.
Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d 431, ¶ 12. We further find that
the trial court properly categorized Ellen Russell’s filing as a demand for the return of the
five items and ruled upon it. Ellen’s November 9, 2017 filing is of no effect. Russell’s
first assignment of error is accordingly overruled.
{¶ 27} Regarding Russell’s second assignment of error, Crim.R. 26, upon which
Russell relies, provides as follows:
Physical property, other than contraband, as defined by statute,
under the control of a Prosecuting Attorney for use as evidence in a hearing
or trial should be returned to the owner at the earliest possible time. To
facilitate the early return of such property, where appropriate, and by court
order, photographs, as defined in Evid. R. 1001(2), may be taken of the
property and introduced as evidence in the hearing or trial. * * *
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{¶ 28} We agree with the State that Crim.R. 26 does not apply to the items
identified in Ellen Russell’s motion (as Russell concedes in his reply brief). There was
never a court order to facilitate the early return of the property by means of photographs
to be used at trial. Trial herein occurred in January of 2011, seven years ago, and the
items are no longer in the control of the prosecutor.
{¶ 29} It is well settled that “[t]he admission or exclusion of evidence rests soundly
within the trial court’s discretion.” State v. Black, 181 Ohio App.3d 821, 2009-Ohio-1626,
911 N.E.2d 309, ¶ 13. “Relevant evidence” means evidence having any tendency to
make the existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence.” Evid. R. 401.
The record reflects that the box of condoms was admitted as State’s Exhibit 16-A; the
lubricant was admitted as State’s Exhibit 16-B; the laptop computer was admitted as
State’s Exhibit 21-A; the Mercury Eros computer tower was admitted as State’s Exhibit
22; and the Kodak camera was admitted at State’s Exhibit 30-A. The court’s order of
April 14, 2015 clearly applied to the property that was not contraband and that was still in
the possession of the sheriff’s department. Russell is not entitled to the return of the
exhibits used to support his convictions. Further, it “is well settled that ‘any issue that
could have been raised on direct appeal and was not is res judicata and not subject to
review in subsequent proceedings.’ * * *.” State v. Woullard, 2d Dist. Montgomery No.
27216, 2017-Ohio-2614. ¶ 12. Finally, we note that to the extent that Russell may be
suggesting that the computer tower and laptop computer were inadmissible, the record
reflects that Russell did not object to their admission, and any such argument is waived.
For the foregoing reasons, Russell’s second assignment of error is overruled, and the
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judgment of the trial court is affirmed.
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WELBAUM, P.J. and FROELICH, J., concur.
Copies mailed to:
Andrew Pickering
Christopher Russell
Hon. Richard J. O’Neill