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State v. Russell

Court of Appeals of Ohio, Twelfth District

July 15, 2013

STATE OF OHIO, Plaintiff-Appellee,
v.
CHAD ALLEN RUSSELL, Defendant-Appellant.

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2011-12-2104.

Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government Services Center, for plaintiff-appellee

Neal D. Schuett, for defendant-appellant

OPINION

RINGLAND, P.J.

{¶ 1} Defendant-appellant, Chad Allen Russell, appeals his conviction in the Butler County Common Pleas Court for breaking and entering and possessing criminal tools. For the reasons that follow, we affirm Russell's convictions for those offenses.

{¶ 2} On December 14, 2011, at approximately 11:00 p.m., one of JP Transportation's drivers, Robert Jones, came to work and circled around behind the company's garage since the company had experienced previous break-ins. When Jones saw a pickup truck that did not appear to belong to any of his fellow employees, he called the Middletown Police Department.

{¶ 3} Middletown Police Officer Ryan Morgan and his partner, Officer Nelson, were dispatched to JP Transportation to investigate. The officers traveled to the scene in "black mode, " i.e., with their overhead lights turned off so as not to alert any suspects. Upon arrival, the officers saw the parked truck, which was unoccupied, and noticed that, directly behind it, was a cut in the fence that surrounds JP Transportation, which led them to believe that someone may have entered the premises through the cut.

{¶ 4} After walking around for 15 to 20 minutes, the officers announced, "Middletown Police. If anyone's in here, come out." However, no one responded. The officers were soon joined by Officer Justin Camper and Officer Dennis Jordan, who brought his canine, Gunner. After waiting approximately 20 minutes to let the area "clear out" from the other officers' scent, Officer Jordan walked Gunner over to where the truck was parked. When Officer Jordan and Gunner were about 100 yards away from the cut in the fence, Gunner started showing signs that he was smelling a person. When they were about 80 yards away from the cut in the fence, Officer Jordan called out three times, "Police canine, come on out." When he called out the third time, Officer Jordan warned that the dog would bite anyone who refused to come out. When Gunner began "dragging" him, Officer Jordan unhooked the dog from his leash to allow it to go to whatever it smelled. Gunner ran past the truck toward the cut in the fence. Russell then came out through the cut in the fence. Gunner took down Russell, and the officers apprehended him.

{¶ 5} Officer Jordan noticed that there was mud on Russell's thighs, knees and belly, which made it appear that he had been crawling. Officer Jordan led Gunner through the property to search for any other suspect that might have been hiding there. Gunner pulled Officer Jordan into a thicket on the premises where he discovered a glove, a flashlight and some tools. Officer Jordan also saw that there was "fresh mud" on the steps and inside the door of an office trailer on the premises of JP Transportation.

{¶ 6} Russell was indicted for breaking and entering in violation of R.C. 2911.13(A) and possessing criminal tools in violation of R.C. 2923.24, with both charges being fifth-degree felonies. Following a jury trial, he was convicted of breaking and entering and the lesser included offense of first-degree misdemeanor possessing criminal tools. He was sentenced to 11 months in prison for breaking and entering and 180 days for misdemeanor possessing criminal tools, and was ordered to serve both sentences concurrently.

{¶ 7} Russell now appeals, assigning the following as error:

{¶ 8} Assignment of Error No. 1:

{¶ 9} APPELLANT WAS DENIED A FAIR TRIAL DUE TO PROSECUTORIAL MISCONDUCT.

{¶ 10} Assignment of Error No. 2:

{¶ 11} THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT BY ALLOWING THE STATE'S WITNESS TO PROFFER AN IMPROPER OPINION.

{¶ 12} Assignment of Error No. 3:

{¶ 13} THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT WHEN IT IMPROPERLY INSTRUCTED THE JURY.

{¶ 14} Assignment of Error No. 4:

{¶ 15} APPELLANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL WERE VIOLATED WHEN HE RECEIVED ...


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