[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
                                                                                          -2-


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
                                                                                             -3-


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[.]
                                                                                           -4-


         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.
                                                                                       -5-


             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
                                                                                -6-


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
                                                                                      -7-


      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.
                                                                                -8-


         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
                                                                                               -9-


       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
                                                                                          -10-


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:
                                                                                       -11-


             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
                                                                                         -12-


      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
                                                                                        -13-


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
                                                                                          -14-


       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[.]
                                                                                          -15-


       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. * * *
                                                                                          -16-


       {¶ 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
                                                           -17-


judgment of the trial court is affirmed.

                                           .............

WELBAUM, P.J. and FROELICH, J., concur.

Copies mailed to:

Andrew Pickering
Christopher Russell
Hon. Richard J. O’Neill
