[Cite as State v. Russell,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : CASE NO. CA2012-08-156

: OPINION - vs - 7/15/2013 :

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, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Neal D. Schuett, 121 West High Street, Oxford, Ohio 45056, for defendant-appellant

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 Butler CA2012-08-156

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

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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 INEFFECTIVE

ASSISTANCE OF COUNSEL.

{¶ 16} Assignment of Error No. 5:

{¶ 17} THE STATE PRESENTED INSUFFICIENT EVIDENCE TO CONVICT

APPELLANT OF BREAKING AND ENTERING, IN VIOLATON OF R.C. §2911.13(A).

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{¶ 18} Assignment of Error No. 6:

{¶ 19} APPELLANT'S CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF

THE EVIDENCE.

{¶ 20} We shall address Russell's assignments of error in an order that will facilitate

our analysis of the issues raised therein.

{¶ 21} In his third assignment of error, Russell argues the trial court erred when it

instructed the jury that the "unoccupied structure in this matter is defined as the fenced-in

yard protecting the property and activities of a place of business." We disagree with this

argument.

{¶ 22} Russell was indicted for, and convicted of, breaking and entering in violation of

R.C. 2911.13(A), which provides that "[n]o person by force, stealth, or deception shall

trespass in an unoccupied structure with purpose to commit therein any theft offense as

defined in section 2913.01 of the Revised Code or any felony."

{¶ 23} R.C. 2909.01(C) defines an "occupied structure" as meaning

any house, building, outbuilding, watercraft, aircraft, railroad car, truck, trailer, tent, or other structure, vehicle, or shelter, or any portion thereof, to which any of the following applies:

(1) It is maintained as a permanent or temporary dwelling, even though it is temporarily unoccupied and whether or not any person is actually present.

(2) At the time, it is occupied as the permanent or temporary habitation of any person, whether or not any person is actually present.

(3) At the time, it is specially adapted for the overnight accommodation of any person, whether or not any person is actually present.

(4) At the time, any person is present or likely to be present in it.

{¶ 24} The Ohio Revised Code does not define the term "unoccupied structure," but in

State v. Carroll,

(1980), the court stated that an unoccupied

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structure would include any structure not classified as an occupied structure.

{¶ 25} In State v. Barksdale, 11th Dist. Lake No. 12-117 (Dec. 31, 1987),

, *2-3, the Eleventh District Court of Appeals concluded that a fenced-in yard was not

an "unoccupied structure" for purposes of the breaking and entering statute. In support of its

determination, the Eleventh District noted that "the closest definition of what constitutes a

structure is that of ' * * * any house, building, outbuilding, watercraft, aircraft, railroad car,

truck, trailer, tent, or other structure, vehicle, or any portion thereof * * *,' which is contained in

R.C. 2909.01" and that the "specific enumerations contained in the statute evidence an

inherent element of confinement, housing, or protection not found in a fenced in yard." Id. at

*2.

{¶ 26} The Eleventh District reasoned that, since "the enumerations contained in R.C.

2909.01 are limited to buildings, erections, or vehicles evidencing some form of confinement

generally for housing, quasi housing, or safety purposes[,]" "the very openness of a fenced in

yard acts to exclude it from those items contained in R.C. 2909.01." Id. Consequently, the

Eleventh District concluded that "a fenced in field does not constitute an unoccupied

structure within the purview of R.C. 2909.01." Id.

{¶ 27} In State v. Chambers, 8th Dist. Cuyahoga No. 87221,

,

the Eighth District Court of Appeals refused to follow Barksdale, noting that when the General

Assembly included the phrase "or other structure" in R.C. 2909.01(C), the legislature

"evinced a strong intent not to make the list of enumerated examples exclusive." The Eighth

District further noted that "[t]his broad phrase clearly implies that entities not listed in R.C.

2909.01(C) could also be deemed 'structures' for purposes of relevant statutes. In other

words, the list is illustrative, not exclusive."

{¶ 28} The Eighth District also stated:

The language of [R.C. 2909.01(C)] furnishes no express criterion that would restrict a phrase as general as "or other structure." The -5- Butler CA2012-08-156

Barksdale court, however, found that " * * * each of the specific enumerations contained in the statute evidence an inherent element of confinement, housing, or protection not found in a fenced in yard." Barksdale, supra at 2. We agree that the statutory examples imply these elements. We do not agree, however, that these elements cannot be found in a fenced-in and locked yard in which scrap has been located and is part of a business. On the contrary, such a fenced-in yard may evidence an inherent element of confinement, housing, or protection. The crime of breaking and entering, just like the crime of burglary, seeks to protect entities that are confined, housed, or protected. The fenced-in yard in this case sought to do exactly that. There is no inconsistency between the three elements Barksdale cites and those found in a fenced-in yard such as the one in the case at bar.

Chambers at ¶ 17.

{¶ 29} Russell asserts that Chambers is inapplicable to this case since, here, there

was a large hole in the fence, and therefore the fence in this case did not provide the kind of

protection that was provided by the "fenced-in and locked yard" at issue in Chambers. In

support of his argument, he points to the testimony of Officer Jordan, who testified that, even

though he was six feet in height and weighed 220 pounds, the hole in the fence was big

enough to allow him "to crawl through [it] very easily," and that the hole had been in the fence

for as many as 13 years. Russell contends that the hole in the fence surrounding JP

Transportation placed the fence in such a state of disrepair that it could not qualify as an

unoccupied structure, for purposes of R.C. 2911.13(A). We find this argument unpersuasive.

{¶ 30} While the fence may not have been sufficient to keep everyone out of the

premises, it nevertheless provided some degree of protection for the buildings and

equipment that are kept on the premises. Therefore, we conclude that the fenced-in

premises at JP Transportation constituted an "unoccupied structure" for purposes of the

breaking and entering statute in R.C. 2911.13(A), and therefore the trial court did not abuse

its discretion in instructing the jury as it did.

{¶ 31} Consequently, Russell's third assignment of error is overruled.

{¶ 32} In his second assignment of error, Russell asserts that the trial court erred in -6- Butler CA2012-08-156

admitting Officer Camper's opinion testimony regarding pipe cutting since it did not meet the

requirements for either expert opinion testimony under Evid.R. 702 or lay opinion testimony

under Evid.R. 701.

{¶ 33} The police recovered an exhaust pipe and tips from behind the driver's seat of

Russell's truck, which were admitted into evidence at Russell's trial. When the state asked

Officer Camper if he had "ever worked with exhaust tips and pipes and that kind of stuff[,]"

Officer Camper testified that, before he became a police officer, he was employed for two

years in the shipping and receiving department of TJ Dyer, a company that employed pipe

fitters and plumbers. When the state asked him why he believed the exhaust pipe found in

Russell's pick-up truck had been "freshly cut," Officer Camper testified that "[t]he cut on the

tip of this [i.e., the exhaust pipe] had perforated the edges, and it was shiny which indicated

that the cut was fresh" and "[t]here was no rust on it." When the state asked Officer Camper

where the exhaust pipe normally would be cut to put a new tip on it, Russell's defense

counsel raised an objection, which the trial court overruled. Officer Camper then testified,

"[i]n my opinion, if you're going to cut the exhaust [pipe] to change the tip, to reweld [sic] it,

you're going to do it on the original joint[.]" Officer Camper then explained where the original

joint on the exhaust pipe was located, which was right at the spot of a "rust ring" on the

exhaust pipe.

{¶ 34} The state asserts that Officer Camper's testimony was not admitted as expert

opinion testimony under Evid.R. 702, but as lay opinion testimony under Evid.R. 701. The

state contends that Officer Camper's testimony that the cut on the exhaust pipe was "fresh"

since "[t]he cut on the tip of [the exhaust pipe] had perforated the edges, and it was shiny"

and "[t]here was no rust on it," was admissible as lay opinion testimony under Evid.R. 701,

because it was rationally based on his perception and was helpful to the jury.

{¶ 35} We agree that Officer Camper's testimony that the exhaust pipe had been

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"freshly cut" since the cut had perforated the edges of the exhaust pipe and that the portion

of the exhaust pipe where the cut was made was "shiny" and there was no rust, was

admissible as lay opinion testimony, under Evid.R. 701, since it was rationally based on

Officer Camper's perception and was helpful to the jury. However, the question of whether

Officer Camper's testimony regarding where an exhaust pipe normally would be cut in order

to put a new exhaust tip on it was admissible as lay opinion or expert testimony under Evid.R.

701 is more problematic.

{¶ 36} As discussed in State v. Lewis,

,

, ¶ 23

(5th Dist.), a distinction exists between lay person opinion testimony and expert opinion

testimony, in that lay person opinion testimony "results from a process of reasoning familiar

in everyday life, while expert opinion testimony results from a process of reasoning that only

specialists in the field can master."

{¶ 37} The state acknowledges that the record fails to show that Officer Camper was

qualified under Evid.R. 702 to give expert testimony on this subject matter. However, even if

the trial court erred in admitting, as lay person opinion testimony under Evid.R. 701, Officer

Camper's testimony regarding where an exhaust pipe normally would be cut in order to put a

new exhaust tip on it, the error was harmless given the overwhelming nature of the state's

other evidence against Russell that established his guilt on the charges of which he was

convicted.

{¶ 38} The state was not required to show that Russell actually stole something at JP

Transportation in order to convict him of the charge of breaking and entering under R.C.

2911.13(A), but instead, was merely required to show that Russell trespassed on an

unoccupied structure with the purpose of committing a theft offense, as defined in R.C.

2913.01, or any felony. R.C. 2911.13(A). See also State v. Brozich,

,

561 (1923) ("The only element of larceny necessary to a charge of burglary is an intent to

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steal, not the actual stealing").

{¶ 39} Here, Russell's purpose or intent to commit a theft offense easily could be

inferred from his presence on JP Transportation's premises at 11:00 p.m., at which time he

was found with a number of criminal tools in his possession. The defense attempted to prove

that the reason Russell was on the premises of JP Transportation at 11:00 p.m. that night

was to look for his family's dogs. However, none of the officers who were at the premises for

approximately one-half hour prior to Russell's arrest heard anyone calling for a dog.

Moreover, even though the officers were calling for anyone present on the premises to show

themselves during that one-half hour, Russell, who ostensibly was on the premises for an

innocent reason, made no attempt to respond to them until Officer Jordan issued his warning

that his police dog would bite anyone who refused to come out.

{¶ 40} In light of the foregoing, Russell's second assignment of error is overruled.

{¶ 41} In his first assignment of error, Russell argues he was denied a fair trial

because the prosecutor engaged in misconduct by expressing his personal belief that the

exhaust pipe and tips found in his truck had been stolen by him. Russell contends that the

prosecutor's statements (1) "bolstered" Officer Camper's "improper opinion testimony,"

indicating the exhaust pipe and tips found in the backseat of his truck were stolen by him,

and (2) "directly attacked" the credibility of two of his witnesses, namely, his best friend,

Dennis Spaniel, who testified that he had given the exhaust pipe and tips to Russell, and

Spaniel's fiancée, Samantha Bolin, who testified that she bought those items from Craig's

List.

{¶ 42} During the state's rebuttal argument, the prosecutor stated that it was his

personal belief that the exhaust pipe and tips were stolen. He made this statement in the

context of telling the jurors that they did not have to believe that Russell stole the exhaust

pipe and tips, in order for them to find him guilty of the charges that had been brought against

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him, and that the jurors could find Russell guilty if they simply believed that he went onto the

premises of JP Transportation "to steal anything."

{¶ 43} The prosecutor erred by expressing his personal belief that the exhaust pipe

and tips were stolen.1 As this court stated in State v. Gilbert, 12th Dist. Butler No. CA2010-

09-240,

, ¶ 46, "[a] prosecutor may comment upon the testimony and

suggest the conclusions to be drawn from it, but a prosecutor cannot express his personal

belief or opinion as to the credibility of a witness or as to the guilt of the accused, or go

beyond the evidence which is before the jury when arguing for a conviction." However,

Russell failed to object at trial to the prosecutor's statements. Therefore, in order for the

prosecutor's statements to constitute reversible error, they must constitute plain error.

{¶ 44} An alleged error constitutes plain error only if the error is "obvious" and only if it

can be said that "but for the error, the outcome of the trial clearly would have been

otherwise." State v. Lang,

,

, quoting State v.

Long,

(1978), paragraph two of the syllabus. "Notice of plain error 'is to be

taken with the utmost caution, under exceptional circumstances and only to prevent a

manifest miscarriage of justice.'" Lang, quoting Long, paragraph three of the syllabus.

{¶ 45} The prosecutor's error in stating his personal belief that the exhaust pipe and

tips were stolen did not rise to the level of plain error in light of the overwhelming evidence of

Russell's guilt. Also, the trial court issued a cautionary instruction to the jurors, informing

them that it was their responsibility to "decide all disputed questions of fact[,]" and reminding

them "that statements of attorneys are not evidence."

{¶ 46} Nevertheless, we would remind the state that a prosecutor cannot express his

personal belief or opinion as to the credibility of a witness or as to the guilt of the accused.

1. The better practice would be to use "I submit that the evidence shows that the exhaust pipe and tips were stolen." - 10 - Butler CA2012-08-156

Gilbert,

at ¶ 46. Expressions of personal opinion by a prosecutor are "'a

form of unsworn, unchecked testimony and tend to exploit the influence of the prosecutor's

office and undermine the objective detachment that should separate a lawyer from the cause

being argued.'" State v. Baldev, 12th Dist. Butler No. CA2004-05-106,

, quoting State v. Rahman,

(1986).

{¶ 47} Consequently, Russell's first assignment of error is overruled.

{¶ 48} In his fourth assignment of error, Russell argues his federal and state

constitutional rights to due process and a fair trial were violated because he received

ineffective assistance of counsel. We find this argument unpersuasive.

{¶ 49} To prevail on an ineffective-assistance-of-counsel claim, a defendant must

show that (1) his counsel's performance was deficient in that it fell below an objective

standard of reasonableness, and (2) he was prejudiced by that deficient performance in that

there is a reasonable probability that, but for his counsel's deficient performance, the

outcome of his trial would have been different. Strickland v. Washington,

, 687-

694,

(1984). "A reasonable probability is a probability sufficient to undermine

confidence in the outcome."

.

{¶ 50} Russell argues his trial counsel provided him with ineffective assistance by

failing to have Bolin identify several e-mails, which led to their being excluded from evidence.

Russell asserts that the e-mails would have provided "crucial evidence" in support of the

defense's theory that he was not in possession of stolen property on the night in question

since the e-mails could have proved that the exhaust tips found in his vehicle were legally

purchased. However, the e-mails that were excluded were merely cumulative to Bolin's and

Spaniel's testimony. Further, as we have stated earlier, it was not necessary for the state to

prove that Russell actually stole the exhaust pipe and tips in order for the state to obtain a

conviction on the offenses with which he was charged.

- 11 - Butler CA2012-08-156

{¶ 51} Russell also argues his trial counsel provided him with ineffective assistance by

failing to object to Officer Camper's opinion testimony regarding the perforations on the

exhaust pipe and that the exhaust pipe was "freshly cut." However, as explained earlier,

Officer Camper's testimony that the exhaust pipe was "freshly" cut because the cut on the

exhaust pipe "had perforated the edges, and it was shiny" was admissible as lay opinion

testimony under Evid.R. 701, because it was rationally based on his perception and was

helpful to the jury.

{¶ 52} Finally, Russell argues his defense counsel provided him with ineffective

assistance by failing to object to the prosecutor's statements that it was his personal belief

that the exhaust pipe and tips were stolen. However, Strickland provides that a reviewing

court must afford broad deference to a defense counsel's strategic and tactical trial

decisions.

, Here, defense counsel's decision not to object to the prosecutor's

statements could be viewed as an objectively reasonable trial tactic on his part, and even if it

could not, it cannot be said that Russell was prejudiced by this alleged performance error to

the extent necessary under Strickland to establish an ineffective assistance claim.

{¶ 53} As a result, Russell's fourth assignment of error is overruled.

{¶ 54} In his fifth and sixth assignments of error, Russell contends his convictions

were contrary to the sufficiency and weight of the evidence. These arguments lack merit.

There was ample evidence presented on each of the elements of breaking and entering and

the first-degree misdemeanor offense of possessing criminal tools to allow a reasonable juror

to convict him of those offenses, and there is no evidence that the jury lost its way in deciding

the evidentiary conflicts in this case.

{¶ 55} Accordingly, Russell's fifth and sixth assignments of error are overruled.

{¶ 56} Judgment affirmed.

S. POWELL and PIPER, JJ., concur. - 12 -