[Cite as State v. Russell, 2021-Ohio-4106.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2020-CA-17 : v. : Trial Court Case No. 2009-CR-873 : CHRISTOPHER M. RUSSELL : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :
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OPINION
Rendered on the 19th day of November, 2021.
IAN RICHARDSON, Atty. Reg. No. 0100124, Assistant Prosecuting Attorney, Clark County Prosecutor’s Office, Appellate Division, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee
CHRISTOPHER M. RUSSELL, #A646-718, 670 Marion Williamsport Road, P.O. Box 1812, Marion, Ohio 43302 Defendant-Appellant, Pro Se
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DONOVAN, J.
{¶ 1} Christopher M. Russell appeals from the trial court’s order denying his pro se
motion for leave to file a motion for new trial. We affirm the judgment of the trial court.
{¶ 2} In 2009, a Clark County grand jury returned a ten-count indictment against
Russell, charging him with five counts of rape, two counts of gross sexual imposition, one
count of pandering obscenity involving a minor, and two counts of sexual battery. The
first eight counts involved conduct that occurred in Scioto County between November 3,
2002, and August 31, 2006; counts nine and ten (the sexual batteries) involved conduct
that occurred in Clark County between September 1, 2006 and July 31, 2009. State v.
Russell, 2d Dist. Clark No. 2011-CA-10, 2012-Ohio-4316, ¶ 12 (“Russell I”) (affirming
Russell’s conviction on all counts and his 75-year sentence). The victim was Russell’s
biological daughter. He was convicted on all counts and sentenced to an aggregate term
of 75 years in prison.
{¶ 3} Russell filed a motion for declaratory judgment in August 2016, seeking a
declaration that prosecutors committed misconduct and requesting that the trial judge
recuse himself. The trial court denied the motion. Russell appealed, and this court
affirmed the trial court’s judgment. State v. Russell, 2017-Ohio-7198, 95 N.E.3d 1142
(2d Dist.) (“Russell II”).
{¶ 4} Russell and his family also filed various motions regarding the return of
personal property that was seized from his home in the course of his arrest. The trial
court concluded that some of the items were identified and admitted as exhibits during
Russell's trial and accordingly were not returnable. When Russell appealed from that
determination, this Court affirmed the judgment of the trial court. State v. Russell, 2018- -3-
Ohio-518, 106 N.E.3d 248, ¶ 1 (2d Dist.) (“Russell III”).
{¶ 5} In his September 30, 2019 motion for leave to file a motion for new trial,
Russell asserted that he sought “leave to file for a new trial pending discovery of evidence
in the possession of the State of an exculpatory nature.” He asserted that his home was
searched on October 5, 2009 pursuant to a warrant, that several items were seized, and
that the items were “inventoried” on Clark County Sherriff’s property receipt 14495.
Russell acknowledged that items of a non-evidentiary nature were eventually returned
but asserted that items 6, 8, 10, and 19 were not returned. Russell stated that he had
filed various motions in the trial court and the court of appeals in an attempt to have the
items returned, noting they “contained potentially exculpatory information,” but the items
had not been returned.
{¶ 6} Russell further asserted that the State was in violation of Brady v. Maryland,
373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), for refusing to produce this
exculpatory material, which was subject to discovery. Specifically, Russell cited the trial
transcripts “at 596:24-597:25,”1 where the court set “a date of last offense as a limit to
the admissibility of evidence”; Russell argued that “information taken from the property
not yet returned was admitted in violation of this order.” He argued that “[d]ata and
forensics from the items still in the court’s possession still contain information relevant to
the guilt of the Defendant.” Russell asserted that the information he requested was not
related to any sexual conduct but was relevant as impeachment evidence.
1 On August 17, 2020, this Court ordered the clerk of the court of appeals to transfer the transcripts of Russell’s trial previously filed in his direct appeal to this appeal. On October 15, 2020, this Court issued an entry that stated that the “clerk has informed this court that those transcripts cannot be located.” We note that there was no hearing on Russell’s motion. -4-
{¶ 7} Russell sought his daughter’s medical records from six health care providers
and “information” from two churches concerning his daughter’s attendance at and
payments for summer camps.
{¶ 8} With respect to item 6, a Kodak EasyShare CW 330 Digital camera, Russell
asserted that no “offensive” images were tied to this device, but images taken by this
camera were shown at trial. According to Russell, the digital images contained meta
data that showed when the images were taken, the images “were fairly recent to the time
of the allegations,” and therefore the images needed to be examined to determine
whether they were admissible due to the time-limit the trial court placed on evidence to
be submitted.
{¶ 9} Item 8 was a Dell Inspiron B-130, and Russell argued that the “data from this
device” may have also been outside the time limits set by the court. “Drive-cleaning
software had been installed, and per the memory of the Defendant, been run to
completely zero the device[’]s hard drive.” Russell argued that all data on the device,
“even data recovered from unallocated space, would be after the date set by the court,”
and that the Ohio Bureau of Criminal Investigation “should be able to identify and verify
the existence and date of the last use of the software.”
{¶ 10} With respect to Item 10, a Mercury Eros Computer, which Russell described
as “a home-built system that had been constructed within six months of the date of the
search,” Russell argued that the construction of the device could be verified by comparing
the part numbers of the components with e-mail data from “newegg.com” on his Yahoo
account to establish that any data retrieved from the computer was “clearly outside the
bounds set by the court.” -5-
{¶ 11} Russell asserted that Item 19, condoms and a lubricant, were purchased
after the date set by the court, which could be verified by “a check of the lot numbers on
these items.”
{¶ 12} With respect to the relevance of his daughter’s medical records, Russell
argued:
It is requested of the court to order the medical records of B.R.
related to concussions and memory loss and either release them to the
Defendant or arrange for appropriate legal and expert assistance. It was
claimed under examination at trial that no diagnosis was given for the
memory loss or hallucinations, therefore the opinions of the examining
physicians are relevant. Further, as the hallucinations were claimed to be
faked, statements in the medical records relevant to showing the Defendant
was under the impression these were real is relevant to support certain
defense claims, including the claim the hallucinations began before any
alleged incident, therefore the fakery would not have been needed to avoid
anything. As the defendant was present for all hospital, pediatric, general
practice, and specialists visits * * * the information contained in these reports
cannot technically be considered privileged.
During the direct and cross examination of B.R., the issues of
hallucinations and memory loss were raised and specific claims related to
the issue made that the Defendant believes were inaccurate (Trial
Transcript page 224, 300-305). As the State did not pass along any
medical records related to these conditions, the defense had no ability to -6-
examine the records or relay information to an expert to assist in creating a
“confabulated memory defense”. This was the strategy the Defendant
believed was best. Defense counsel, without these records, had no ability
to present such a defense.
{¶ 13} Russell asserted that B.R. “claimed to have faked hallucinations” at the time
of the “allegations,” but that he “recalls the hallucinations began many years earlier than
any alleged incidents,” and that he witnessed them. Russell argued that B.R.’s “many
potential head injuries likely began in kindergarten” and that she sustained a concussion
“a few months prior to the allegations” while playing basketball at camp. Russell argued
that “[t]his concussion may have further contributed to confabulated memories.”
{¶ 14} Russell asserted that one of his offenses involved a sex act with B.R. “done
as a deal for B.R. to attend camp,” but when it was revealed that a church had paid for
the camp, questioning stopped. According to Russell, the questioning stopped because
the information disclosed about payment for the camp contradicted the State’s theory that
“the ‘deal’ was to get permission due to a lack of available money.” According to Russell,
B.R. had been permitted to attend camps for many years, so there “would have been no
way to compel” the sex act with that threat. He sought discovery of information about
the summer camps that would show that B.R. was never denied opportunities to attend
due to financial difficulties.
{¶ 15} Russell asserted that, two days before the “allegations” were made against
him, he denied B.R. permission to stay out late with friends after a dance; she
subsequently called her mother at work, who also denied permission. Russell asserted
that this “could have led to the anger that compelled the allegations.” He argued that the -7-
State should obtain statements from individuals that he and/or B.R. claim were present
when B.R. made the request.
{¶ 16} The State opposed Russell’s motion for leave to file a motion for new trial.
The State asserted that Russell’s motion should be denied because he had failed to
present “any documentary evidence, let alone documentary evidence that demonstrates
he was unavoidably prevented from filing his motion on time.” Instead, the State
characterizes Russell’s evidence as “various items that he thinks, if looked into further,
might exonerate him,” but that did not “com[e] close to being new evidence that he could
not, with reasonable diligence, have discovered and produced at trial.” According to the
State, Russell presented no evidence that he was unavoidably prevented from filing his
Crim.R. 33 motion in a timely manner; he simply wanted “a Court-sanctioned fishing
expedition” that would allow him to take a closer look at old evidence.
{¶ 17} In reply to the State’s motion in opposition, Russell noted “issues of plain
error with the original trial” and requested that the court suppress evidence admitted at
trial contrary to law. Russell also asserted that the State’s response was two days late
and should be stricken. Further, he argued that the State’s response focused on newly
discovered evidence, whereas his motion focused on “items accessible or in the
possession of the State at the time of trial,” not newly discovered evidence. Russell
argued that “any delay in the use of the evidence rest[ed] with the State’s failure to
disclose” and that the result of the trial would have been significantly different if this
evidence had disclosed when requested. Russell argued that the data obtained from the
laptop and tower computer constituted the only evidence submitted in support of Counts
1 through 8, which led to 65% of his 75-year sentence; if this evidence had been -8-
inadmissible due to the court’s order, “there is a significant extant injustice.”
{¶ 18} Russell also requested that the State acquire statements from B.R. and her
mother regarding B.R.’s reliance on him to address “certain gynecological issues” she
experienced.
{¶ 19} Russell also asserted that the “filename information presented from the
Tower Computer and Laptop were taken from unallocated space and the browser cache,”
for which no date information was available, and that federal courts “have ruled data of
this nature cannot be shown to construe knowing possession or control of the data.”
{¶ 20} Russell argued that the concept of “child sexual abuse accommodation
syndrome” had no place in the trial, as the expert had not conducted any physical or
psychological examination of anyone involved in the case; he asserts that this evidence
was offered “only * * * to shock the jury and sensationalize the issue.” He argued that
“the entire concepts of nudism and nude photography should be suppressed.”
{¶ 21} Finally, Russell asserted that the law enforcement officer who interviewed
him knew he was experiencing medical distress and promised assistance after the
interview, but such assistance was never given. Russell asserted that he “protested the
idea of rape” in the interview, and the interviewing officer stated “the conversation did not
pertain to rape.” Russell argued that the interview should be suppressed in its entirety.
{¶ 22} In its order overruling Russell’s motion, the trial court determined:
The Defendant has not provided the Court any documentary
evidence showing by clear and convincing proof that he was unavoidably
prevented from discovering new evidence which he could have used at trial.
Instead, the Defendant presents arguments as to facts he was aware -9-
of at the time of his trial and seeks an opportunity to search for new evidence
that may be useful in his defense. None of the evidence which the
Defendant now seeks to discover would be considered new evidence that
could not have, with reasonable diligence, been discovered and produced
at trial.
The Court finds that the Defendant has failed to produce any
evidence that he was unavoidably prevented from filing his motion for a new
trial pursuant to Cr.R. 33 in a timely manner. There is no evidence
presented that would weigh in the Defendant’s favor on his motion for a new
trial.
{¶ 23} Russell appeals from the trial court’s order, raising one assignment of error:
TRIAL COURT ABUSED ITS DISCRETION BY NOT APPLYING
THE PARAMETERS OF “BRADY” TO THE REQUEST FOR DISCOVERY
AND NEW TRIAL.
{¶ 24} Russell asserts that he “has attempted multiple times to secure evidence to
show the inadmissibility of certain items and now comes to compel the discovery of other
information which is favorable to his case. While his past methods had their flaws the
intent was clear: produce the information which is exculpatory and impeaching in nature
which was excluded from trial.” According to Russell, “no limit exists on the time for
which such evidence can be compelled into discovery.”
{¶ 25} Russell asserts that B.R.’s medical records “would demonstrate a pattern
of issues related to memory,” and that if those records had in possession of the defense,
he could have “demonstrated the possibility of * * * Confabulated Memories, an issue not -10-
uncommon with individuals who have suffered repeated head injuries * * *.” He also
argues that the “blatant and profuse emotionalization of the jury by the State,” along with
“cajoled statements” by the police and the “withholding of evidence (intentional or not)”
prevented a fair trial.
{¶ 26} Russell argues that, once he was arrested on October 9, 2009, certain
evidence was outside of his control and in the custody of the Bureau of Criminal
Investigation. He also argues that the complaining witness’s medical records would
have been obtained by the State, which “initiated the discussion of medical issues,” and
therefore it was the State’s responsibility “to provide the means of cross-examination of
the testimony.”
{¶ 27} Russell argues that the trial court has ignored his past efforts to obtain the
property still held by the State for an independent examination and to show its
inadmissibility.
{¶ 28} Russell repeats the arguments made in his motion. He asserts that the
State engaged in prosecutorial misconduct, that his pretrial statements to law
enforcement were coerced, and that the “State’s tactics of emotionalizing the jury, the
police detective’s desire to obtain a confession at all costs, and the withholding of
information vital to an effective defense” unfairly compromised his right to a fair trial.
{¶ 29} As this Court has noted:
Generally, “[a] reviewing court will not disturb a trial court's decision
granting or denying a Crim.R. 33 motion for new trial absent an abuse of
discretion.” (Citation omitted.) State v. LaMar, 95 Ohio St.3d 181, 2002-
Ohio-2128, 767 N.E.2d 166, ¶ 82. However, the Supreme Court of Ohio -11-
has indicated that a trial court's ruling on a motion for new trial claiming a
Brady violation should be reviewed using “a due process analysis rather
than an abuse of discretion test because the issue on review concern[s] [the
defendant's] due process right to a fair trial, namely the suppression by the
prosecution of evidence favorable to [the defendant].” State v. Johnston,
39 Ohio St.3d 48, 60, 529 N.E.2d 898 (1988). Accord State v. Oldaker, 4th
Dist. Meigs No. 16CA3, 2017-Ohio-1201, ¶ 19; State v. Webb, 12th Dist.
Clermont No. CA2014-01-013, 2014-Ohio-2894, ¶ 16; State v. Keith, 192
Ohio App.3d 231, 2011-Ohio-407, 948 N.E.2d 976, ¶ 41 (3d Dist.); State v.
Hoffman, 11th Dist. Lake No. 2001-L-022, 2002-Ohio-6576, ¶ 19.
Based on this precedent, we review de novo a trial court's ruling on
a motion for new trial alleging a Brady violation, as the relevant inquiry is
whether due process was violated by the prosecutor's failure to disclose
evidence. State v. Moore, 3d Dist. Union No. 14-08-43, 2009-Ohio-2106,
¶ 19; State v. Glover, 2016-Ohio-2833, 64 N.E.3d 442, ¶ 35 (8th Dist.);
United States v. Bullock, 130 Fed.Appx. 706, 722 (6th Cir.2005), citing
United States v. Phillip, 948 F.2d 241, 250 (6th Cir.1991) (“[t]he standard of
review for the materiality of a purported Brady violation is de novo because
it presents a mixed question of law and fact”).
***
Pursuant to the United States Supreme Court's decision in Brady,
“the suppression by the prosecution of evidence favorable to an accused
upon request violates due process where the evidence is material either to -12-
guilt or to punishment, irrespective of the good faith or bad faith of the
prosecution.” Brady, 373 U.S. at 87, 83 S.Ct. 1194, 10 L.Ed.2d 215.
Therefore, in order to establish a due process violation under Brady, the
defendant must demonstrate that: “(1) the prosecution failed to disclose
evidence upon request; (2) the evidence was favorable to the defendant;
and (3) the evidence was material.” State v. Goney, 2d Dist. Greene No.
2017-CA-43, 2018-Ohio-2115, ¶ 66; Moore v. Illinois, 408 U.S. 786, 794-
795, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972).
Because exculpatory and impeachment evidence are favorable to
the defendant, both types of evidence may be the subject of a Brady
violation, so long as the evidence is material. United States v. Bagley, 473
U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). “Evidence is
considered material ‘if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would
have been different.’ ” State v. Royster, 2d Dist. Montgomery No. 26378,
2015-Ohio-625, ¶ 16, quoting Bagley at 682. A “reasonable probability” is
“a probability sufficient to undermine confidence in the outcome.” Bagley
at 682.
“As a rule, undisclosed evidence is not material simply because it
may have helped the defendant to prepare for trial.” State v. Brown, 115
Ohio St.3d 55, 2007-Ohio-4837, 873 N.E.2d 858, ¶ 49. “The United States
Supreme Court has rejected a standard of materiality that focuses ‘on the
impact of the undisclosed evidence on the defendant's ability to prepare for -13-
trial, rather than the materiality of the evidence to the issue of guilt or
innocence.’ ” Id., quoting United States v. Agurs, 427 U.S. 97, 112-113, 96
S.Ct. 2392, 49 L.Ed.2d 342 (1976), fn. 20.
Furthermore, no Brady violation occurs when the undisclosed
evidence is cumulative to evidence already known by the defense at the
time of trial. See State v. Cook, 1st Dist. Hamilton No. C-950090, 1995 WL
763671, *3 (Dec. 29, 1995). There is also no Brady violation “if the
evidence that was allegedly withheld is merely cumulative to evidence
presented at trial.” (Citations omitted.) State v. Bonilla, 2d Dist. Greene
No. 2008 CA 68, 2009-Ohio-4784, ¶ 26.
State v. Smith, 2d Dist. Montgomery No. 27853, 2018-Ohio-4691, ¶ 24-29.
{¶ 30} This Court’s decision affirming Russell’s conviction reflects that there was
overwhelming evidence of his guilt at trial. He confessed to law enforcement, he
discussed the ongoing abuse with the victim in a call recorded by law enforcement, and
while in jail, he placed calls to his mother and his wife in the course of which he confessed
to the allegations that his daughter made against him. Russell I, 2d Dist. Clark No. 2011-
CA-10, 2012-Ohio-4316, at ¶ 9-11.
{¶ 31} Further, Russell provided no evidence that the State suppressed material
evidence favorable to him. We discussed the removal of items from Russell’s home in
Russell III, 2018-Ohio-518, 106 N.E.3d 248, as follows:
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 -14-
tower was admitted as State's Exhibit 22; and the Kodak camera was
admitted as 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.
Id. at ¶ 29.
{¶ 32} Regarding B.R.’s medical records, Russell lists multiple health care
providers where the “information is available,” but the records are not asserted to be in
the State’s possession. Further, any evidence in the records regarding past concussions
suffered by B.R. was known to Russell before trial, as he asserted he attended all of her
appointments but one. We cannot conclude that the information in the medical records
was material simply because it may have helped Russell explore a “confabulated memory
defense” for trial. The same is true of the church records, since Russell “requests
information from” the churches themselves, and he does not assert the information is in
the State’s possession. He further failed to establish the materiality of the church
records. -15-
{¶ 33} Regarding Russell’s request that the State obtain statements from certain
individuals present with B.R. after a dance, Russell cannot establish that the State
withheld exculpatory evidence based on statements that apparently were never obtained,
nor can he establish their materiality. Russell was clearly aware of these witnesses at
the time of trial, since he asserts that he observed them in his home. Russell provided
no evidence that a reasonable probability exists that the result of Russell’s trial would
have been different if Russell had had access to the medical and church records or to the
statements of these particular witnesses.
{¶ 34} Finally, we note that a couple of Russell’s arguments which were initially,
and therefore improperly, raised in his reply memorandum have already been addressed
by this Court. In his direct appeal, we found that Russell’s confession was not a product
of coercion by law enforcement. Russell I, 2d Dist. Clark No. 2011-CA-10, 2012-Ohio-
4316, at ¶ 17. In affirming the decision of the trial court on Russell’s motion for
declaratory judgment, we determined that Russell's “claims of prosecutorial misconduct
are the proper subject of a direct appeal (and barred by res judicata), and that his motion
for declaratory judgment is accordingly not within the spirit of R.C. 2721.03.” Russell II,
2d Dist. Clark No. 2011-CA-10, 2012-Ohio-4316, at ¶ 17.
{¶ 35} Since Russell failed to establish that the State failed to disclose material
evidence upon his request that was favorable to him, his assignment of error is overruled.
{¶ 36} The judgment of the trial court is affirmed.
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TUCKER, P. J. and WELBAUM, J., concur. -16-
Copies sent to:
Ian Richardson Christopher M. Russell Hon. Richard J. O’Neill