State v. Fuell
| Decision Date | 10 May 2021 |
| Docket Number | NO. CA2020-02-008,CA2020-02-008 |
| Citation | 172 N.E.3d 1065 |
| Court | Ohio Court of Appeals |
| Parties | STATE of Ohio, Appellee, v. Austin M. FUELL, Appellant. |
Mark J. Tekulve, Clermont County Prosecuting Attorney, Nick Horton, 76 South Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for appellee.
Timothy B. Hackett, Assistant State Public Defender, 250 East Broad Street, Suite 1400, Columbus, Ohio 43215, for appellant.
{¶1} Austin Fuell appeals from the Clermont County Common Pleas Court. The juvenile division transferred Fuell to the adult division to face murder charges after conducting a mandatory transfer hearing, also known as a bindover hearing. After Fuell pleaded guilty to murder, the adult division imposed a mandatory sentence of life in prison with the possibility of parole after 15 years. Fuell appeals his transfer to adult court and his sentence. For the reasons discussed below, we affirm.
{¶2} Police filed a complaint in the Clermont County Court of Common Pleas, Juvenile Division, alleging that Fuell – then seventeen years old – was a delinquent child for having committed acts that if committed by an adult would have constituted murder, aggravated robbery, and aggravated burglary. The complaint alleged that Fuell and an accomplice were suspects in a home invasion and robbery that occurred on June 11, 2019. During the robbery, one of the suspects shot and killed Jordan Ketring, who was staying at the home.
{¶3} The state moved for Fuell's mandatory transfer to the adult division of the common pleas court for criminal prosecution. To determine whether transfer was mandatory, on July 29 and October 4, 2019, the juvenile court held a probable cause hearing pursuant to R.C. 2152.12(A) and Rule 30 of the Ohio Rules of Juvenile Procedure. The state presented the testimony of several witnesses. We have summarized those witnesses’ testimony below.
{¶4} Payge Lacey was Ketring's girlfriend. During the relevant time period, the two lived at Lacey's grandparents’ home located at 822 Wards Corner Road in Clermont County.
{¶5} Lacey and Ketring met Fuell on three occasions over several days leading up to Ketring's death on June 11. These encounters were all drug exchanges – that is, Ketring sold Xanax to Fuell during each meeting, with the exception of the last meeting. The first encounter was at Lacey's grandparents’ home. The second was near a car dealership. The third encounter was on June 8, 2019. The parties met at a Planet Fitness location on Fields-Ertel Road in Warren County. However, once all the parties arrived at Planet Fitness, the meetup was moved to a nearby Comfort Inn. In the parking lot of the Comfort Inn, Ketring and Fuell got into a physical altercation and Ketring robbed Fuell of $375. Ketring retreated to his vehicle and he, Lacey, and another individual who was with them fled the scene. Fuell fired gunshots in their direction as they were leaving.
{¶6} Three days later, in the early morning hours of June 11, 2019, Lacey was with Ketring at her grandparents’ home. They were settling down to sleep when two people wearing all black clothing and masks came into the home. The intruders told Lacey and Ketring to get down on the ground. The intruders had guns and demanded to know the location of a safe.
{¶7} Though the intruders were wearing masks, Lacey could see the intruders’ eyes. She believed that one of the intruders was Fuell, as she recognized his eyes, which she described as "further back" or "indented" in his skull. She also recognized this intruder's voice as Fuell's voice. Lacey said that the other intruder walked off and came back later with a safe. Then, the person she believed was Fuell said to Ketring, "Where is my $375?" Lacey testified that when she heard this comment, she became 99.9% certain the intruder was Fuell because $375 was the exact amount that Ketring had stolen from Fuell at the Comfort Inn a few days before.
{¶8} Ketring, who was armed with a revolver, began arguing with Fuell and asking whether $375 was worth his life or the risk of going to prison for life. At some point, shooting began between Ketring and the intruders. Ketring was shot and fell over. The two intruders fled.
{¶9} Dan Tobias, a detective with the Miami Township Police Department, testified that he investigated the shooting. Ketring, who had been shot in the torso, died from his injuries. Detective Tobias quickly developed Fuell as a suspect based on interviews with various witnesses. He was also able to corroborate Lacey's claims concerning the June 8 robbery through surveillance videos depicting vehicles and people at Planet Fitness and Comfort Inn.
{¶10} Detective Tobias identified Fuell's cell phone number by speaking with multiple witnesses who provided him the number. He also located a receipt in a vehicle associated with an acquaintance of Fuell. Fuell's name and phone number had been written on the receipt.
{¶11} Detective Tobias testified concerning an exhibit entitled "Cell Tower Analysis." This document had been produced by an analyst at the Bureau of Criminal Investigation (BCI) based on cell phone location data records that Detective Tobias had obtained from Sprint. The exhibit contained a map which depicted the cell phone towers being used by the cell phone associated with Fuell's phone number between the hours of 12:00 a.m. and 5:00 a.m. on June 11, 2019. The map showed the phone being located on the west side of Cincinnati, where Fuell lived, at approximately 2:00 a.m. The phone then tracked towers heading east and ending in the vicinity of 822 Wards Corner Road near or around the time of the home invasion at 3:15 a.m. Afterwards, the phone location appeared to move back to the west side of Cincinnati and pinged the original tower on the west side of Cincinnati at 4:10 a.m.
{¶12} As part of his investigation, Detective Tobias interviewed Kevin Baird, a mutual friend of Lacey and Fuell. Detective Tobias’ contact with Baird produced another exhibit he discussed during his testimony, which consisted of multiple photographs that Detective Tobias took of the screen of Baird's cell phone. These photographs depicted a series of text messages and missed calls between Baird and a contact on Baird's phone who appeared to be Fuell. That is, Fuell's photograph was depicted alongside the text messages as the sender, and the contact name in the phone was listed as "Austin." Detective Tobias’ photos of the text messages are referred to herein as the "Text Message Photographs."
{¶13} The screen photographs showed the person assumed to be Fuell asking Baird for Lacey's address at approximately 12:30 a.m. on June 11, 2019, less than three hours before the home invasion. The screen photos further show that, shortly thereafter, Baird responded with the address of 818 Wards Corner Road, which was the residence directly behind 822 Wards Corner Road.1
{¶14} Detective Tobias testified that after Fuell became a potential suspect, police began surveilling his residence, which was Fuell's grandmother's home. During that time, Fuell and his grandmother left the residence in a vehicle. Police pulled the vehicle over and, after a consensual search, recovered a gun barrel in the glove box. Later that day, detectives executed a search warrant at Fuell's residence and recovered an intact Sky Industries 9mm Luger pistol. Both the recovered gun barrel and the pistol were sent to BCI for comparison testing against cartridges and a bullet recovered from the scene of the home invasion, and a bullet recovered from Ketring's body.
{¶15} Matthew White, a BCI forensic firearms examiner, testified that he had approximately 20 years of experience as a forensic firearm and tool mark examiner and was a member of the Association of Firearm and Tool Mark Examiners. The court recognized White, without objection, as an expert witness in the field of ballistics.
{¶16} White testified that he had examined the recovered bullets and cartridges as well as the submitted gun barrel and pistol. White testified that microscopic comparison testing of the submitted items revealed that the gun barrel recovered from the glove box matched the recovered bullets, including the bullet that killed Ketring. White further noted that the glove box gun barrel was chambered in a 9mm Luger and was a compatible barrel with the Sky Industries pistol recovered from Fuell's residence. However, the gun barrel inside the 9mm Luger pistol recovered from Fuell's home was not a match to the bullets recovered by police.
{¶17} Bruce Redd testified that he was the manager of the American Trading Company, a store that sells firearms on the west side of Cincinnati. On June 11, 2019, Fuell and his grandmother entered the store. Fuell's grandmother told Redd that she wanted a firearm for security purposes. Redd suggested she consider a shotgun. Instead, although there were approximately 100 firearms from which to choose, Fuell's grandmother specifically pointed at a Sky Industries 9mm in the gun case and said, "that's the one I want." The federal firearms transfer paperwork indicated that Fuell's grandmother purchased the pistol at 4:26 p.m. on June 11, 2019.
{¶18} In October 2019, the juvenile court issued a judgment entry finding that Fuell was 17 years old at the time of the alleged offenses and finding probable cause to conclude that Fuell committed the alleged offenses. Accordingly, the juvenile court ordered that Fuell be transferred to the adult division of the common pleas court pursuant to R.C. 2152.12(A) for further criminal proceedings.
{¶19} After Fuell's transfer to adult court – that is, the Clermont County Court of Common Pleas, General Division – a grand jury indicted Fuell on one count of aggravated...
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