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11th District rules convicted murderer should be re-sentenced
TRACEY BLAIR
Legal News Reporter
Published: February 4, 2013
An Eastlake man who ran over and killed his ex-girlfriend must be re-sentenced due to a plain error that should have been evident by all parties, the 11th District Court of Appeals has ruled.
The three-judge panel agreed with Todd J. O’Brien’s claim that a trial court should have merged two felony protection counts into two felonious assault counts for sentencing purposes.
O’Brien is serving 45 years to life in prison for the June 15, 2010, death of 23-year-old Kayelee Russell-Martin.
The victim died near her Painesville Township home after O’Brien — who claimed the death was an accident — ran her over with his Chevrolet Malibu.
After an eight-day trial, a Lake County Common Pleas Court jury found O’Brien guilty of murder, aggravated vehicular homicide, four counts of felonious assault, failure to stop after an accident and three counts of violating a protection order.
Case summary details that Russell-Martin and O’Brien had known each other for nine years and had a son together. Their relationship turned hostile in 2006 and O’Brien had a history of stalking her when they were not together.
As a result of calling and texting Russell-Martin constantly, physically abusing her and threatening to kill her on at least one occasion, a civil protection order was issued against O’Brien.
On June 15, 2010, the bad blood between the former couple heated up after Russell-Martin became engaged to another man.
O’Brien, upset about the lack of visitation with his son, failed to abide by the protection order and saw Russell-Martin and her new fiancé at a Mentor gas station. He drove close to his ex-girlfriend’s car, made an obscene gesture and drove off.
Russell-Martin and her fiancé then drove to her aunt’s condominium. While sitting on a boulder outside near a horsehoe-shaped driveway at the entrance, O’Brien accelerated his vehicle and crossed over a lane of traffic.
Sean Doytek, the fiancé, then grabbed pepper spray from Russell-O’Brien’s purse and attempted to shoot it at O’Brien’s driver’s side open window.
O’Brien put his car in reverse, hit the accelerator and struck Russell-Martin. She was dragged under the car, rolled off the trunk and landed on the road. According to several witnesses at the complex, O’Brien drove forward over her body and left the scene.
“In our case, the issue is whether felonious assault and a violation of a protection order are allied offenses of similar import,” 11th District Judge Thomas R. Wright wrote in a unanimous opinion. “… Upon comparing the elements of these two crimes, this court holds that they are allied offenses of similar import because the conduct which results in the commission of a felonious assault would also result in the commission of a violation of a protection order, if such an order is in effect.”
The appellate court agreed with O’Brien that it was plain error for the trial court to impose separate five-year terms for each of the two protection order counts.
“Besides the misdemeanor protection order charge that was based upon the separate traffic light incident in Mentor, appellant was found guilty of two felony protection order charges that were based upon the horseshoe drive incident and the fatal incident, respectively,” Wright stated.
O’Brien alleged eight errors of the trial court judge’s conduct of the trial and sentence.
The appellate court rejected the other arguments, such as O’Brien’s claims he was denied a fair trial because the judge allowed evidence of prior “bad acts” and photos of the victim’s body. They also rejected his theory of ineffective assistance of counsel.
“The record supports the state’s assertion that the vast majority of the evidence concerning appellant’s prior bad acts related to his relationship with the victim and how he reacted violently whenever he thought she was dating another man,” Wright stated in his opinion.
“In applying Evid.R. 404(B), the 12th Appellate District held that when there is a dispute as to whether the harm to the victim was caused accidentally, evidence concerning prior threats and prior acts of violence is admissible to prove that the defendant acted intentionally.”
Fellow 11th District judges Timothy P. Cannon and Mary Jane Trapp concurred with Wright’s opinion.
The case, decided Jan. 7, is cited State v. O’Brien, No. 2011-L-011.