State of Ohio, Plaintiff-Appellee, v. Gregory Huish, Defendant-Appellant.
No. 21AP-255 (C.P.C. No. 19CR-4125)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
Rendered on February 8, 2023
2023-Ohio-365
MENTEL, J.
(REGULAR CALENDAR)
On brief: April F. Campbell, Campbell Law, LLC, for appellant.1
On brief: G. Gary Tyack, Prosecuting Attorney, and Paula M. Sawyers, for appellee. Argued: Seth L. Gilbert.
APPEAL from the Franklin County Court of Common Pleas
MENTEL, J.
{¶ 1} Defendant-appellant, Gregory Huish, appeals from a judgment of conviction and sentence entered by the Franklin County Court of Common Pleas, pursuant to a jury verdict, finding him guilty of two counts of murder and one count of tampering with evidence.
{¶ 2} For the reasons that follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 3} On August 21, 2019, appellant was indicted on two counts of murder in violation of
{¶ 4} In the summer of 2019, Daniel James Atchley resided at 380 Stoddart Avenue in the Old Town East neighborhood of Columbus, Ohio. (Tr. Vol. II at 40, 42.) Atchley testified that during this time, appellant was his neighbor and lived in the nearby property at 382 Stoddart Avenue. (Tr. at 42-43.) Atchley identified appellant in the courtroom. (Tr. at 43-44.) Appellant had initially lived in the building with a female roommate that had small dogs and another male roommate. A fourth roommate, Ce‘Marlo Fletcher, later moved into the residence. (Tr. at 43.) Atchley stated his relationship with Fletcher consisted mainly of waving and saying hello. (Tr. at 45-46.) Atchley testified that his house was about 10 to 20 feet from the 382 Stoddart Avenue property. (Tr. at 46-47.)
{¶ 5} On August 12, 2019, Atchley returned from work around 5:00 p.m. At approximately 9:30 p.m., Atchley was reading a book on his porch when he “started hearing events going on next door, I heard raised voices.” (Tr. at 50.) Atchley testified that he heard two male voices yelling at each other for approximately 15-20 minutes. (Tr. at 51.) “The only phrase that I could make out was, ‘$400.’ ” (Tr. at 51.) According to Atchley, Fletcher then came outside on his cell phone. Before returning inside, Atchley overheard Fletcher state that his PlayStation 4 had been stolen. (Tr. at 52.) Huish then came outside and told Atchley that Fletcher believed Huish stole his PlayStation 4. Huish denied having anything to do with it. (Tr. at 53.) After approximately five minutes, Fletcher came outside demanding his rent. “I distinctly remember [Fletcher] saying that he wanted his rent money back for the month of August, he said he wanted his rent money back and he was moving out.” (Tr. at 54.) Before Huish went back inside his residence, Atchley cautioned Huish to be careful. (Tr. at 54.) Atchley testified Huish went inside at approximately 10:00 p.m. (Tr. at 56.) Later in the evening, Atchley heard someone yell “help me” as they were running up the alleyway. (Tr. at 56.) Atchley then told his roommate to call 911. According to Atchley, he saw a “pool of blood on my front porch * * * and I saw Ce‘Marlo out moving toward the street, and he stumbled and was falling in the tree lawn * * * near a parked car and out in our front lawn.” (Tr. at 59.) Atchley turned “Ce‘Marlo on to his back and I knew that there was blood on my porch and could see that he was bleeding.” (Tr. at 59.) Atchley observed a
{¶ 6} On cross-examination, Atchley testified that when he spoke to Huish, he did not seem angry but more off-guard at being accused of stealing the PlayStation 4. (Tr. at 71.) Atchley stated, after speaking with Huish and hearing the yelling, he was worried that there would be a fight. (Tr. at 73.) Atchley acknowledged that he did not see the incident and did not know what happened inside the residence. (Tr. at 73.)
{¶ 7} Officer Amanda Hill testified that she has been a patrol officer for the Columbus Division of Police for nearly ten years. (Tr. at 81-82.) On August 12, 2019, Hill responded to a call around 10:30 p.m. that was believed to be a shooting at Stoddart Avenue. (Tr. at 84.) Hill and her partner arrived at the scene and identified the victim laying on the ground. (Tr. at 84.) Hill attempted first aid, but the victim was unresponsive. (Tr. at 86.) Hill testified that the victim had injuries “[t]o his torso, initially we believed it would be gunshots, but, I -- I couldn‘t tell you exactly where they were in his torso.” (Tr. at 87.) After the medics arrived, Hill went to the victim‘s residence and saw blood along the door frame. (Tr. at 88.) Hill testified that she went inside the home and observed more blood that was “[b]asically everywhere. Walking in was like a front room and then towards the back, just the whole way through, you saw blood.” (Tr. at 88-89.) Hill then assisted in securing the scene. (Tr. at 89.) On cross-examination, Hill testified that she attempted to speak with the victim, but he was unresponsive. (Tr. at 95-96.)
{¶ 8} Officer Carl Harmon testified that he has been employed by the Columbus Division of Police as a police officer for seven years. (Tr. at 99-100.) On August 12, 2019, Harmon was dispatched to Stoddart Avenue for what was believed at that time to be a shooting. (Tr. at 104.) Harmon testified that he arrived at the scene where other officers were rendering aid to the victim. (Tr. at 108.) Harmon and Officer Sean Mottinger entered the residence believing there was an armed suspect. (Tr. at 109-10.) Harmon described the residence as a duplex, and he testified that they proceeded to search the left side of the building. (Tr. at 110.) According to Harmon, the officers followed a trail of blood leading up the stairs. (Tr. at 110.) Harmon cleared the house but did not find anyone inside. (Tr. at 110-
The search was pretty quick because, like I said, it was vacant, there‘s not a lot that we have to search through. I made my way to the attic. The way that the attic was situated, it was a mirror of the other place, and so I knew that the closet, if you will, doors were lower, about waste height. So when I get to the attic I turned right and I could tell there was one of those closet doors and I moved back the piece of wood that was, I guess, acting as the door, and I saw the suspect or who I thought to be the suspect at the time hiding in there.
(Tr. at 116.)
{¶ 9} According to Harmon, he then ordered the suspect out of the closet. (Tr. at 118.) Harmon observed that the suspect had blood on his shirt. Harmon did not notice any injuries on appellant at that time. (Tr. at 120-21.) Harmon testified that he ordered the suspect out, to turn around, and put his hands up. (Tr. at 119.) Harmon told the suspect that if he moved “I‘ll fucking kill you,” which the suspect replied, “[g]o ahead and do it.” (Tr. at 120.) According to Harmon, the suspect then turned towards him, which forced him to tackle the suspect into a mini fridge. (Tr. at 121.) Harmon brought the suspect to the ground and placed him in handcuffs. (Tr. at 122.) Harmon asked the suspect “why did you do that” in reference to advancing on him during the arrest. (Tr. at 122.) Huish stated, ” ‘[i]t was an accident’ or ‘[h]e attacked me.’ ” (Tr. at 123.) Harmon identified Huish in the courtroom as the suspect he placed under arrest at the scene. (Tr. at 124.)
{¶ 10} On cross-examination, Harmon stated that upon entering the residence his biggest concern was the safety of everybody involved and searched the duplex for an additional victim or the suspect. (Tr. at 139.) Harmon acknowledged that, despite all of the
{¶ 11} Officer Sean Mottinger testified that he has been employed with the Columbus Division of Police for six years. On August 12, 2019, Mottinger was on “a walkie crew assignment, so that typically means I‘m on a bicycle here and there, so I had a different uniform on that day, I believe. * * * The tone drop was I believe a shooting that came in on Stoddart and I jumped into a cruiser with Officer Harmon, the officer that testified earlier.” (Tr. at 160.) Upon arriving at the scene, Mottinger followed the blood trail up to the residence. (Tr. at 163.) Mottinger described the inside of the residence as having a significant amount of blood on the walls. (Tr. at 163.) Mottinger testified that he followed Harmon as he knocked down the door and searched the first half of the double unit. Mottinger described using a “Halligan tool” to pry open the attic door. (Tr. at 163-64.) Mottinger stated that they did not find anyone in the first residence. Mottinger and the other officers concluded that the other side of the duplex needed to be searched due to the shared attic space. (Tr. at 165.) Mottinger testified that the door to the other unit of the duplex was open, and the officers proceeded to search the other unit level by level. (Tr. at 165-66.) The officers searched the house until they reached the attic where he heard Harmon yelling commands. Mottinger went up to the attic and observed the suspect. (Tr. at 166.) Mottinger identified Huish in the courtroom as the suspect that was arrested that evening. (Tr. at 167.) At the time of the arrest, Mottinger did not observe any injuries on the suspect. (Tr. at 167.) Mottinger testified that Huish looked impaired during the arrest. (Tr. at 168.) Mottinger concluded the search and observed two bottles of liquor in the attic. (Tr. at 172.)
{¶ 13} Dr. Kevin Jenkins testified that he is employed at the Franklin County Forensic Science Center as the Chief Deputy Coroner. (Tr. at 183-84.) Jenkins is a forensic pathologist and licensed to practice medicine in the state of Ohio. Jenkins manages other pathologists in the department as well as performs autopsies. (Tr. at 185.) Jenkins testified as to his educational background and experience in performing autopsies. The state then moved to qualify Jenkins as an expert in the field of forensic pathology. Without objection from the defense, the trial court deemed Jenkins an expert in the field. (Tr. at 188-89.)
{¶ 14} Jenkins performed an autopsy of the decedent, Ce‘Marlo Fletcher, on August 13, 2019. (Tr. at 192.) Jenkins prepared a report as to the results of the autopsy. (Tr. at 193.) Jenkins testified as to Fletcher‘s injuries stating “[o]n the external examination there was an injury on the left upper chest consistent with a stab wound. And there was medical intervention to include sutures across the chest, and the -- some scattered abrasions, bruises, scrapes on knees.” (Tr. at 196.) Jenkins testified the wound was 2.4 centimeters wide, approximately four inches deep, and oriented horizontally on the chest. (Tr. at 197, 200.) Jenkins explained that because the knife did not hit any bone or cartilage there is no way to determine how much force was asserted to inflict the stab wound. (Tr. at 200.) Jenkins stated that were also abrasions on the decedent‘s “left cheek and right elbow, right eyebrow, left forearm, left wrist, left hip and left knee.” (Tr. at 201.) According to Jenkins, these abrasions were all recent. (Tr. at 202.) Jenkins concluded, based on a reasonable degree of medical certainty, that the decedent‘s cause of death was a stab wound to the chest and the manner of death was a homicide. (Tr. at 214.)
{¶ 15} On cross-examination, Jenkins acknowledged that there was no way for him to determine how those abrasions occurred. (Tr. at 217.) Jenkins also conceded that he could not say what Fletcher was doing at the time that these wounds were inflicted. (Tr. at 219.) Jenkins noted that “homicide” was defined as death caused by the actions of someone else, and his designation has no bearing on whether the other person was justified in those actions. (Tr. at 222-23.)
{¶ 17} On August 12, 2019, Jury had worked an evening shift at BP between the hours of 10:00 p.m. to 6:00 a.m. (Tr. at 259.) That morning, Jury returned home from work, socialized with her boyfriend, Armon Jones, at her residence and went to sleep around 10:30 a.m. (Tr. at 260-61.) Jury woke up in the evening and caught the bus to work around 9:00 p.m. (Tr. at 263.) Jury testified that Huish was the only one home when she left for work. (Tr. at 264.) According to Jury, Fletcher called her around 9:30 p.m. about his missing PlayStation 4. After some discussion with Fletcher, they determined that Jones had taken the PlayStation 4. (Tr. at 266.) Jury ultimately offered to pay for the stolen PlayStation 4. (Tr. at 267.) That evening, Jury received a notification on her phone of a shooting on Stoddart Avenue. (Tr. at 267.) The detectives later interviewed her at work. (Tr. at 268.) Jury stated that she spoke to the detectives a second time about the events of the day and provided information about the stolen PlayStation 4. Jury testified that while Fletcher was taller than Huish, Huish was noticeably heavier than Fletcher. (Tr at 269-70.)
{¶ 18} On cross-examination, Jury acknowledged that Fletcher yelled during their telephone conversation. (Tr. at 274.) Jury testified that she had never heard Fletcher that upset. Jury conceded that she did not know what happened after she got off the phone with Fletcher. (Tr. at 277.) According to Jury, Fletcher told her that he was going to ask Huish
{¶ 19} Detective Richard Bair testified that he has been employed with the Columbus Division of Police since 1995. (Tr. Vol. III at 11-12.) Bair has been a detective with the Crime Scene Search Unit since July 2008. (Tr. at 11.) Bair described the Crime Scene Search Unit as the “third responders” and stated, “we meet up with the detectives that called us out there. They will do a walk-through of the scene with us. * * * They will go over what they want at the scene so we‘re basically working under the direction of the detective.” (Tr. at 15-16.) Bair described taking photographs and fingerprints, collecting evidence, making sketches, and taking DNA samples at the Stoddart Avenue property. (Tr. at 18.) “[W]e w[a]nt to capture the scene so we want to be able to show this is what it looked like when we got in.” (Tr. at 18.)
{¶ 20} On August 12, 2019, Bair arrived at 382 Stoddart Avenue at approximately 1:56 a.m. (Tr. at 23.) According to Bair, he walked through the crime scene with Detective Titus on what items they wanted collected and marked evidence for photographs. (Tr. at 23.) Bair testified to a series of photographs that were taken at the scene. (Tr. at 27.) Bair stated that he took the photographs, and another detective collected the physical evidence. According to Bair, he was present during the entire collection process. (Tr. at 49.) Bair also testified to the swabs taken from the knife recovered at the scene. (Tr. at 54.) Bair testified to the various samples as well as the liquor bottle collected in the attic of 384 Stoddart Avenue. (Tr. at 53.) According to Bair, all the exhibits that he reviewed appeared to be in substantially the same condition as when they were collected at the scene. (Tr. at 56.) Bair acknowledged that he was not involved in analyzing the DNA samples. (Tr. at 56.)
{¶ 21} On cross-examination, Bair conceded that he did not know how the blood ended up on the wall or floor. (Tr. at 60.) Bair testified, “it looks like someone was wounded and they bled a lot in a lot of different places.” (Tr. at 60.) After a review of a photograph, Bair stated the liquor bottle, when it was recovered, appeared “fairly full.” (Tr. at 64.)
{¶ 22} Benjamin Gibson testified that he moved into the Stoddart Avenue residence in 2016. (Tr. at 71.) Gibson heard about the vacancy from Jury when they worked together at the BP on Stringtown Road. (Tr. at 72.) Gibson moved into the second-floor room at the
{¶ 23} On August 12, 2019, Gibson was working as a dishwasher and prep cook at the Franklin Park Conservatory. (Tr. at 83.) After work, Gibson returned to his residence at 62 Dunkin Street. At around 7:30 p.m., Gibson went to the Stoddart Avenue property to pay his rent and return a video game to Fletcher. (Tr. at 86.) According to Gibson, he went to Fletcher‘s room to return the video game and noticed that the PlayStation 4 was missing. Gibson then spoke to Huish about the PlayStation 4, but Huish said he did not know anything about it. (Tr. at 90.) Gibson recalled Huish was drinking a Bloody Mary that night. (Tr. at 90.) Gibson helped program Huish‘s phone and chatted with him for approximately 10-20 minutes. (Tr. at 91.) According to Gibson, he left the residence around 8:30 p.m. (Tr. at 91.) Gibson stated that he later received a call from Fletcher around 9:10 p.m. (Tr. at 92-93.) Gibson testified that Fletcher was pretty upset about the missing PlayStation 4. That was the last time Gibson spoke to Fletcher. According to Gibson, he received a call from Jury the next morning, and she told him what had happened. (Tr. at 95.)
{¶ 24} On cross-examination, Gibson stated Fletcher had a temper and was upset during their telephone call on August 12, 2019. (Tr. at 101.) According to Gibson, Huish was not upset or angry when he left the duplex. (Tr. at 102.) Gibson acknowledged that he did not know what happened in the house the night of the incident. (Tr. at 102-03.) On redirect examination, Gibson recalled that the door on Fletcher‘s room would not lock. (Tr. at 104.) “[H]is door didn‘t even have hinges on it.” (Tr. at 104.) Gibson also testified he had never seen Fletcher become violent. (Tr. at 105.)2
{¶ 26} On cross-examination, Olson explained the inherent difficulties in theorizing why DNA was left in some place but not others. “It‘s just really hard because as I mentioned before trace DNA doesn‘t act the same way every single time. A different fabric of shirt may be better than another fabric. The whole circumstance, it‘s winter maybe someone‘s skin is a little more dry than in the summertime. So there‘s so many factors that we are not aware of without actually being at the scene that can play a part at leaving DNA behind.” (Tr. at 137-38.) Olson acknowledged that without being at the scene during the incident, she could not know what happened. (Tr. at 139.)
{¶ 27} Detective Brent Close testified that he has been employed by the Columbus Division of Police for approximately 23 years and a homicide detective for nearly two and one half years. (Tr. at 144-45.) On the evening of August 12, 2019, Close was notified around 11:00 p.m. about a potential homicide at 382 Stoddart Avenue. (Tr. at 157-58.) Law enforcement obtained a search warrant for both the 382 and 384 Stoddart Avenue properties. (Tr. at 164-65.) Close described the scene as follows: “[t]here was obvious blood inside the house, quite a bit of blood inside the living room of 382. It -- it actually showed a path from the living room to the back door of the duplex out to the * * * back door and along
{¶ 28} Close testified to conducting an interview at CPD headquarters with Huish about the incident. (Tr. at 167.) According to Close, Huish stated that Fletcher came home from work and accused him of stealing his PlayStation 4. “He said that Mr. Fletcher was very angry, yelling and screaming.” (Tr. at 167.) Huish left the residence and spoke to his neighbor that was outside on his porch. Huish then went back inside the house and started to cook in the kitchen. (Tr. at 167.) Fletcher again confronted Huish and pushed him multiple times. According to Close, Huish stated that he then grabbed a butcher knife from the kitchen and “chased Mr. Fletcher to the front door. Once [in the living room near the front door], * * * [Huish] was telling Mr. Fletcher to get away from him and to get out of his house.” (Tr. at 168.) Close testified that Huish recalled “Mr. Fletcher pushed Mr. Huish again and/or that was when he struck him. And then during that altercation in the living room Mr. Huish stated that he stabbed Mr. Fletcher with a knife.” (Tr. at 168-69.) Huish admitted that he did not see a weapon on Fletcher during the incident. (Tr. at 169.) Close stated that there were no injuries to Huish‘s knuckles. (Tr. at 181.) Close testified the Huish consented to have his DNA collected. (Tr. at 172.) The state then played the recorded interview between Close and Huish for the jury. (Tr. at 178.)
{¶ 29} Close testified that he went to the BP station to interview Jury who was able to provide Fletcher‘s Facebook information. Fletcher was later identified through fingerprints. (Tr. at 171.) There was also a surveillance video from a neighboring house but the quality was described as “very poor.” (Tr. at 173.)
{¶ 30} On cross-examination, Close conceded the Huish was cooperative during the interview. While Huish admitted to having a couple drinks that evening, Close acknowledged that Huish did not appear intoxicated during the interview. (Tr. at 194.) Close also testified that he was informed by the other officers that Huish said, “[h]e attacked me” during the arrest. (Tr. at 196.) Close conceded that he did not ask Huish if he was fearful for his life or if Huish felt like he had no other choice but to use the knife. (Tr. at 200-01.) When Close asked why Huish hid in the attic, Huish responded, “[y]eah, I don‘t have a good reason for why I did what I did. I just F‘d up and ran and hid.” (Tr. at 210.) Close acknowledged that everyone reacts differently to stressful situations. (Tr. at 210.)
{¶ 32} The state rested its case and moved to admit its exhibits. Counsel for appellant then moved to dismiss the indictment under
{¶ 33} Prior to appellant‘s testimony, the parties convened regarding the proposed jury instructions. (Tr. Vol. IV. at 5.) Relevant to the instant appeal, the trial court denied appellant‘s request for an unanimity jury instruction on self-defense. (Tr. at 10.) The trial court concluded that self-defense calls for an alternative means instruction citing State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787 as illustrative on this issue. (Tr. at 9.) The trial court stated: “The jury finding different reasons as to why they think the state did or did not disprove self defense does not reflect a disagreement of the facts pertaining to the defendant‘s conduct. The actual determination is if the agreed-upon facts could be interpreted as satisfying the necessary elements of self defense or if not.” (Tr. at 9-10.)
{¶ 34} Gregory Huish testified that he moved into the 382 Stoddart Avenue residence in 2015. (Tr. at 17.) According to Huish, a friend owned the property and allowed Huish to live in the house in exchange for helping him maintain his other various properties. (Tr. at 19.) Huish was also paid $25 per week for this work. In 2019, three other tenants resided in the Stoddart Avenue duplex. (Tr. at 22.) According to Huish, he only interacted with Fletcher as they were coming and going in the house. (Tr. at 30.) Huish did not have any problems with Fletcher prior to the incident. (Tr. at 32.)
{¶ 35} The morning of August 12, 2019, Huish cut the grass at five buildings in the neighborhood and returned to the house in the early afternoon. (Tr. at 32.) Huish testified
{¶ 36} Huish testified that Fletcher, shortly after returning home, stormed downstairs asking about his PlayStation 4. (Tr. at 43.) Huish denied taking anything out of Fletcher‘s room. After some discussion, Fletcher returned upstairs. Huish left the residence and spoke with his neighbor who was outside reading a book. According to Huish, he could hear Fletcher yelling inside the house. (Tr. at 45-46.) Huish estimated that he was outside for five to ten minutes. (Tr. at 48.) Huish returned to the kitchen and started cleaning up when Fletcher came back downstairs. According to Huish, Fletcher was upset and began yelling about the PlayStation 4. Fletcher asked if Huish left the house open, which he denied. (Tr. at 51.) Fletcher again returned to his room. Huish proceeded to prepare a snack in the kitchen. (Tr. at 53.)
{¶ 37} Fletcher returned to the kitchen for a third time. According to Huish, Fletcher kept screaming about the missing PlayStation 4. (Tr. at 58.) Huish testified that Fletcher began pushing him and “hitting me in the chest right here, [saying] you owe me.” (Tr. at 60.) Huish testified that at this point he was trying to ignore Fletcher. Huish eventually told Fletcher “[t]his is not my problem.” (Tr. at 63.) “Ce‘Marlo was pushing -- was pointing at me and stuff and I had nothing to do with this, I don‘t want anything to do with this, I grabbed the knife and I grabbed my drink and I walked into the kitchen ignoring him.” (Tr. at 66.) Huish went into his bedroom at which point Fletcher followed “yelling at me the whole time.” (Tr. at 66.) When asked why Huish had the knife, he stated, “I pulled out the cutting board and I was gonna get the cheese and the crackers and all the stuff and pile it up on there. And in front of me was my drink and the knife, and I can‘t carry everything at once.” (Tr. at 67.)
{¶ 38} Huish denied that he threatened Fletcher with the knife, but he acknowledged that he told Fletcher to get out of the house. (Tr. at 67.) Huish stated that Fletcher then started to grab his shirt before Huish pushed him away. (Tr. at 74.) According to Huish, Fletcher then hit him on the side and was up against the wall on top of the bed. “All I remember is I grabbed that knife and I hit it -- I hit him with it.” (Tr. at 75.) Huish
{¶ 39} Huish denied that he ever chased Fletcher to the front door despite his earlier statement during the interrogation to that effect. (Tr. at 86.) Huish stated that he did not believe he had any other choice but to use the knife. (Tr. at 87-88.) Huish denied that he realized the severity of Fletcher‘s injury. “I just threw it. I just picked it up and grabbed it and hit him with it.” (Tr. at 92.) Huish does not remember telling police that if he had not had a couple drinks this may not have happened. (Tr. at 89.) Huish also admitted to throwing the knife above the cabinets. (Tr. at 91.) “I just threw it up there and then I went upstairs.” (Tr. at 91.)
{¶ 40} On cross-examination, Huish conceded that he did not have a great frame of reference for Fletcher‘s emotions. (Tr. at 95.) Huish admitted that since there is no written lease, if a dispute arose, the only remedy available to Fletcher was to ask for his money back. (Tr. at 96.) Huish testified that he started drinking around 4:00 p.m. while he was cooking dinner. Huish acknowledged there was an empty bottle of liquor on the kitchen counter. (Tr. at 102.) While Huish admitted that he told police, “I wish I wouldn‘t have had a few cocktails, I wouldn‘t be here,” he did not remember saying it. (Tr. at 105-06.) While Huish told law enforcement his last drink was between 8:00-9:00 p.m., he admitted that was not true since he had a drink when speaking with Atchley after 9:30 p.m. (Tr. at 107.) Huish also conceded that he had a drink in his hand when arguing with Fletcher after 10:00 p.m. Huish admitted that he was generally not afraid of Fletcher and never called the police on him. (Tr. at 110.) Huish testified that Fletcher pushed him in the kitchen but not into anything. (Tr. at 113.) While Huish does not remember telling police that he “chased Ce‘Marlo into that front room,” he admitted he made the statement during the interrogation. (Tr. at 115.) Huish conceded that his testimony at trial was the first time he said that he went into the living room before Fletcher. (Tr. at 115.) While Huish told police, “I chased him out to the front door,” Huish denied that ever happened. (Tr. at 115.) Huish
{¶ 41} On redirect examination, Huish testified that he was not drunk during the evening. Huish reiterated that he did not feel like he had any other choice that night and did not think he could have done anything different under the circumstances. (Tr. at 139.) On re-cross, Huish admitted that he did not seek medical care for his purported injuries after the incident. (Tr. at 143.)
{¶ 42} At the conclusion of Huish‘s testimony, the defense rested its case and moved to admit its exhibits. Without objection from the state, the trial court admitted the exhibits. Defense counsel then renewed his
{¶ 43} On April 15, 2021, the trial court conducted a sentencing hearing in this matter. The trial court found that Count One merged with Count Two and sentenced appellant to 15-years-to-life in prison to run concurrent with a 36-month term of incarceration on Count Three. The trial court awarded appellant 610 days of jail-time credit.
{¶ 44} Appellant filed a timely appeal.
II. ASSIGNMENTS OF ERROR
{¶ 45} Appellant assigns the following as trial court error:
[1] Huish‘s murder conviction should be reversed because the trial court did not give a specific unanimity instruction on self-defense when it was required to.
[2] Huish‘s murder conviction must be reversed because the trial court incorrectly instructed the jury on the law of self-defense.
[3] Huish‘s murder conviction must be reversed because the instructions on self-defense were conflicting and confusing.
[4] Huish‘s convictions should be reversed because trial counsel was prejudicially ineffective for failing to object to the jury instructions and verdict forms, requiring reversal of Huish‘s convictions.
[5] This Court should overturn its decision to find that self-defense does not fall under the sufficiency of the evidence standard.
[6] The State‘s evidence was insufficient to disprove self-defense, thus Huish‘s conviction for murder was legally insufficient.
[7] The evidence weighed manifestly against convicting Huish of Murder
(Sic passim.)
III. LEGAL ANALYSIS
A. Appellant‘s First Assignment of Error
{¶ 46} In appellant‘s first assignment of error, he argues that the trial court erred by not providing a specific unanimity instruction on self-defense. Appellant argues that “[b]ecause a ‘patchwork’ of less than a unanimous verdict occurred here, and because the State‘s burden to disprove self-defense is a division of two or more ‘distinct conceptual groupings,’ the jury had to be instructed specifically that it must unanimously conclude that Huish committed acts falling within one such grouping on the question of self-defense, to reach a guilty verdict.” (Appellant‘s Brief at 17.)
{¶ 47} The trial court is tasked with providing all jury instructions relevant and necessary for the trier of fact to weigh the evidence and determine the facts. (Further citation omitted.) State v. Ross, 10th Dist. No. 17AP-141, 2018-Ohio-3027, ¶ 31. We review a trial court‘s refusal to provide a requested jury instruction for an abuse of discretion. Id., citing State v. Kimkhe, 10th Dist. No. 11AP-433, 2012-Ohio-1964, ¶ 12; State v. Smith, 10th Dist. No. 01AP-848, 2002 Ohio App. LEXIS 1507 (Apr. 1, 2002), citing State v. Wolons, 44 Ohio St.3d 64, 68 (1989). An abuse of discretion is a decision that is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983).3
{¶ 48} In most instances, a general instruction that the jury must resolve the case unanimously is sufficient. State v. Boyd, 10th Dist. No. 14AP-961, 2015-Ohio-5116, ¶ 14, citing State v. Johnson, 46 Ohio St.3d 96, 104 (1989) overruled on other grounds by State v. Jenks, 61 Ohio St.3d 259, 282 (1991); see also
Alternative means cases involve situations “where a single offense may be committed in more than one way * * *.” Gardner at ¶ 49. In those matters there must be jury unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means.” Id. Multiple acts cases, on the other hand, include scenarios where several acts are alleged and any one of them could constitute the crime charged. Id. at ¶ 50. In these cases,[“]the jury must be unanimous as to which act or incident constitutes the crime. To ensure jury unanimity in multiple acts cases, we require that either the State elect the particular criminal act upon which it will rely for conviction, or that the trial court instruct the jury that all of them must agree that the same underlying criminal act has been proved beyond a reasonable doubt.[“] Id. * * * In sum, alternative means cases require unanimity only as to guilt but not as to means. In contrast, multiple act matters require unanimity as to guilt and as to means.
{¶ 49} This court has found that the revisions to
B. Appellant‘s Second and Third Assignments of Error
{¶ 51} In appellant‘s second assignment of error, he argues the trial court erred by incorrectly instructing the jury on the law of self-defense. In appellant‘s third assignment of error, he argues the trial court erred as its instruction on self-defense was conflicting and confusing. For harmony of analysis, we will address both assignments of error together.
{¶ 52} Prior to revisions in
A person is allowed to act in self-defense, defense of another, or defense of that person’s residence. If, at the trial of a person who is accused of an offense that involved the person’s use of force against another, there is evidence presented that tends to support that the accused person used the force in self-defense, defense of another, or defense of that person’s residence, the prosecution must prove beyond a reasonable doubt that the accused person did not use the force in self-defense, defense of another, or defense of that person’s residence, as the case may be.
{¶ 53} Consequently, the state is required ” ‘to disprove self-defense by proving beyond a reasonable doubt that [the defendant] (1) was at fault in creating the situation giving rise to the affray, OR (2) did not have a bona fide belief that he was in imminent danger of death or great bodily harm for which the use of deadly force was his only means of escape, OR (3) did violate a duty to retreat or avoid the danger.’ ” State v. Messenger, 10th Dist. No. 19AP-879, 2021-Ohio-2044, ¶ 36, quoting Carney at ¶ 31.
{¶ 54} A jury instruction requested by the parties in a criminal case must be given when it is “relevant and necessary for the jury to weigh the evidence and discharge its duty as the factfinder.” State v. Angel, 10th Dist. No. 19AP-771, 2021-Ohio-4322, ¶ 67, quoting State v. Joy, 74 Ohio St.3d 178, 181 (1995). A jury instruction must also be appropriate under the facts of the case. State v. White, 142 Ohio St.3d 277, 2015-Ohio-492, ¶ 46, citing State v. Griffin, 141 Ohio St.3d 392, 2014-Ohio-4767, ¶ 5. When reviewing errors in a jury instruction, a trial court must consider a jury charge as a whole. Cromer v. Children‘s Hosp. Med. Ctr. of Akron, 142 Ohio St.3d 257, 2015-Ohio-229, ¶ 35-36. “An unnecessary, ambiguous, or even affirmatively erroneous portion of a jury charge does not inevitably constitute reversible error.” Id. A reviewing court will examine the giving, or not giving, of a jury instruction under an abuse of discretion analysis. (Further citation omitted.) State v. Robinson, 10th Dist. No. 17AP-853, 2019-Ohio-558, ¶ 30. When a jury instruction incorrectly states the law, “a reviewing court applies a mixed de novo and abuse of discretion standard of review,” examining “the jury charge as a whole and must determine
{¶ 55} An appellant who fails to object as required by
{¶ 56} In State v. Vinson, 10th Dist. No. 19AP-574, 2022-Ohio-2031, we explained the limitations of plain error review:
“By its very terms, the rule places three limitations on a reviewing court‘s decision to correct an error despite the absence of a timely objection at trial. First, there must be an error, i.e., a deviation from a legal rule.” State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68, 759 N.E.2d 1240 (2002). Second, to be considered plain, the error asserted “must be an ‘obvious’ defect in the trial proceedings.” Id., citing State v. Sanders, 92 Ohio St.3d 245, 257, 2001-Ohio-189, 750 N.E.2d 90 (2001). Third, the error in question “must have affected substantial rights” by “affect[ing] the outcome of the trial.” State v. Thomas, 152 Ohio St.3d 15, 2017-Ohio-8011, ¶ 33, 92 N.E.3d 821, quoting Barnes, 94 Ohio St. at 27. In other words, “the accused is ‘required to demonstrate a reasonable probability that the error resulted in prejudice’ ” to show plain
“Even if a forfeited error satisfies these three prongs, however,
Crim.R. 52(B) does not demand that an appellate court correct it” because the rule “states only that a reviewing court ‘may’ notice plain forfeited errors; a court is not obliged to correct them.” Barnes, 94 Ohio St.3d at 27. Thus, “[n]otice of plain error underCrim.R. 52(B) is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.
Vinson at ¶ 32-33.
{¶ 57} The Supreme Court of Ohio has found that an erroneous jury instruction does not meet the plain error threshold unless, ” ‘but for the error, the outcome of the trial clearly would have been otherwise.’ ” McCown at ¶ 38, quoting State v. Long, 53 Ohio St.2d 91 (1978), paragraph two of the syllabus; State v. Cunningham, 105 Ohio St.3d 197, 2004-Ohio-7007, ¶ 56, citing State v. Underwood, 3 Ohio St.3d 12 (1983), syllabus.
{¶ 58} Appellant first argues that the jury was not told that it had the option to find him not guilty if the state did not meet its burden of proof. “Rather, the transcripts reveal that the Jury was instructed to find Huish guilty if the State failed to meet its burden to disprove self-defense.” (Appellant‘s Brief at 20.)
{¶ 59} Upon review, we do not find the purported error in the jury instructions warrants reversal under plain error review. As identified by appellant, there is a clear typographical error in the jury instructions. The written instructions inadvertently wrote “find the not defendant guilty” instead of “find the defendant not guilty.” (Mar. 31, 2021 Jury Instructions at 10.) While this is an obvious typographical error, we cannot say that this error affected appellant‘s substantial rights by impacting the outcome of the trial. We must examine jury instructions as a whole. Cromer at ¶ 35-36. The jury instructions repeatedly make clear that the state must prove beyond a reasonable doubt every essential element of the offense. (See Jury Instructions at 2, 5-8.6) If the state met this burden, the
{¶ 60} Appellant next argues that the trial court erroneously instructed the jury that “it had the burden to decide whether self-defense must [be] addressed by them at all.” (Appellant‘s Brief at 18.) Appellant cites the provision of the jury instruction that reads “[i]f you find that evidence was presented that tends to support the finding that the defendant used deadly force in self-defense,” as support for this argument. (Jury Instructions at 8.) Appellant contends that the jury could have decided not to consider self-defense at all requiring reversal. We disagree.
{¶ 61} This instruction at issue addresses appellant‘s duty of production when asserting self-defense. “The plain language of
{¶ 62} Appellant alleges other provisions of the jury instructions are similarly confusing claiming that while the state has the burden to prove beyond a reasonable doubt that self-defense “does not apply,” the trial court also told the jury that self-defense may not “apply” at all “if” they found appellant‘s burden of production was not met. (Jury Instructions at 8, 10.) We disagree. As set forth in the body of the decision, Messenger has made clear that while the defendant has the burden of production, the state must prove beyond a reasonable doubt that self-defense does not apply. This requires the state to disprove any one element of self-defense. We are not persuaded that these instructions are conflicting or confusing, and certainly do not rise to the level of plain error.
{¶ 63} Finally, appellant argues that the jury should have been instructed that appellant had no duty to retreat.8 Here, the trial court did provide the jury some instruction regarding duty to retreat as follows: “[t]he defendant is presumed to have acted in self-defense when using defensive force that was intended or likely to cause death or great bodily harm to another if the person against whom the defensive force was used was in the process
{¶ 64} Appellant next argues that the jury instructions “never told [the jury] that the State had to disprove any one element beyond a reasonable doubt.” (Appellant‘s Brief at 11.) Upon review, we disagree that the failure to include language expressly stating that the state must prove beyond a reasonable doubt at least one element of self-defense requires reversal under plain error review. The instructions make clear that, to find appellant guilty, the jury must “find that the State proved beyond a reasonable doubt all of the elements of Murder and that the State proved beyond a reasonable doubt that self-defense does not apply.” (Emphasis added.) (Jury Instructions at 10.) As such, the ambiguity in the instructions was not necessarily erroneous as the definition of self-defense was provided in an earlier provision of the instructions.9 Arguendo, the ambiguity in the instructions could even be perceived to benefit appellant as the instructions could be read to require the state disprove more than one element of self-defense.
{¶ 65} As the instructions are taken as a whole, we find that the instructions provided the jury with the appropriate law and did not rise to the level of plain error. Any typographical errors or minor ambiguities in the language were clarified with other provisions in the jury instructions. As such, we cannot say that any of the cited issues meet the exceedingly high threshold required under plain error.
{¶ 67} In Parrish, the First District Court of Appeals reversed a judgment of conviction, pursuant to a bench trial, where the trial court failed to apply the amended version of
{¶ 68} Finally, appellant cites State v. Harvey, 3rd Dist. No. 9-04-69, 2005-Ohio-3882 for the proposition that inadequate jury instructions constitute plain error. However, Harvey is also inapplicable from the present case as the jury instructions in Harvey failed to set forth all of the essential elements of the offense. The defendant was convicted of possession of a deadly weapon but the jury was not instructed at any time that the weapon had to be deadly. As the instructions omitted the word “deadly” from possessing a deadly weapon, “as a matter of law, the jury instructions and verdict forms were not adequate because they did not set forth all of the essential elements of the offense.” Id. at ¶ 7. Harvey is distinct from the present case as all the essential elements of the charged offenses were included in the instructions.10
C. Appellant‘s Fifth Assignment of Error
{¶ 70} In appellant‘s fifth assignment of error, he argues that this court should overturn our decision in State v. Messenger, 10th Dist. No. 19AP-879, 2021-Ohio-2044. On October 12, 2021, the Supreme Court accepted review of Messenger on this very issue and considered whether self-defense claims may be reviewed on direct appeal for sufficiency of the evidence. In a 7-0 decision, the Supreme Court affirmed this court‘s decision writing:
H.B. 228‘s amendments to
R.C. 2901.05 did not eliminate the defendant‘s burden of production regarding a claim of self-defense. The state‘s new burden of disproving the defendant‘s self-defense claim beyond a reasonable doubt is subject to a manifest-weight review on appeal, and the Tenth District correctly declined to review the state‘s rebuttal of self-defense for sufficiency of the evidence.
State v. Messenger, __Ohio St.3d__, 2022-Ohio-4562, ¶ 27.
{¶ 71} Accordingly, on the authority of the Supreme Court‘s decision in Messenger, we overrule appellant‘s fifth assignment of error.
D. Appellant‘s Sixth and Seventh Assignments of Error
{¶ 72} In appellant‘s sixth assignment of error, he argues there was insufficient evidence to convict appellant of murder.11 In appellant‘s seventh assignment of error, he argues that his conviction for murder was against the manifest weight of the evidence. For harmony of analysis, we will address these assignments of error together.
{¶ 73} As the legal concepts of sufficiency of the evidence and manifest weight are ” ‘quantitatively and qualitatively different,’ ” they require two distinct legal standards. State v. Vinson, 10th Dist. No. 19AP-574, 2022-Ohio-2031, ¶ 23, quoting State v. Thompkins, 78 Ohio St.3d 380 (1997), paragraph two of the syllabus. Sufficiency of the evidence is a question of law that examines whether the state‘s evidence meets a ” ‘test of adequacy.’ ” Id. ” ’ “[S]ufficiency” is a term of art meaning that legal standard which is applied to determine whether the case may go to the jury or whether the evidence is legally sufficient to support the jury verdict as a matter of law.’ ” State v. Moore, 10th Dist. No. 20AP-209, 2022-Ohio-1732, ¶ 12, quoting Thompkins at 386, quoting Black‘s Law Dictionary 1433 (6th Ed.1990). “The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” (Further citations and quotations omitted.) Moore at ¶ 12. If reasonable minds could reach different conclusions as to whether each element of a crime was demonstrated beyond a reasonable doubt, a trial court cannot order an entry of acquittal. Moore, quoting State v. Bridgeman, 55 Ohio St.2d 261 (1978), syllabus.
{¶ 74} Conversely, when considering a manifest weight argument, an appellate court evaluates the evidence as an additional, or “thirteenth juror.” Vinson at ¶ 24, citing Thompkins at 387. Upon a manifest weight standard of review, an appellate court considers whether there is sufficient competent, credible evidence to support the jury‘s verdict. State v. Hoyle, 10th Dist. No. 21AP-610, 2022-Ohio-3065, ¶ 16, citing State v. Salinas, 10th Dist. No. 09AP-1201, 2010-Ohio-4738, ¶ 32, citing Thompkins at 387. ” ‘To evaluate a claim that a jury verdict is against the manifest weight of the evidence, we review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and determine whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that we must reverse the conviction and order a new trial.’ ” State v. Erb, 10th Dist. No. 21AP-402, 2022-Ohio-3797, ¶ 27, quoting State v. Wilks, 154 Ohio St.3d 359, 2018-Ohio-1562, ¶ 168, citing Thompkins at 387.
{¶ 75} The jury is the primary determinator of credibility and weight of a witnesses’ testimony. Erb at ¶ 28, citing State v. Craig, 10th Dist. No. 21AP-468, 2022-Ohio-1219, ¶ 18, citing State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus. A jury is free to “believe all, part, or none of a witness‘s testimony.” (Internal citations and quotations omitted.) Erb at ¶ 28. Reversal on manifest weight of the evidence grounds is reserved for only the most ” ‘exceptional cases.’ ” Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).
{¶ 76}
{¶ 77} Atchley testified that he resided at 380 Stoddart Avenue in the summer of 2019. On August 12, 2019, at approximately 9:30 p.m., Atchley was reading a book on his porch when he “started hearing events going on next door.” (Tr. Vol. I at 50.) Atchley heard two male voices yelling at each other for approximately 15-20 minutes. (Tr. at 51.) “The only phrase that I could make out was, ‘$400.’ ” (Tr. at 51.) After interacting with his neighbors earlier in the evening, Atchley was in his basement when he heard someone yell “help me” outside as they were running up the alleyway. (Tr. at 56.) Atchley testified that he told his roommate to call 911 and observed a “pool of blood on my front porch[.] * * * I saw Ce‘Marlo out moving toward the street, and he stumbled and was falling in the tree lawn * * * near a parked car and out in our front lawn.” (Tr. at 59.) Atchley attempted first aid and he put pressure on Fletcher‘s wounds. (Tr. at 60-61.) According to Atchley, the only thing Fletcher would say was “PS4.” (Tr.at 60.)
{¶ 78} Hill testified that she responded to a call at Stoddart Avenue on August 12, 2019. Hill and her partner arrived at the scene and identified a victim on the ground. (Tr. at 84.) Hill described the victim‘s injuries as “[t]o his torso, initially we believed it would be gunshots, but, I -- I couldn‘t tell you exactly where they were in his torso.” (Tr. at 87.) Hill testified that she attempted to speak with the victim, but he was unresponsive. (Tr. at 95-96.) Hill testified that she went inside the home and observed more blood that was “[b]asically everywhere.” (Tr. at 88.)
{¶ 79} Harmon testified that he entered the residence believing there was an armed suspect. (Tr. at 109-110.) According to Harmon, he followed a trail of blood going up the stairs. (Tr. at 110.) Harmon characterized the scene as “very, very apparent that something, a crime of violence had occurred inside the living room.” (Tr. at 112.) Harmon stated they searched the first half of the duplex and discovered the attic was shared with the other unit so he wanted to search the other side of the building. In the course of searching the attic of
{¶ 80} Jenkins testified that he performed an autopsy of the decedent, Ce‘Marlo Fletcher, on August 13, 2019. (Tr. at 192.) According to Jenkins, Fletcher had injuries “on the left upper chest consistent with a stab wound. And there was medical intervention to include sutures across the chest, and the -- some scattered abrasions, bruises, scrapes on knees.” (Tr. at 196.) Jenkins found, based on a reasonable degree of medical certainty, that the decedent‘s cause of death was a stab wound to the chest and concluded the manner of death was a homicide. (Tr. at 214.)
{¶ 81} Jury testified that she moved into the 382 Stoddart Avenue duplex in 2017. According to Jury, everyone got along for the most part with no major problems in the house. (Tr.at 256.) On August 12, 2019, Jury worked an evening shift at BP between the hours of 10:00 p.m. to 6:00 a.m. (Tr. at 259.) According to Jury, Fletcher called her around 9:30 p.m. inquiring about his missing PlayStation 4. After some discussion with Fletcher, they determined that her boyfriend had likely taken the PlayStation 4. (Tr. at 266.) Jury testified that she later got a notification on her phone of a shooting on Stoddart Avenue. (Tr. at 267.) Jury stated that while Fletcher was taller than Huish, Huish was noticeably heavily than Fletcher. (Tr at 269-70.) Gibson testified that he moved into the Stoddart Avenue residence in 2016. (Tr. Vol. III at 71.) On August 12, 2019, Gibson testified that he went to the Stoddart Avenue property around 7:30 p.m. to pay his rent and return a video game from Fletcher. Gibson went to Fletcher‘s room and noticed that the PlayStation 4 was missing. According to Gibson, he left the residence around 8:30 p.m. (Tr. at 91.) Gibson stated that he received a call from Fletcher around 9:10 p.m. (Tr. at 92-93.) Gibson testified that Fletcher was pretty upset about the missing PlayStation 4. Gibson stated that was the last time he spoke with Fletcher. According to Gibson, he received a call from Jury the next morning, and she told him what had happened. (Tr. at 95.)
{¶ 83} Close testified that he interviewed Huish about the incident at CPD headquarters. (Tr. at 167.) Huish stated that Fletcher came home from work and accused him of stealing his PlayStation 4. “He said that Mr. Fletcher was very angry, yelling and screaming.” (Tr. at 167.) Close testified that after several back-and-forth arguments, Fletcher pushed Huish multiple times. Huish stated that he then grabbed a butcher knife from the kitchen and “chased Mr. Fletcher to the front door. Once [in the living room near the front door], * * * he was telling Mr. Fletcher to get away from him and to get out of his house.” (Tr. at 168.) Close stated that Huish claimed “Mr. Fletcher pushed [him] again and/or that was when he struck him. And then during that altercation in the living room Mr. Huish stated that he stabbed Mr. Fletcher with a knife.” (Tr. at 168-69.) Huish acknowledged during the interview that he did not see a weapon on Fletcher. (Tr. at 169.)
{¶ 84} Therefore, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the state demonstrated all of the essential elements of the murder beyond a reasonable doubt.
{¶ 85} As to appellant‘s argument that reversal was warranted on manifest weight grounds, after a careful review of the transcript and evidence at trial, we find there is sufficient competent, credible evidence to support the jury‘s verdict. In addition to the evidence provided in the sufficiency analysis, there was ample testimony to support the conclusion that the state disproved, beyond a reasonable doubt, at least one element of self-defense.
{¶ 86} The state and appellant presented far different accounts of the incident on August 12, 2019. At trial, Huish testified that he never threatened Fletcher with a knife or chased him into the living room. (Tr. Vol. IV at 67, 86.) Huish did, however, acknowledge telling Fletcher to get out of the house. According to Huish, after several arguments throughout the evening, Fletcher started to grab his shirt saying he owed him money. (Tr.
{¶ 87} The state, however, addressed many of these claims on cross-examination. First, Huish conceded that he did not know Fletcher very well and did not have a great frame of reference for his emotions. (Tr. at 95.) Huish testified that he started drinking around 4:00 p.m. and acknowledged there was an empty bottle of liquor on the kitchen counter. (Tr. at 102.) Huish conceded that he told police, “I wish I wouldn‘t have had a few cocktails, I wouldn‘t be here.” (Tr. at 105-06.) Huish acknowledged that he was not generally afraid of Fletcher or had to call the police on him in the past. (Tr. at 110.) Huish also conceded that his testimony at trial was the first time he said that he went into the living room before Fletcher. (Tr. at 115.) Huish also admitted that he told police that he could not remember when Fletcher punched him in the side, but he testified at trial that it was in the front room. (Tr. at 119.) While Huish does not recall telling police that he “chased Ce‘Marlo into [the] front room,” he admitted he made that statement to Close during the interrogation. (Tr. at 115.)
{¶ 88} Given the conflicts between Huish‘s statements to law enforcement immediately after the arrest and at trial, the jury, as the trier of fact in this case, is best positioned to make determinations of credibility and weight of the testimony. State v. Messenger, 10th Dist. No. 19AP-879, 2021-Ohio-2044, ¶ 47, citing State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus. Accordingly, the jury may consider any inconsistencies and resolve them accordingly, “believ[ing] all, part, or none of a witness‘s testimony.” State v. Raver, 10th Dist. No. 02AP-604, 2003-Ohio-958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67 (1964). Therefore, in light of the evidence discussed above, as well as the record in its entirety, we do not find the jury clearly lost its way concluding that Huish murdered Fletcher and that he was not acting in self-defense.
{¶ 89} Accordingly, we overrule appellant‘s sixth and seventh assignments of error.
{¶ 90} In appellant‘s fourth assignment of error, he argues that his trial counsel was ineffective by failing to object to the alleged issues in the jury instructions and verdict forms.
{¶ 91} The United States Supreme Court has set forth a two-part test to address issues of ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668 (1984). In State v. Bradley, 42 Ohio St.3d 136, 142 (1989), the Supreme Court of Ohio adopted the Strickland test to address whether an attorney‘s representation was ineffective. State v. Leyh, 166 Ohio St.3d 365, 2022-Ohio-292, ¶ 17, citing State v. Simpson, 164 Ohio St.3d 102, 2020-Ohio-6719, ¶ 14, id. at ¶ 23 (O‘Connor, C.J., concurring), id. at ¶ 28 (Fischer, J., concurring).
{¶ 92} In order to bring a successful ineffective assistance of counsel claim, a defendant must demonstrate that the trial court‘s representation was objectively unreasonable deviating from the acceptable range of professionally competent assistance and was, therefore, deficient. Strickland at 687. “[A] court must indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id. at 689, quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955). The second prong requires a defendant to demonstrate that the trial counsel‘s representation resulted in prejudice depriving the defendant of a fair trial. Strickland at 687. A defendant must show that, without the purported prejudice, “there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.
{¶ 93} Appellant first argues counsel was ineffective by failing to request a separate finding on the issue of self-defense on the verdict forms. Appellant cites State v. Reeds, 11th Dist. No. 2007-L-120, 2008-Ohio-1781 in support of this claim. Upon review, we do not find that failing to include self-defense language in the verdict forms was necessarily ineffective assistance of counsel. The verdict forms at issue do not mention self-defense but indicate a finding for each charge and a space for “guilty” or “not guilty.” The instructions, however, state, “[i]f you find that the State proved beyond a reasonable doubt all of the
{¶ 94} Appellant‘s reliance on Reeds is misplaced. The Eleventh District Court of Appeals, in fact, reached the same result as we did in this case concluding that the exclusion of self-defense on the verdict form was not in error. Like Reeds, appellant, by admitting to killing the victim and presenting a self-defense argument, “the only conclusion that could be drawn through a finding of ‘not guilty’ ” is that Huish stabbed Fletcher in self-defense. Id. at ¶ 62. While the inclusion of self-defense on the verdict forms would have provided some clarity, here, we cannot say its absence of such language was deficient. Moreover, we cannot find that the exclusion of such language resulted in a reasonable probability to undermine the confidence in the outcome of the trial.
{¶ 95} Appellant also alleges counsel was ineffective for failing to object to various provisions in the jury instructions. This issue was extensively examined in our analysis in Section B of this decision. After review of the record, we need not examine whether counsel was ineffective as appellant cannot succeed in the second prong under Strickland demonstrating that there was a reasonable probability that, but for the ineffective error of counsel, the result would have been different. As discussed at length in this decision, the state presented ample support for finding appellant guilty of murder.
{¶ 96} Accordingly, appellant‘s fourth assignment of error is overruled.
IV. CONCLUSION
{¶ 97} Having overruled appellant‘s seven assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BEATTY BLUNT, P.J. and KLATT, J. concur.