[Cite as State v. Huddleston,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT LOGAN COUNTY

STATE OF OHIO, CASE NO. 8-17-21 PLAINTIFF-APPELLEE,

v.

ZACHARIAH HUDDLESTON, OPINION

DEFENDANT-APPELLANT.

Appeal from Logan County Common Pleas Court Trial Court No. CR16-12-0339

Judgment Affirmed

Date of Decision: March 26, 2018

APPEARANCES:

Craig M. Jaquith for Appellant

Eric C. Stewart for Appellee Case No. 8-17-21

ZIMMERMAN, J.

{¶1} Appellant, Zachariah Huddleston (“Huddleston”), appeals the judgment

and sentence of the Logan County Common Pleas Court wherein he was found

guilty of one count of Aggravated Robbery; one count of Aggravated Burglary; one

count of Murder; and one count of Having Weapons While Under Disability. He

was also found guilty of a gun specification pursuant to R.C. 2941.145 relative to

Counts One, Two and Three. For the reasons that follow, we affirm the ruling of

the trial court.

Facts and Procedural History

{¶2} On December 6, 2016, Huddleston was indicted by the Logan County

Grand Jury on three charges, Aggravated Robbery, Aggravated Burglary and

Murder. However, a superseding indictment was filed in Logan County on April

11, 2017 charging Huddleston with: Count One, Aggravated Robbery, in violation

of R.C. 2911.01(A)(1), a felony of the first degree; Count Two, Aggravated

Burglary, in violation of R.C. 2911.11(A)(1), a felony of the first degree; Count

Three, Murder, in violation of R.C. 2903.02(B), an unclassified felony; Count Four,

Having Weapons While Under Disability, in violation of 2923.13(A)(3), a felony of

the fourth degree; and Count Five, Tampering with Evidence, in violation of R.C.

2921.12(A)(1), a felony of the third degree. Firearm Specifications, in violation of

R.C. 2941.145, were also contained in Counts One, Two and Three. The charges

stem from the November 24, 2016 burglary, robbery and murder of Jeffrey

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Brentlinger (“Brentlinger”) in Logan County, Ohio. Huddleston pled not guilty to

all charges.

{¶3} On July 25, 2017 the case proceeded to a three-day jury trial. At trial

the State called sixteen (16) witnesses. After the State rested its case in chief,

Huddleston made a Crim.R. 29 motion to the trial court arguing that all charges

against him should be dismissed due to the State’s failure to prove its case. The trial

court granted the motion as to count five only. Thereafter, Huddleston did not

present a defense.

{¶4} Ultimately, the jury found Huddleston guilty of Aggravated Robbery,

Aggravated Burglary, Murder, Having Weapons While Under Disability and the

firearm specification. However, the trial court merged the aggravated robbery and

aggravated burglary convictions (counts one and two) into the murder conviction

(count three) and sentenced Huddleston to 15 years to life on the murder conviction,

consecutive to a three-year sentence on the weapons charge and to a three-year

sentence on the gun specification, for a total sentence of 21 years to life. (Doc. 155).

It is from this judgment that Huddleston appeals, asserting the following

assignments of error for our review.

ASSIGNMENT OF ERROR NO. I

Mr. Huddleston’s trial counsel rendered ineffective assistance of counsel, in violation of his constitutional rights. Sixth and Fourteenth Amendments, United States Constitution; Article I, Sections 10 and 16, Ohio Constitution; Strickland v. Washington,

,

,

(1984). (Tr. 385, 394,

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401, 410-411, 416, 448, 450, 452-453, 460, 463, 464, 524; State’s Ex. 13.)

ASSIGNMENT OF ERROR NO. II

The trial court erred in allowing irrelevant, prejudicial evidence, disregarding State v. Creech, and issuing an erroneous, confusing jury instruction. Fifth Amendment, United States Constitution; Article I, Sections 10 and 16, Ohio Constitution; Evid.R. 401 and 402; State v. Creech, Slip Op.

. (Tr. 385, 394, 401, 410-411, 416, 448, 450, 452-453, 460, 463, 464, 524; State’s Ex. 13.)

First Assignment of Error

{¶5} In his first assignment of error, Huddleston claims that his trial counsel

rendered ineffective assistance of counsel: for failing to seek a stipulation to his

prior conviction as to the weapons disability charge; for failing to seek redaction of

irrelevant, prejudicial portions of his recorded statements; and for failing to object

to incorrect, confusing jury instructions.

Standard of Review

{¶6} To establish a claim for ineffective assistance of counsel, a defendant

must show that counsel's performance was deficient and that counsel's deficient

performance prejudiced him. State v. Phillips, 3d Dist. Allen No. 1-15-43, 2016-

Ohio-3105,

, ¶ 11, (emphasis added), citing State v. Jackson,

,

,

, citing, Strickland v.

Washington,

,

,

(1984). The failure

to make either showing defeats a claim of ineffective assistance of counsel. State v.

Bradley,

,

(1989), quoting Strickland at 697,

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(“[T]here is no reason for a court deciding an ineffective assistance

claim to approach the inquiry in the same order or even to address both components

of the inquiry if the defendant makes an insufficient showing on one.”).

Analysis

Stipulation of Prior Conviction

{¶7} Here, Huddleston argues that he was denied effective assistance of

counsel because his trial counsel should have stipulated to his prior conviction.

Specifically, Huddleston claims that because his trial counsel failed to offer a

stipulation to his prior conviction that placed him under a legal disability, the jury

learned of his disability during trial which thereby resulted in the ineffective

assistance of counsel. We disagree.

{¶8} In our review of the record, we find the only reference to Huddleston’s

prior conviction (that placed him under a legal disability) occurred during the

testimony of Det. Brugler of the Logan County Sheriff’s Department. During that

testimony, Det. Brugler identified a 2012 judgment entry from the Auglaize County

Common Pleas Court (purportedly) convicting Huddleston of a crime that

prohibited him from possessing a firearm. Det. Brugler read from the entry in open

court and testified that Huddleston’s date of birth and the last four digits of his

(Huddleston’s) social security number matched those of the defendant on the

judgment entry. (Tr. 419-420). However, on cross examination, Huddleston’s trial

counsel attempted to raise doubt that Huddleston was the person convicted in

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Auglaize County because Det. Brugler was not personally present in the Auglaize

County courtroom during that case. Further, during cross examination of Det.

Brugler, trial counsel pointed out that a full social security number was missing from

the entry.

{¶9} Even though Huddleston was found guilty on the Having Weapons

While Under Disability charge, we find the decision not to stipulate (to the prior

conviction) was a strategic trial tactic of counsel that attempted to place doubt in the

jury’s mind as to whether Huddleston was ever convicted in Auglaize County of a

crime that placed him under a disability. As such, strategic trial decisions, even if

unsuccessful, generally do not constitute ineffective assistance of counsel. See State

v. Carter,

,

(1995).

{¶10} Because we give deference to strategic trial tactics of counsel, we find

nothing in the record supporting Huddleston’s argument that his trial counsel’s

performance was deficient due to the failure to stipulate to this prior conviction.

Thus, this first portion of Huddleston’s argument is without merit.

Statements of Defendant

{¶11} Huddleston next argues that he received ineffective assistance of

counsel because his trial counsel failed to seek the redaction of “irrelevant

statements” made by Huddleston during an interview with Det. Brugler and made

during his recorded telephone conversations from the county jail. Relative to this

argument, Huddleston directs us to fifteen (15) instances in the trial transcript

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wherein he asserts that trial counsel’s failure to pursue the redaction of various

statements amounted to ineffective assistance of counsel.

{¶12} We note that the majority of Huddleston’s statements were made

during his telephone conversations with visitors which occurred while he was

incarcerated in the Logan County Jail awaiting trial. Only 5 of the complained-of

statements were made to Det. Brugler during Huddleston’s interview which we will

discuss first.

Statements to Det. Brugler

{¶13} Huddleston argues that the below statements (from States Exhibit 12)

made to Det. Brugler should not have been played to the jury. The statements, as

they appear in the transcript, are as follows:

• “What the fuck am I’m [sic] going to rob somebody for when I can sell a little bit of weed or something?” (Tr. 385). [sic] (Actually Tr. 386).

• “Is Bellefontaine a racist town?” (Tr. 394). [sic] (Actually Tr. 395).

• “[Mr. Brentlinger] was just creepy as hell. Very creepy, man.” (Tr. 401). [sic] (Actually 402).

• “I just got out in July, July 24th [2016].” (Tr. 410). [sic] (Actually Tr. 411).

• “I had a job at IPS. . . . I quit. I walked out. . . . Yeah, I walked out. Fuck that.” (Tr. 410-411). [sic] (Actually Tr. 411-412).

{¶14} States Exhibit 12 contains the interview video between Huddleston

and Det. Brugler and Det. Joseph. That interview commences on page 377 of the

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trial transcript. The interview starts with Det. Brugler providing Huddleston with

Miranda warnings. (Tr. 379-380). Thereafter, Det. Brugler advised Huddleston of

the potential charges that he faced as a result of the death of Brentlinger. (Tr. 380-

381).

{¶15} Next, Det. Brugler reveals to Huddleston some of the prosecution’s

evidence regarding the murder, verifying to Huddleston that co-defendant

(Marquevous Watkins) fired the fatal shot that killed Brentlinger. (Tr. 381-382).

Det. Brugler also explains to Huddleston that he has interviewed other individuals

involved in the robbery of Mr. Brentlinger. (Tr. 382-383).

{¶16} Det. Brugler then provides Huddleston the opportunity to tell his side

of the story, wherein Huddleston mitigates his involvement in Brentlinger’s death

(Id. starting at page 383). During this interplay, Huddleston spells out the plan to

“hustle” Brentlinger by using two young girls (co-defendants Jasmine and Tatiana)

as bait to rob Brentlinger. (Tr. 383-388). Huddleston denies any involvement in

Brentlinger’s murder by telling the detectives “what the fuck am I’m [sic] going to

rob somebody for when I can sell a little bit of weed or something”. (Tr. 386).

Huddleston argues that this statement, should have been redacted by counsel.

{¶17} The interview continues with Huddleston admitting to the detectives

that he was “drunk, like two days straight”, denying that a plan existed to rob

Brentlinger, attempting to lessen his involvement in Brentlinger’s murder. (Tr.

389). Huddleston further tells the detectives that “I didn’t murder nobody”. (Tr.

-8-

). Next, Huddleston asks the detectives “is Bellefontaine a racist town”,

wondering whether Jasmine (his girlfriend and co-defendant) would be treated fairly

in court. (Tr. 391-396). This is the second statement that Huddleston suggests

should have been redacted by counsel.

{¶18} Thereafter, Huddleston tells the detectives “I don’t rob people” and

attempts to defend his co-defendants (Tatiana and Jasmine’s) involvement (with

Brentlinger) by referring to Brentlinger as being “creepy as hell”. (Tr. 401-402).

This is the third statement that Huddleston argues should have been redacted by

counsel.

{¶19} And finally, in relation to the last two statements which Huddleston

argues are prejudicial and subject to redaction, Huddleston tells the detectives “I

just got out in July, July 24th. I’ve been on the straight and narrow since then”. (Tr.

411). He also tells the detectives that he had been employed but quit that job. (Tr.

411-412).

{¶20} Upon our review of these passages (which Huddleston claims are

prejudicial), Huddleston has not shown us how he suffered prejudice from their

admission. To the contrary, the first two statements contain evidence of

Huddleston’s lack of intent to rob or murder Brentlinger. The third statement casts

suspicion on the conduct of Brentlinger, and the last two statements show that

Huddleston was recently employed. Such evidence, if believed by the jury, was

material as to Huddleston’s criminal intent in relation to the robbery and murder

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charges. More importantly, because these statements provided the jury with

possible defenses as to Huddleston’s intent and lack of knowledge to the conspiracy

in Brentlinger’s murder, we find trial counsel’s decision not to redact them was a

strategic trial tactic. Moreover, we find that even if these statements were redacted

by the trial court, the jury could have arrived at the same verdict based upon

Huddleston’s confession (to Det. Brugler) and the competent and credible evidence

of a conspiracy adduced at trial.

{¶21} Accordingly, applying the Strickland test (as to ineffective assistance

of counsel), Huddleston has not shown us that he was prejudice by the admission of

these statements into evidence.

Jailhouse Phone Calls

{¶22} Huddleston also argues that trial counsel was ineffective for failing to

seek redaction of the following jailhouse telephone statements:

• “I can’t get tried in this county. How can they try me in this county? This was a dude that worked at Honda, grew up in this town, 46 years old. All the jury is going to be old white people too that probably went to school with [Mr. Brentlinger]”. (Tr. 452-453). [sic] (Actually Tr. 453-454).

• “I’m going to change the venue, man.” (Tr. 453). [sic] (Actually Tr. 454).

• “And here goes everybody’s statements. I highlighted shit where they lied and made up shit, you know.” (Tr. 463). [sic] (Actually Tr. 464).

• “[S]he beat the murder case, obviously. Because a lawyer, they fought for it and all that shit. Well, that’s what I need. [Trial

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counsel] don’t seem like he’s going to fight this shit for me.” (Tr. 464). [sic] (Actually Tr. 465).

• “If I don’t get what I want, I’m firing him. I need a different one to represent me. And conflict of interest, too. How do I know this man don’t know this man? It’s a small ass town, Bellefontaine.” (Tr. 452). [sic] (Actually 453).

• “I need to get my bond lowered. I need to get up out of here.” (Tr. 464). [sic] (Actually Tr. 465).

• “[I]f they got [Marquevous Watkins] convicted of it . . . well, they’re not going to be – they’re not too worried about me.” (Tr. 463). [sic] (Actually Tr. 464).

• Father: “Well, what’s going to be bad is how many gun charges you got.” Mr. Huddleston: “I know”. (Tr. 450). [sic] (Actually Tr. 451).

• Father: “You were institutionalized.” Mr. Huddleston: “Huh?” Father: “You were institutionalized.” Mr. Huddleston: “Hell, yeah. All that shit. I got all that shit wrong with me. And fucking, all that mental health shit, too.” (Tr. 448). [sic] (Actually Tr. 449).

• Father: “So, your – lawyers already seen the video.” Mr. Huddleston: “Yeah.” Father: “What did he say?” Mr. Huddleston: “He told my grandmother the dude’s charges ain’t going to change.” (Tr. 460). [sic] (Actually Tr. 461).

{¶23} In our review of these statements, we again determine that

Huddleston’s trial counsel’s strategy was to permit the jury to hear all of

Huddleston’s conversations. Such tactic resulted in the jury receiving all of

Huddleston’s impressions as to: how he was being represented; how unsympathetic

of a victim Brentlinger may have been; how difficult it would be for him to get a

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fair trial; and how he had mental health issues. All of these statements occurred

without him (Huddleston) having to testify and be subjected to cross-examination.

As such, all of Huddleston’s comments and complaints were received by the jury

without cross-examination.

{¶24} Moreover, and similar to our finding as to Huddleston’s statements

made to Det. Brugler, Huddleston has failed to show us how he was prejudiced by

the admission of these statements.

{¶25} Accordingly, the second portion of Huddleston’s argument under this

assignment of error is without merit.

Jury Instruction on Causation

{¶26} Finally, Huddleston argues that he received ineffective assistance of

counsel when his trial counsel failed to object to the jury instruction on “causation”.

Huddleston argues that the trial court used ‘generic’ language regarding the

causation element of the murder charge instead of tailoring its instruction to the facts

of the case. Huddleston claims he was prejudiced because the jury could have found

him responsible for Mr. Brentlinger’s murder by virtue of his “failure to act”, which,

he contends, is simply inaccurate.

{¶27} The jury instructions at issue herein are as follows:

“The State charges that the act or failure to act of the defendant caused Jeffrey Brentlinger’s death.

Cause is an essential element of the offense. Cause is an act or failure to act, which in the natural - - which in a natural and

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continuous sequence directly produces the death, and without which it would not have occurred.

The defendant’s responsibility is not limited to the immediate or most obvious result of the defendant’s act or failure to act. The defendant is also responsible for the natural and foreseeable consequences or results that follow in the ordinary course of the events from the act or failure to act.

***

The State of Ohio has presented a theory that the defendant acted in complicity with the principle offender in the commission of the murder of Jeffrey Brentlinger. A person who is complicit with another in the commission of a criminal offense is regarded as guilty as if he personally performed every act constituting the offense. This is true even if he did not personally perform every act constituting the offense and was not physically present at the time the offense was committed.

Before you can find the defendant guilty of complicity in the commission of the murder offense, you must find, beyond a reasonable doubt, * * * the defendant, while committing the aggravated burglary or aggravated - - while committing the aggravated robbery or the aggravated burglary, aided or abetted another in committing the aggravated robbery or aggravated burglary, which caused the death of Jeffrey Brentlinger.

***

Before you can find the defendant guilty of complicity to aide and abet, you must find, beyond a reasonable doubt, that the defendant supported, assisted, encourage, cooperated with, advised, or incited the principle offender in the commission of the offense and the defendant shared the criminal intent of the principle offender. Such intent may be inferred from the circumstances surrounding the offense, including, but not limited to * * * conduct before and after the offense was committed.”

(Emphasis added). (Tr. 525-528).

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{¶28} Huddleston’s trial counsel did not object to this instruction.

{¶29} In our review, we find the trial court’s instruction on causation was

taken nearly verbatim from the Ohio Jury Instructions. (Id.) Moreover, generally

the rule regarding appellate review of jury instructions is that a sole instruction must

be viewed within context of the whole set rather than in isolation. State v. Coe, 3d

Dist. No. 13-97-46, citing State v. Taylor,

(1997); State v.

Price,

, paragraph four of the syllabus. The Supreme Court of

Ohio has held that “the failure to make objections is not alone enough to sustain a

claim of ineffective assistance of counsel”. State v. Cepec,

,

.

{¶30} As to the evidence adduced at trial, Huddleston admitted (to Det.

Brugler) that he stopped at Walmart before leaving Lima to purchase ski masks and

duct tape; to entering Brentlinger’s home with his gun in hand; and to pointing his

gun in the general direction of Brentlinger. (Tr. 390, 393-394). Huddleston also

admitted to being aware that his co-defendant also had a gun. While Huddleston

argues that he could not be convicted of murder for his failure to act, we find his

statements alone could lead a jury to a finding of guilty of complicity. Thus, even

assuming that the trial court’s instruction on causation (i.e. “failure to act”) was

problematic, such instruction is harmless beyond a reasonable doubt, due to

competent and credible evidence presented by the State that Huddleston was a part

of the conspiracy which resulted in Brentlinger’s murder.

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{¶31} Moreover, Huddleston has failed to convince us how the jury

instruction on causation resulted in confusion to the jury or resulted in actual

prejudice under the totality of the evidence presented against him at trial. Thus, we

find his argument is without merit.

{¶32} Accordingly, Huddleston’s first assignment of error is not well taken

and overruled.

Second Assignment of Error

{¶33} In his second assignment of error, Huddleston argues that the trial

court committed plain error by allowing the jury to hear the irrelevant statements he

made in his interview with Det. Brugler and made during jail telephone

conversations he had with his father and his grandmother; and by issuing a

confusing jury instruction on “causation”.

Standard of Review

{¶34} Plain error is to used “‘with the utmost caution, under exceptional

circumstances and only to prevent the manifest miscarriage of justice.’” State v.

Barnes,

,

. Further, plain error only exists where

“but for the error, the outcome of the trial would clearly have been otherwise.” State

v. Biros,

(1997).

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Stipulation of Prior Conviction

{¶35} Here, Huddleston argues that under State v. Creech,

,

, the trial court erred in allowing the State to introduce into

evidence his prior felony conviction. We disagree.

{¶36} The facts of this case are clearly distinguishable from those presented

in Creech. In Creech, the Ohio Supreme Court held that the trial court abused its

discretion by refusing to permit the defendant to stipulate to his previous conviction

to a disabling act. Here, we have the opposite, as no such stipulation request was

ever made by Huddleston to the trial court.

{¶37} Nevertheless, as we determined in the first assignment of error, trial

counsel’s decision not to stipulate to Huddleston’s prior disabling act was strategic

in nature. As such, Huddleston’s claim of plain error under the circumstances of

this case is without merit.

Statements of Defendant

{¶38} Next, Huddleston contends that it was error for the trial court to admit

his recorded statements made to Det. Brugler and to his jail visitors. However,

Huddleston never objected to any of these recorded statements during trial, therefore

waiving all but plain error. State v. Lott,

(1990).

{¶39} During trial, the State presented the testimony of Det. Brugler, who

testified to the authenticity of Huddleston’s voice from the telephone recordings (of

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Huddleston) recorded while he was incarcerated at the Logan County Jail. Relative

to this argument, Evid.R. 801(D)(2) provides as follows:

Admission by party-opponent. The statement is offered against a party and is (a) the party’s own statement, in either an individual or a representative capacity, or (b) a statement of which the party has manifested an adoption or belief in its truth, or (c) a statement by a person authorized by the party to make a statement concerning the subject, or (d) a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (e) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy upon independent proof of the conspiracy.

Pursuant to Evid.R. 801(D)(2), Huddleston’s recorded conversations are admissible

as statements made by a party opponent, if relevant. As to relevance, the fifteen

statements of Huddleston shed light on his involvement in the robbery, burglary and

murder of Brentlinger. Further, and as we noted previously, some of Huddleston’s

statements contain potential defense evidence. In our review of plain error, the

admission of Huddleston’s recorded statements into evidence did not result in a

“manifest miscarriage of justice” under the evidence presented.

Jury Instruction

{¶40} Lastly, Huddleston re-argues that the trial court’s jury instruction on

“causation” was error. We disagree.

{¶41} At the outset, we note that an abuse of discretion standard normally

applies to a review of jury instructions. State v. Chinn,

.

Huddleston argues that the trial court erroneously issued an instruction on

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“causation” without tailoring the instruction to facts of his case. However, in

reviewing the record, we find Huddleston did not object to this instruction at trial

and therefore, a plain error analysis applies. Crim.R. 30(A).

{¶42} Huddleston argues that the trial court’s causation instruction permitted

the jury to convict him even though Brentlinger’s death was caused by another

person. As referenced above, the trial court’s instructions on causation tracked the

language used in the Ohio Jury Instructions. Despite Huddleston’s argument, the

trial court’s instructions on causation were a proper statement of the law. State v.

Gross,

,

. Nevertheless, as previously noted,

there was ample evidence in the record from which a reasonable trier of fact could

have concluded that Huddleston could have aided and abetted Jasmine and Tatiana

in setting forth a plan to rob Brentlinger; and aided and abetted Marquevous Watkins

in the burglary and resulting murder (of Brentlinger). Accordingly, Huddleston has

not established plain error under this argument.

{¶43} Huddleston’s second assignment of error is overruled.

{¶44} Having found no error prejudicial to the appellant herein in the

particular assignments of error, we affirm the judgment of the trial court.

Judgment Affirmed SHAW, J. concurs.

PRESTON, J. concurs in Judgment Only.

/hls -18-