Ohio Appellate Reports


STATE v. WILLARD, Unpublished Decision (12-22-2006)
2006-Ohio-6804 State of Ohio, Appellee, v. Alvin Russell
Willard, Appellant. No. L-05-1169. Court of Appeals of
Ohio, Sixth District, Lucas County. Decided: December 22,

[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] Trial Court No. CR-2004-3540.

Julia R. Bates, Lucas County Prosecuting Attorney, and
Michael J. Loisel, Assistant Prosecuting Attorney, for

Douglas A. Wilkins, for appellant.



{¶ 1} This is an appeal from a judgment of the Lucas
County Court of Common Pleas which found appellant guilty
of one count of aggravated burglary in violation of R.C.
2911.11(A)(1). For the reasons set forth below, this court
affirms the judgment of the trial court.

{¶ 2} Appellant, Alvin R. Willard, sets forth the
following three assignments of error:

{¶ 3} “I. Willard was denied effective assistance of

{¶ 4} “II. The prosecutor engaged in misconduct
during closing.

{¶ 5} “III. Willard was denied a fair trial due to
the introduction of damaging hearsay testimony.”

{¶ 6} The following undisputed facts are relevant to
the issues raised on appeal. On November 30, 2004, at
approximately 1:30 a.m., Richard Weber was home alone
watching television in his west Toledo apartment. Someone
in the hallway begin pounding loudly on the front door to
the apartment. Concerned about the lateness of the hour,
Weber did not open the door.

{¶ 7} A few moments later, intruders invaded Weber’s
apartment. They kicked the front door in with such force
that the door frame splintered. Three male intruders
entered Weber’s apartment, demanded money and drugs, and
assaulted him. They stole a Susan B. Anthony coin, rolled
change, ten labeled prescription medication bottles, and
then fled the apartment. Weber immediately called 911.

{¶ 8} While Weber was talking with the 911
dispatcher, the first responding Toledo police officer
arrived at the scene. The officer encountered the three
assailants at the entry to Weber’s apartment building.
Weber looked out from his window and identified the men as
his assailants to the officer.

{¶ 9} Weber advised the responding officer that a
Susan B. Anthony silver dollar, two Canadian half dollars,
rolled pennies and his prescription drugs had been taken by
the robbers. Appellant, one of the three suspects stopped
trying to exit Weber’s building immediately after the
robbery, lived in a nearby apartment. Appellant executed a
consent to search waiver for his apartment. Investigating
officers recovered Weber’s prescription drug bottles, the
coins, and rolled change from plain view within appellant’s

{¶ 10} On December 7, 2004, appellant was indicted
on one count of aggravated burglary in violation of R.C.
2911.11(A)(1). On December 10, 2004, trial counsel was
appointed to represent appellant. On December 13, 2004,
appellant entered a plea of not guilty at his arraignment.
On March 28, 2005, appellant’s case proceeded to jury
trial. Appellant was found guilty by the jury on March 29,
2005. Appellant was sentenced to seven years incarceration.
On May 20, 2005, appellant timely filed his notice of

{¶ 11} In his first assignment of error, appellant
claims he was denied the effective assistance of counsel.
In support, appellant maintains his counsel failed to pose
two specific questions to appellant during direct
examination. First, Weber’s Susan B. Anthony coin was
discovered on appellant’s person at the time of his arrest.
Appellant claims his counsel’s failure to ask why he
possessed Weber’s coin is indicia of ineffective assistance
of counsel.

{¶ 12} In addition, Weber furnished the police with
a description of a dog with distinctive physical
characteristics possessed by the perpetrators when they
invaded the apartment. A dog matching Weber’s description
was discovered by the police in appellant’s apartment.
Appellant claims his counsel’s failure to ask him about the
dog constitutes ineffective assistance of counsel.

{¶ 13} In order to establish an ineffective
assistance of counsel claim, a two-prong evidentiary test
must be satisfied. Strickland v. Washington (1984), 466
U.S. 668, 687. First, it must be shown that the performance
of trial counsel was so deficient it fell beneath an
objective threshold of reasonableness. Second, it must be
shown by a reasonable degree of probability that, but for
counsel’s ineffective actions, the results of the trial
would have been different. State v. Triplett, 6th Dist. No.
L-04-1135, 2006-Ohio-5465, ¶ 48. The alleged
missteps of counsel must be shown to have been so
significant that the trial cannot be adequately relied upon
as having produced a fair and just result. State v.
Leggett, 6th Dist. No. L-03-1170, 2004-Ohio-4843, ¶
25. This is an extremely high threshold to meet. In Ohio, a
properly licensed attorney is presumed competent. State v.
Lott (1990), 51 Ohio St.3d 160, 174.

{¶ 14} We have thoroughly reviewed the record in
this matter. The record reveals overwhelming objective
evidence of appellant’s guilt. Appellant was stopped
attempting to leave the victim’s 4-unit apartment building
at 1:30 a.m. immediately following the commission of the
crime. Appellant did not reside in Weber’s building and had
no connection to Weber. Weber visually identified appellant
as one of the assailants to the responding officers shortly
after the crime. Weber’s prescription drug bottles, labeled
with his name and address, were recovered inside
appellant’s apartment shortly after they were stolen. Coins
stolen from Weber were recovered from appellant’s person
and from his apartment.

{¶ 15} Given definitive and objective evidence, we
are not persuaded the outcome of the trial would have been
different had appellant been asked the suggested questions
on direct examination. Unknown responses to speculative,
incriminating questions cannot be said to have altered the
outcome of the trial. Appellant’s first assignment of error
is not well-taken.

{¶ 16} In his second assignment of error, appellant
claims the prosecutor gave statements during closing that
constitute prosecutorial misconduct. In support, appellant
relies primarily upon a remark the prosecutor made after he
summarized appellant’s past criminal record. The prosecutor
then said, “Do you see a pattern here?” No objection was

{¶ 17} The conduct of a prosecuting attorney during
trial cannot be grounds for reversal unless it is shown the
conduct was so egregious that it substantially prejudiced
appellant and prevented a fair trial. State v. Apanovitch
(1987), 33 Ohio St.3d 19, 24. In determining whether
disputed remarks by a prosecutor prevented a fair trial, an
appellate court must determine whether the jury would have
found appellant guilty beyond a reasonable doubt regardless
of the disputed remarks. State v. Maurer (1984), 15 Ohio
St.3d 239, 267. If so, the remarks did not rise to the
level of “prosecutorial misconduct.”

{¶ 18} As delineated in our response to appellant’s
first assignment of error, the record contains an abundance
of objective evidence of appellant’s guilt. Given the
clarity and volume of evidence against appellant, we are
not persuaded the outcome of the trial would have been any
different absent the disputed remarks. Nevertheless, we are
puzzled why a prosecutor with overwhelming objective
evidence would indulge in gratuitous remarks during
closing. Such a foray does risk compromising a case. With
that said, appellant’s second assignment of error is not

{¶ 19} In his third assignment of error, appellant
claims he was denied a fair trial. In support, appellant
cites instances of hearsay testimony from the trial
transcript. Appellant fails to cite any case law or other
form of legal authority in support of his third assignment
of error. We have thoroughly reviewed the record with
particular attention to the cited examples of disputed
testimony and find none of them, separately or
conjunctively, to be outcome determinative. There is
nothing in the record to suggest appellant was denied a fair
trial. Appellant’s third assignment of error is not

{¶ 20} On consideration whereof, the judgment of the
Lucas County Court of Common Pleas is affirmed. Appellant
is ordered to pay the costs of this appeal pursuant to
App.R. 24. Judgment for the clerk’s expense incurred in
preparation of the record, fees allowed by law, and the fee
for filing the appeal is awarded to Lucas County.


A certified copy of this entry shall constitute the mandate
pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4.

Peter M. Handwork, J., Arlene Singer, P.J., George M.
Glasser, J., CONCUR.

Judge George M. Glasser, retired, sitting by assignment of
the Chief Justice of the Supreme Court of Ohio.

This decision is subject to further editing by the Supreme
Court of Ohio’s Reporter of Decisions. Parties interested
in viewing the final reported version are advised to visit
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