[Cite as State v. Alexander, 2011-Ohio-6784.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                        JUDGES:
STATE OF OHIO                                   :       Hon. W. Scott Gwin, P.J.
                                                :       Hon. Sheila G. Farmer, J.
                         Plaintiff-Appellee     :       Hon. Patricia A. Delaney, J.
                                                :
-vs-                                            :
                                                :       Case No. 2011-CA-00096
WILLIAM L. ALEXANDER                            :
                                                :
                     Defendant-Appellant        :       OPINION




CHARACTER OF PROCEEDING:                            Criminal appeal from the Stark County
                                                    Court of Common Pleas, Case No.
                                                    2010CR1397

JUDGMENT:                                           Affirmed



DATE OF JUDGMENT ENTRY:                             December 27, 2011

APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

JOHN FERRERO                                        MATTHEW PETIT
Stark County Prosecutor                             116 Cleveland Avenue North, Ste. 808
110 Central Plaza S.                                Canton, OH 44702
Canton, OH 44702
[Cite as State v. Alexander, 2011-Ohio-6784.]


Gwin, P.J.

        {1}      Defendant-appellant William L. Alexander appeals from his conviction and

sentence in the Stark County Court of Common Pleas on one count of robbery a felony

of the second degree in violation of R.C. 2911.02(A)(2). Plaintiff-appellee is the State of

Ohio.

                                STATEMENT OF THE FACTS AND CASE

        {2}      On August 31, 2010, during the mid-afternoon hour Rebecca Brumback

was walking from her apartment to the corner store. As she was walking, she heard

someone running up behind her. This person ran past her several feet, and then

stopped and turned around to confront Ms. Brumback. Ms. Brumback recognized this

man from the neighborhood, and knew him as "Will." Ms. Brumback later identified this

man as appellant. Ms. Brumback testified that she had seen him in the neighborhood

over the past three or four years, and had even casually talked with him.

        {3}      Having stopped, appellant approached Ms. Brumback and struck her,

knocking her to the ground. Appellant told her, "My brother is doing four years because

of you, bitch!" Appellant then continued his assault on Ms. Brumback. Because of this

beating, Ms. Brumback suffered bruises on her face, and had a tooth knocked through

her lip, all of which caused bleeding. A man whom Ms. Brumback knew simply as "Fred"

came upon this beating and told appellant to stop. Appellant did stop, but he then rifled

through Ms. Brumback’s pockets before leaving. Appellant took some $30 in cash, as

well as a set of keys; however, he tossed the keys back at Ms. Brumback.

        {4}      Ms. Brumback reported the attack immediately to the police. The police

took photos of her injuries, and investigated whom this "Will" might be. Based upon this
Stark County, Case No. 2011-CA-00096                                                       3


investigation, the police put together a photo line-up for Ms. Brumback to review. While

examining this photo line-up, Ms. Brumback immediately identified appellant’s

photograph as the man who attacked and robbed her. Ms. Brumback testified that she

felt that appellant was referring to an individual named Aaron Kyles when he accused

her of putting "his brother" away for four years. In the neighborhood, appellant and

Kyles were close friends and held themselves out as brothers. Ms. Brumback did not

actually know whether they were full brothers, half brothers, or not related at all. She

only knew that they held themselves out as brothers.

       {5}    Ms. Brumback admitted that she had a criminal record. She had

convictions for complicity to theft, forgery, receiving stolen property, theft, and misuse of

a credit card. She also had a 2007 conviction for domestic violence. Ms. Brumback

served time in prison for some of these offenses, and was granted probation for others.

At the time of trial, she was no longer on parole or probation.

       {6}    Kori Porter testified that appellant is the father of her child. She testified

that appellant arrived at her home on August 31, 2010 at 1:00 p.m. She was able to

recall this incident because the appellant typically arrived at her home to visit her in the

evening. A friend dropped the appellant off at Ms. Porter's home. The appellant spent

the night with Ms. Porter. Ms. Porter testified that appellant did not have any “blood

brothers.” Ms. Porter did not know anyone named Aaron Kyles. Ms. Porter had never

been in trouble before nor had she ever been to a court proceeding.

       {7}    In 2010, William Leroy Alexander was charged by indictment with one

count of robbery. The case proceeded to trial by jury in the Stark County Court of

Common Pleas, with the first trial ending in a mistrial due to a hung jury.
Stark County, Case No. 2011-CA-00096                                                   4


         {8}    The case was retried before another jury, which found appellant guilty as

charged. The trial court thereafter sentenced him to a prison term of five years.

         {9}    Appellant has timely appealed raising the following three Assignments of

Error:

         {10}   “I. THE TRIAL COURT’S FINDING OF GUILTY IS AGAINST THE

MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.

         {11}   “II. THE TRIAL COURT ERRED IN ARBITRARILY FINDING THAT THE

OFFICER WAS AVAILABLE AND DILIGENT EFFORTS WERE NOT MADE TO

PROCURE HIS ATTENDANCE PURSUANT TO EVIDENCE RULE 804 AND IN

DENYING THE APPELLANT’S MOTION FOR A MISTRIAL.

         {12}   “III. THE APPELLANT WAS DENIED HIS RIGHTS TO DUE PROCESS

AND OF ASSISTANCE OF COUNSEL BECAUSE HIS TRIAL COUNSEL PROVIDED

INEFFECTIVE ASSISTANCE.”

                                                I.

         {13}   In his First Assignment of Error, appellant argues that his conviction is

based upon insufficient evidence and is against the manifest weight of the evidence. We

disagree.

         {14}   Our review of the constitutional sufficiency of evidence to support a

criminal conviction is governed by Jackson v. Virginia (1979), 443 U.S. 307, 319, 99

S.Ct. 2781, which requires a court of appeals to determine whether “after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” Id.; see

also McDaniel v. Brown (2010), ––– U.S. ––––, 130 S.Ct. 665, 673, 175 L.Ed.2d 582
Stark County, Case No. 2011-CA-00096                                                              5

(reaffirming this standard); State v. Fry, 125 Ohio St.3d 163, 926 N.E.2d 1239, 2010–

Ohio–1017 at ¶ 146; State v. Clay, 187 Ohio App.3d 633, 933 N.E.2d 296, 2010–Ohio–

2720 at ¶ 68

         {15}   Weight of the evidence addresses the evidence's effect of inducing belief.

State v. Thompkins (1997), 78 Ohio St.3d 380, 386-387, 678 N.E .2d 541, superseded

by constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio

St.3d 89, 1997–Ohio–355, 684 N.E.2d 668. When a court of appeals reverses a

judgment of a trial court on the basis that the verdict is against the weight of the

evidence, the appellate court sits as a “thirteenth juror” and disagrees with the fact

finder’s resolution of the conflicting testimony. Id. at 387, 678 N.E.2d 541, citing Tibbs v.

Florida (1982), 457 U.S. 31, 42, 102 S.Ct. 2211.(Internal quotation marks omitted).

However, an appellate court may not merely substitute its view for that of the jury, but

must find that “the jury clearly lost its way and created such a manifest miscarriage of

justice that the conviction must be reversed and a new trial ordered.” State v.

Thompkins, supra 78 Ohio St.3d at 387. (Internal quotation marks and citations

omitted). Accordingly, reversal on manifest weight grounds is reserved for “the

exceptional case in which the evidence weighs heavily against the conviction.” Id.

         {16}   In the case at bar, appellant was convicted on one count of robbery. R.C.

2911.02(A)(2) provides, “No person, in attempting or committing a theft offense * * *

shall do any of the following: * * *(2) Inflict, attempt to inflict, or threaten to inflict physical

harm."

         {17}   In the case at bar, Ms. Brumback testified that appellant punched and

kicked her. Ms. Brumback further testified that appellant went through her pockets and
Stark County, Case No. 2011-CA-00096                                                       6


removed thirty dollars in cash. Photographs of her injuries were admitted into evidence

during appellant’s jury trial.

       {18}    Viewing this evidence in a light most favorable to the prosecution, we

conclude that a reasonable person could have found beyond a reasonable doubt that a

robbery occurred. Viewing this evidence linking appellant to these offenses in a light

most favorable to the prosecution, we conclude that a reasonable person could have

found beyond a reasonable doubt that appellant had committed the crime of robbery.

We hold, therefore, that the state met its burden of production regarding each element

of the crime and, accordingly, there was sufficient evidence to support appellant's

conviction.

       {19}    “A fundamental premise of our criminal trial system is that ‘the jury is the

lie detector.’ United States v. Barnard, 490 F.2d 907, 912 (C.A.9 1973) (emphasis

added), cert. denied, 416 U.S. 959, 94 S.Ct. 1976, 40 L.Ed.2d 310 (1974). Determining

the weight and credibility of witness testimony, therefore, has long been held to be the

‘part of every case [that] belongs to the jury, who are presumed to be fitted for it by their

natural intelligence and their practical knowledge of men and the ways of men.’ Aetna

Life Ins. Co. v. Ward, 140 U.S. 76, 88, 11 S.Ct. 720, 724-725, 35 L.Ed. 371 (1891)”.

United States v. Scheffer (1997), 523 U.S. 303, 313, 118 S.Ct. 1261, 1266-1267.

       {20}    Although appellant cross-examined the witnesses in an attempt to show

the jury that they could not believe Ms. Brumback, and further presented an alibi, the

weight to be given to the evidence and the credibility of the witnesses are issues for the

trier of fact. State v. Jamison (1990), 49 Ohio St.3d 182, certiorari denied (1990), 498

U.S. 881.
Stark County, Case No. 2011-CA-00096                                                      7


       {21}   The jury was free to accept or reject any and all of the evidence offered by

the parties and assess the witness’s credibility. "While the jury may take note of the

inconsistencies and resolve or discount them accordingly * * * such inconsistencies do

not render defendant's conviction against the manifest weight or sufficiency of the

evidence". State v. Craig (Mar. 23, 2000), Franklin App. No. 99AP-739, citing State v.

Nivens (May 28, 1996), Franklin App. No. 95APA09-1236 Indeed, the jurors need not

believe all of a witness' testimony, but may accept only portions of it as true. State v.

Raver, Franklin App. No. 02AP-604, 2003- Ohio-958, at ¶ 21, citing State v. Antill

(1964), 176 Ohio St. 61, 67, 197 N.E.2d 548.; State v. Burke, Franklin App. No. 02AP-

1238, 2003-Ohio-2889, citing State v. Caldwell (1992), 79 Ohio App.3d 667, 607 N.E.2d

1096. Although the evidence may have been circumstantial, we note that circumstantial

evidence has the same probative value as direct evidence. State v. Jenks (1991), 61

Ohio St. 3d 259, 574 N.E. 2d 492.

       {22}   In addition, the jury could reasonably have decided to believe the victim

rather than appellant's alibi witness. The jury is able to observe the witnesses testify and

can evaluate body language, voice inflection, and facial expressions. These are

valuable tools for assessing credibility; tools that are not available to an appellate court

working from the record alone. As such, a jury's assessment of credibility is entitled to

considerable deference. See Thompkins, supra at 390. Although appellant presented an

alibi concerning his whereabouts on the day of the crime, the jury must consider all of

the evidence presented by the state as well as other defense witnesses in determining

the validity of the alibi. In doing so in this case, we do not find the jury lost its way in
Stark County, Case No. 2011-CA-00096                                                        8

reviewing the conflicting evidence and finding appellant guilty of robbery. See, State v.

McCall (Oct. 10, 2001), Muskingum App. No. 01CA23.

       {23}   After reviewing the evidence, we cannot say that this is one of the

exceptional cases where the evidence weighs heavily against the conviction. The jury

did not create a manifest injustice by concluding that appellant was guilty of the crime

charged in the indictment.

       {24}   We conclude the trier of fact, in resolving the conflicts in the evidence, did

not create a manifest injustice to require a new trial.

       {25}   Appellant’s First Assignment of Error is overruled.

                                                  II.

       {26}   In his Second Assignment of Error appellant challenges the trial court's

ruling on his efforts to introduce the prior testimony of the investigating officer Detective

William Adams given during his first jury trial. We disagree.

       {27}   In the case at bar, the investigating officer testified during appellant’s first

jury trial. During the appellant’s subsequent re-trial, the witness had been subpoenaed

by the State, but was not called to testify because the officer was on medical leave.

Appellant did not subpoena this witness as a defense witness. Appellant sought

permission to present a transcript of Detective Adams’ testimony from appellant’s first

jury trial. The trial court overruled appellant’s request.

       {28}   Evid.R. 804(B)(1) permits the admissibility at trial of former testimony

taken at a previous trial upon a showing that the witness is unavailable despite

reasonable efforts made in good faith to secure his presence at trial. State v. Keairns

(1984), 9 Ohio St. 3d 228, 460 N.E. 2d 245, paragraph two of the syllabus. In the case
Stark County, Case No. 2011-CA-00096                                                        9


at bar, we note that appellant is the party who sought to introduce the former testimony.

As such, there can be no violation of the Confrontation Clause. Any such objection has

been waived. State v. Pasqualone, 121 Ohio St.3d 186, 902 N.E.2d 270, 2009-Ohio-

315 at ¶14. Therefore, “unavailability” was the only issue for the trial court to decide.

       {29}   In the case at bar, when the state rested without calling Detective Adams

to testify, appellant’s counsel discovered that Detective Adams was on medical leave.

Counsel for appellant then requested to present evidence through Detective Les Baroni

to establish that Detective Adams was on medical leave and therefore unavailable to

testify. In responding to inquiries by the trial court, appellant’s counsel admitted that he

had not issued a subpoena for Detective Adams' appearance at trial, and had not made

any effort to ascertain whether he would be available to testify. Only after the state

rested and the court granted a noon recess for lunch did counsel for appellant discover

information about Detective Adams’ medical condition. Upon inquiring of the

prosecution, the trial court ascertained that Detective Adams had shoulder surgery, but

was ambulatory and conversant. Counsel for the state informed the trial court that

Detective Adams was able to be contacted, had in fact been to the police station that

day to check on his cases, and had talked with the prosecutor about testifying. The

prosecutor told Detective Adams that he would not use him at trial, having changed his

trial strategy. Appellant simply ascertained over the lunch hour recess that Detective

Adams was no longer at the police station, and the detectives did not know where he

was now.

       {30}   The trial court did not find this to be due diligence, and denied appellant's

request to use Detective Adams' testimony from appellant’s first jury trial. The trial court
Stark County, Case No. 2011-CA-00096                                                     10


found that Detective Adams was not unavailable and that appellant had not used due

diligence to secure his appearance at trial. We do not view the trial court's ruling as to

his unavailability to be in error.

       {31}    The court further denied appellant's request for a continuance of the trial

to secure Detective Adams' appearance, and overruled his motion for a mistrial based

upon counsel's alleged ineffectiveness in failing to subpoena Detective Adams.

       {32}    Ordinarily a reviewing court analyzes a denial of a continuance in terms of

whether the court has abused its discretion. Ungar v. Sarafite (1964), 376 U.S. 575,

589, 84 S.Ct. 841, 11 L.Ed.2d 921. If, however, the denial of a continuance is directly

linked to the deprivation of a specific constitutional right, some courts analyze the denial

in terms of whether there has been a denial of due process. Bennett v. Scroggy (6th Cir.

1986), 793 F.2d 772. A defendant has an absolute right to prepare an adequate

defense under the Sixth Amendment of the United States Constitution and a right to due

process under the Fifth and Fourteenth Amendments. United States v. Crossley (6th

Cir. 2000), 224 F.3d 847, 854. The United States Supreme Court has recognized that

the right to offer the testimony of witnesses and compel their attendance is

constitutionally protected. Washington v. Texas (1967), 388 U.S. 14, 19, 87 S.Ct. 1920,

1923, 18 L.Ed.2d 1019. The Ohio Supreme Court recognized that the right to present a

witness to establish a defense is a fundamental element of due process of law.

Lakewood v. Papadelis (1987), 32 Ohio St.3d 1, 4-5, 511 N.E.2d 1138. A trial court's

failure to grant a continuance to enable a defendant to exercise his constitutionally

protected right to offer the testimony of witnesses and compel their attendance may, in

some circumstances, constitute a denial of due process. Mackey v. Dutton (6th Cir.
Stark County, Case No. 2011-CA-00096                                                   11

2000), 217 F.3d 399, 408; Bennett v. Scroggy, supra, 793 F.2d at 774. See also, State

v. Wheat, Licking App. No. 2003-CA-00057, 2004-Ohio-2088 at ¶ 16.

      {33}   Among the factors to be considered by the court in determining whether

the continuance was properly denied are: (1) the length of the requested delay, (2)

whether other continuances had been requested and granted, (3) the convenience or

inconvenience to the parties, witnesses, counsel and court, (4) whether the delay was

for legitimate reasons or whether it was “dilatory, purposeful or contrived”, (5) whether

the defendant contributed to the circumstances giving rise to the request, (6) whether

denying the continuance will result in an identifiable prejudice to the defendant's case,

and (7) the complexity of the case. Powell v. Collins (6th Cir. 2003), 332 F.3d 376, 396;

State v. Unger (1981), 67 Ohio St.2d 65, 67-68, 423 N.E.2d 1078, 1080; State v. Wheat,

supra at ¶ 17.

      {34}   In Wheat, supra, the appellant argued that the trial court erred when it

failed to continue his trial to secure witnesses he had subpoenaed. This Court found no

abuse of discretion because the request for a continuance did not demonstrate the

amount of time necessary to secure the attendance of the witnesses, or the nature of

their testimony. 2004-Ohio-2088 at ¶ 21. Citing State v. Brooks (1989), 44 Ohio St.3d

185, 542 N.E.2d 636, we held that because defense counsel failed to proffer what the

desired testimony of the absent witnesses would have been and how it was relevant to

the defense, we could not find prejudice from the denial of the motion to continue. Id. at

¶ 22-24, 542 N.E.2d 636.

      {35}   “When the reason for a continuance is to secure the attendance of a

witness, ‘it is incumbent upon the moving party to show that such witnesses would have
Stark County, Case No. 2011-CA-00096                                                    12


given substantial favorable evidence and that they were available and willing to testify.’”

State v. Komadina, 9th Dist. No. 02CA008104, 2003-Ohio-1800, ¶ 32, quoting State v.

Mills, 5th Dist. No. 01-COA-01444, 2002-Ohio-5556. Because appellant's counsel did

not make a timely proffer of any anticipated testimony, the trial court could not have

known how or why said testimony was vital to appellant's defense when it denied the

continuance. State v. Snowden (1976), 49 Ohio App.2d 7, 17, 359 N.E.2d 87 (not an

abuse of discretion to deny continuance due to absence of purportedly “critical defense

witness” where no proffer made of witness' anticipated testimony at the time of

decision).

      {36}   In the case at bar, appellant did not proffer the former testimony of

Detective Adams into the record before the trial court. We must be mindful of the “ * * *

elementary proposition of law that an appellant, in order to secure reversal of a

judgment against him, must not only show some error but must also show that that error

was prejudicial to him.” See Smith v. Flesher (1967), 12 Ohio St. 2d 107, 233 N.E. 2d

137; State v. Stanton (1968), 15 Ohio St.2d 215, 217, 239 N.E.2d 92,94; Wachovia Mtg.

Corp. v Aleshire, Licking App. No. 09 CA 4, 2009-Ohio-5097 at ¶16. See, also, App.R.

12(D). Given that the former testimony of Detective Adams was not proffered to the trial

court and made a part of the record on this appeal, we do not have anything by way of

evidence by which to demonstrate that appellant was prejudiced by the failure to

present Detective Adams’ testimony during his second trial.
Stark County, Case No. 2011-CA-00096                                                      13


       {37}   The evidence was uncomplicated and straightforward. Appellant has not

demonstrated prejudice from the court's denial of his motion to continue, and the court

did not abuse its discretion in overruling the motion.

       {38}   Appellant further argues that the trial court should have granted a mistrial.

       {39}   The granting of a mistrial rests within the sound discretion of the trial court

as it is in the best position to determine whether the situation at hand warrants such

action. State v. Glover (1988), 35 Ohio St.3d 18, 517 N.E.2d 900; State v. Jones (1996)

115 Ohio App.3d 204, 207, 684 N.E.2d 1304, 1306.

       {40}   "A mistrial should not be ordered in a criminal case merely because some

error or irregularity has intervened * * *." State v. Reynolds (1988), 49 Ohio App.3d 27,

33, 550 N.E.2d 490, 497. The granting of a mistrial is necessary only when a fair trial is

no longer possible. State v. Franklin (1991), 62 Ohio St.3d 118, 127, 580 N.E.2d 1, 9;

State v. Treesh (2001), 90 Ohio St.3d 460, 480, 739 N.E.2d 749, 771. When reviewed

by the appellate court, we should examine the climate and conduct of the entire trial,

and reverse the trial court's decision as to whether to grant a mistrial only for a gross

abuse of discretion. State v. Draughn (1992), 76 Ohio App.3d 664, 671, 602 N.E.2d

790, 793-794, citing State v. Maurer (1984), 15 Ohio St.3d 239, 473 N.E.2d 768,

certiorari denied (1985), 472 U.S. 1012, 105 S.Ct. 2714, 86 L.Ed.2d 728; State v.

Gardner (1998), 127 Ohio App.3d 538, 540-541, 713 N.E.2d 473, 475.

       {41}   In evaluating whether the trial judge acted properly in declaring a mistrial,

the court has been reluctant to formulate precise, inflexible standards. Rather, the court

has deferred to the trial court's exercise of discretion in light of all the surrounding

circumstances:
Stark County, Case No. 2011-CA-00096                                                      14


       {42}   " * * * We think, that in all cases of this nature, the law has invested Courts

of justice with the authority to discharge a jury from giving any verdict, whenever, in their

opinion, taking all the circumstances into consideration, there is a manifest necessity for

the act, or the ends of public justice would otherwise be defeated. They are to exercise

a sound discretion on the subject; and it is impossible to define all the circumstances,

which would render it proper to interfere. To be sure, the power ought to be used with

the greatest caution, under urgent circumstances, and for very plain and obvious

causes. * * * But, after all, they have the right to order the discharge; and the security

which the public have for the faithful, sound, and conscientious exercise of this

discretion, rests, in this, as in other cases, upon the responsibility of the Judges, under

their oaths of office." United States v. Perez (1824), 22 U.S. (9 Wheat. 579, 580) 9

Wheat. 579, 22 U.S. 579, 6 L.Ed. 165. See, also, United States v. Clark (C.A. 2, 1979),

613 F.2d 391, certiorari denied 449 U.S. 820, 101 S.Ct. 78, 66 L.Ed.2d 22 (a second

prosecution is not barred on double jeopardy grounds when the trial judge had no

reasonable alternative to ordering a mistrial in the first trial); State v. Widner (1981), 68

Ohio St.2d 188, 190, 429 N.E.2d 1065, 1066-1067.

       {43}   In Illinois v. Somerville (1973), 410 U.S. 458, 464, 93 S.Ct. 1066, 35

L.Ed.2d 425, the Supreme Court further refined the circumstances under which a trial

court can order a mistrial:

       {44}   "A trial judge properly exercises his discretion to declare a mistrial if an

impartial verdict cannot be reached, or if a verdict of conviction could be reached but

would have to be reversed on appeal due to an obvious procedural error in the trial. If

an error would make reversal on appeal a certainty, it would not serve 'the ends of
Stark County, Case No. 2011-CA-00096                                                       15


public justice' to require that the Government proceed with its proof when, if it

succeeded before the jury, it would automatically be stripped of that success by an

appellate court."

       {45}   We do not know from the record before what Detective Adams’ testimony

would have been or why appellant sought to have it admitted during his trial. We cannot

presume prejudice from a silent record. State v. Reddrick, Montgomery App. No. CA

9710, 1987 WL 14536, *4 (June 22, 1987).

       {46}   Accordingly, under these circumstances, the trial court did not abuse its

discretion in overruling the mistrial motion.

       {47}   Appellant’s Second Assignment of Error is overruled.

                                                III.

       {48}   In his Third Assignment of Error, appellant argues that he was denied

effective assistance of trial counsel. We disagree.

       {49}   A claim of ineffective assistance of counsel requires a two-prong analysis.

The first inquiry is whether counsel's performance fell below an objective standard of

reasonable representation involving a substantial violation of any of defense counsel's

essential duties to appellant. The second prong is whether the appellant was prejudiced

by counsel's ineffectiveness. Lockhart v. Fretwell (1993), 506 U.S. 364, 113 S.Ct. 838;

Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052; State v. Bradley (1989),

42 Ohio St.3d 136, 538 N.E.2d 373.

       {50}   In order to warrant a finding that trial counsel was ineffective, the petitioner

must meet both the deficient performance and prejudice prongs of Strickland and
Stark County, Case No. 2011-CA-00096                                                   16

Bradley. Knowles v. Mirzayance (2009), --- U.S. ----, 129 S.Ct. 1411, 1419, 173 L.Ed.2d

251.

       {51}   To show deficient performance, appellant must establish that “counsel’s

representation fell below an objective standard of reasonableness.” Strickland v.

Washington, 466 U.S. at 688, 104 S.Ct. at 2064. This requires showing that counsel

made errors so serious that counsel was not functioning as the “counsel” guaranteed

the defendant by the Sixth Amendment. Strickland v. Washington 466 U.S. at 687, 104

S.Ct. at 2064. Counsel also has a duty to bring to bear such skill and knowledge as will

render the trial a reliable adversarial testing process. Strickland v. Washington 466 U.S.

at 688, 104 S.Ct. 2052 at 2065.

       {52}   “Thus, a court deciding an actual ineffectiveness claim must judge the

reasonableness of counsel's challenged conduct on the facts of the particular case,

viewed as of the time of counsel's conduct. A convicted defendant making a claim of

ineffective assistance must identify the acts or omissions of counsel that are alleged not

to have been the result of reasonable professional judgment. The court must then

determine whether, in light of all the circumstances, the identified acts or omissions

were outside the wide range of professionally competent assistance. In making that

determination, the court should keep in mind that counsel's function, as elaborated in

prevailing professional norms, is to make the adversarial testing process work in the

particular case. At the same time, the court should recognize that counsel is strongly

presumed to have rendered adequate assistance and made all significant decisions in

the exercise of reasonable professional judgment.” Strickland v. Washington, 466 U.S.

668 at 689,104 S.Ct. at 2064.
Stark County, Case No. 2011-CA-00096                                                      17


       {53}   In light of “the variety of circumstances faced by defense counsel [and] the

range of legitimate decisions regarding how best to represent a criminal defendant,” the

performance inquiry necessarily turns on “whether counsel’s assistance was reasonable

considering all the circumstances.” Strickland v. Washington, 466 U.S. 668 at 689,104

S.Ct. at 2064. At all points, “[j]udicial scrutiny of counsel’s performance must be highly

deferential.” Strickland v. Washington, 466 U.S. 668 at 689,104 S.Ct. at 2064.

       {54}   Appellant must further demonstrate that he suffered prejudice from his

counsel’s performance. See Strickland, 466 U. S. at 691 (“An error by counsel, even if

professionally unreasonable, does not warrant setting aside the judgment of a criminal

proceeding if the error had no effect on the judgment”). To establish prejudice, “[t]he

defendant must show that 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. To prevail on his ineffective-assistance claim, appellant must

show, therefore, that there is a “reasonable probability” that the trier of fact would not

have found him guilty.

       {55}   Appellant contends that his trial counsel was ineffective because he failed

to subpoena Detective Adams.

       {56}   Counsel's decision regarding the calling of witnesses is within the purview

of trial strategy, and the failure to subpoena witnesses for trial does not violate counsel's

duty to defendant absent a showing of prejudice. State v. Coulter (1992), 75 Ohio

App.3d 219, 230, 598 N.E.2d 1324; State v. Hunt (1984), 20 Ohio App.3d 310, 312, 486

N.E.2d 108. Accordingly, courts have traditionally been reluctant to find ineffective
Stark County, Case No. 2011-CA-00096                                                   18


assistance of counsel in those cases where an attorney fails to call a particular witness.

See State v. Otte (1996), 74 Ohio St.3d 555, 565-66, 660 N.E.2d 711; State v. Williams

(1996), 74 Ohio St.3d 456, 659 N.E.2d 1254.

      {57}   In the case at bar, defense counsel failed to proffer to the trial court what

the desired testimony of Detective Adams was and how it would have been relevant and

material to the defense. Evid.R. 103(A)(2) requires an offer of proof in order to preserve

any error in excluding evidence, unless the excluded evidence is apparent in the record.

Given that the former testimony of Detective Adams was not proffered to the trial court

and made a part of the record on this appeal, we do not have anything by way of

evidence by which to demonstrate that appellant was prejudiced by the failure to

present Detective Adams’ testimony during his second trial.

      {58}   Appellant has failed to demonstrate that there exists a reasonable

probability that, had trial counsel subpoenaed Detective Adams the result of his case

would have been different.

      {59}   Appellant’s Third Assignment of Error is overruled.
Stark County, Case No. 2011-CA-00096                                          19


      {60}   For the foregoing reasons, the judgment of the Stark County Court of

Common Pleas, Ohio, is affirmed.

By Gwin, P.J.,

Farmer, J., and

Delaney, J., concur




                                         _________________________________
                                         HON. W. SCOTT GWIN

                                         _________________________________
                                         HON. SHEILA G. FARMER

                                         _________________________________
                                         HON. PATRICIA A. DELANEY
[Cite as State v. Alexander, 2011-Ohio-6784.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                    :
                                                 :
                            Plaintiff-Appellee   :
                                                 :
                                                 :
-vs-                                             :       JUDGMENT ENTRY
                                                 :
WILLIAM L. ALEXANDER                             :
                                                 :
                                                 :
                        Defendant-Appellant      :       CASE NO. 2011-CA-00096




        For the reasons stated in our accompanying Memorandum-Opinion, the

 judgment of the Stark County Court of Common Pleas, Ohio, is affirmed. Costs to

 appellant.




                                                     _________________________________
                                                     HON. W. SCOTT GWIN

                                                     _________________________________
                                                     HON. SHEILA G. FARMER

                                                     _________________________________
                                                     HON. PATRICIA A. DELANEY
