[Cite as State v. Wade, 2011-Ohio-2433.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
: Appellate Case No. 24021
Plaintiff-Appellee :
: Trial Court Case No. 09-TRC-10954
v. :
: (Criminal Appeal from Vandalia
DANNY R. WADE : (Municipal Court)
:
Defendant-Appellant :
:
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OPINION
Rendered on the 20th day of May, 2011.
...........
JOE CLOUD, Atty. Reg. #0040301, Vandalia Municipal Prosecutor’s Office, 245 James E.
Bohanan Memorial Drive, Vandalia, Ohio 45377
Attorney for Plaintiff-Appellee
DANIEL E. BRINKMAN, Atty. Reg. #0025365, 120 West Second Street, Suite 200, Dayton,
Ohio 45402
Attorney for Defendant-Appellant
.............
FAIN, J.
{¶ 1} Defendant-appellant Danny R. Wade appeals from his conviction and sentence,
following a bench trial, for operating a motor vehicle with a prohibited concentration of
alcohol in his breath, in violation of R.C. 4511.19(A)(1)(d). Wade contends that his trial
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counsel was constitutionally ineffective. We conclude that the record of this direct appeal
fails to demonstrate that his trial counsel was constitutionally ineffective.
I
{¶ 2} Late in November, 2009, just before 1:00 in the morning, Clayton Police
Officer Randy Monnin saw a car slowly moving towards his cruiser. The driver got out of his
car and approached Monnin. The driver identified himself as Danny Wade, and gave the
officer Danny Wade’s date of birth. The driver was not able to provide Danny Wade’s social
security number when asked.
{¶ 3} At trial, Monnin identified the defendant, Wade, as the driver of the car.
{¶ 4} Wade’s behavior, slurred speech, red and bloodshot eyes, and odor of an
alcoholic beverage caused Monnin to suspect that Wade might be impaired. Monnin
administered field sobriety tests, following which, he arrested Wade, and took him to the
police station, where a breath alcohol test was administered. The breath alcohol test result
was 0.143.
{¶ 5} Wade was charged with a violation of R.C. 4511.19(A)(1)(d).
{¶ 6} At a bench trial, Wade testified that was not the person Monnin arrested.
Wade’s thirteen-year-old grandson also testified in Wade’s defense. Wade’s grandson
testified that he was in a car with his uncle, Maurice Wade, that night, and that it was Maurice
Wade whom the police pulled over and ultimately arrested.
{¶ 7} Wade’s whole defense was that it was his brother, Maurice Wade, who was
arrested for OMVI, and that Monnin’s identification of him was mistaken. (Wade’s grandson
named Maurice Wade as his “uncle,” while Wade referred to Maurice Wade as his brother, but
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it seems clear that they were referring to the same person. Possibly, Maurice Wade was the
grandson’s great uncle, to whom the grandson referred as “uncle.”) Wade and his grandson
were the only defense witnesses.
{¶ 8} The trial court found the defense witnesses lacking in credibility, found Wade
guilty as charged, and sentenced him accordingly.
{¶ 9} From his conviction and sentence, Wade appeals.
II
{¶ 10} Wade’s sole assignment of error is as follows:
{¶ 11} “APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL
BY THE ACTS AND OMISSIONS OF HIS ATTORNEY IN VIOLATION OF THE SIXTH
AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND
ARTICLE I SECTION 10 OF THE OHIO CONSTITUTION.”
{¶ 12} Wade identifies only two respects in which his trial counsel was ineffective.
First, Wade claims that his trial counsel was ineffective for having failed to subpoena his
brother to testify, because Wade’s brother would have testified that it was he, not Wade, who
was arrested for OMVI that evening. Second, Wade claims that his trial counsel was
ineffective for not having introduced evidence of Wade’s brother’s physical characteristics,
because they would have given credence to Wade’s theory that Monnin misidentified Wade as
the driver of the car (presumably because they would have shown that the two brothers were
similar in their appearance).
{¶ 13} The problem with both of these claims is that the predicate facts cannot be
demonstrated on this record. There is nothing in this record from which we can determine
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that Maurice Wade, had he been subpoenaed, would have testified that he, not Wade, was the
person arrested for OMVI. For all we know, Maurice Wade, had he been subpoenaed, would
have testified that he was not the driver of the car, and that he was not the person arrested,
thereby contradicting, rather than corroborating, Wade’s defense.
{¶ 14} Likewise, there is nothing in this record from which we can determine that
Maurice Wade’s physical characteristics, had evidence of them been introduced at trial, would
have been helpful to Wade’s defense. Again, for all we know, Maurice Wade’s physical
characteristics might have shown him to be nothing like his brother in appearance, thereby
undermining Wade’s theory that he was the victim of a misidentification.
{¶ 15} In a direct appeal, claims of ineffective assistance of counsel, like other claims
of error, must be demonstrated in the record. State v. Smith (1985), 17 Ohio St.3d 98, 100.
In this case, in order to find that Wade’s trial counsel was ineffective, and that counsel’s
ineffectiveness was prejudicial to Wade’s defense, would require us to speculate concerning
what the evidence would have proven, had counsel been able to present it. To so speculate
would be contrary to the presumption that a licensed attorney is competent. Strickland v.
Washington (1984), 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d. 674. Vaugh v.
Maxwell (1965), 2 Ohio St.2d 299, 301.
{¶ 16} Wade’s claims that his trial counsel was constitutionally ineffective cannot be
demonstrated on this record. Before he can fault counsel for having failed to use particular
ammunition in the trial, he must first show that the ammunition existed.
{¶ 17} Wade’s sole assignment of error is overruled.
III
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{¶ 18} Wade’s sole assignment of error having been overruled, the judgment of the
trial court is Affirmed.
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DONOVAN and KLINE, JJ., concur.
(Hon. Roger L. Kline, Fourth District Court of Appeals, sitting by assignment of the Chief
Justice of the Supreme Court of Ohio).
Copies mailed to:
Joe Cloud
Daniel E. Brinkman
Hon. Cynthia M. Heck