[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                :
                                                  :
                                               ...........

                                               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
                                                                                            2


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
                                                                                         3


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
                                                                                            4


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
                                                                                      5


       {¶ 18} Wade’s sole assignment of error having been overruled, the judgment of the

trial court is Affirmed.

                                               .............

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
