State v. Wade

• Decision Date: 05 November 2019
• Docket Number: CT2019-0008,No. CT2019-0007,CT2019-0007
• Citation: 147 N.E.3d 1237,2019 Ohio 4565
• Parties: STATE of Ohio, Plaintiff-Appellee v. Devon WADE, Defendant-Appellant
• Court: Ohio Court of Appeals

147 N.E.3d 1237

2019 Ohio 4565

STATE of Ohio, Plaintiff-Appellee

v.Devon WADE, Defendant-Appellant

No. CT2019-0007

CT2019-0008

Court of Appeals of Ohio, Fifth District, Muskingum County.

DATE OF JUDGMENT ENTRY: November 5, 2019

D. MICHAEL HADDOX, Prosecuting Attorney, BY: TAYLOR P. BENNINGTON, Assistant Prosecutor, 27 North Fifth St., Box 189, Zanesville, OH 43701, For Plaintiff-Appellee.

APRIL CAMPBELL, 545 Metro Place South, Suite 100, Dublin, OH 43017, For Defendant-Appellant.

JUDGES: Hon. W. Scott Gwin, P.J., Hon. William B. Hoffman, J., Hon. Patricia A. Delaney, J.

OPINION

Gwin, P.J.

{¶1} Defendant-appellant Devon Wade ["Wade"] appeals his convictions and sentences after a bench trial in the Muskingum County Court.

Facts and Procedural History

{¶2} On Friday, June 26, 2018, at approximately 7:00 a.m., Trooper Corey Campbell of the Ohio State Highway Patrol was dispatched to a crash of a commercial vehicle into a guardrail, on Interstate 70 in Muskingum County, Ohio. The interaction was captured by Trooper Campbell's cruiser dash cam and microphone. [State's Exhibit 44].

{¶3} Upon arrival, the trooper observed where the truck had traveled off the roadway into the berm coming to rest upon the guardrail. On the video, the hazard lights on the truck can be seen flashing. Trooper Campbell and his female trainee walked to the cab of the truck, knocked on the door, and received no response. He then walked around the truck, assessing its damage. The trooper observed that a large set of tire marks in the mud and dirt had been tracked up through the truck's path, where it had actually left the pavement all along the side to where the guardrail was on the berm. The trooper further saw scraping around the side of the guardrail and determined the truck had hit the guardrail.

{¶4} The trooper knocked on the cab door again and received no response. He saw that the truck was unlocked. He then opened the door, yelled for anyone inside. When Trooper Campbell looked in the back seat, he saw Wade passed out in the sleeping berth. The trooper testified that his first reaction was that it was a medical situation. He called for a squad approximately four minutes after his arrival on the scene. (State's Exhibit 44 at 7:23).

{¶5} Upon entering the truck, the trooper observed a bottle of Grey Goose vodka on the floorboard between the driver seat and the passenger seat, approximately four feet from Wade. There was approximately one inch of vodka remaining in the bottle. The trooper also noticed a needle kit in the cab of the truck. Later, after an inventory of the truck was concluded, the needle kit was determined to be a tattoo kit; however, the observation of needles in the cab raised additional concerns for the trooper that this was a possible medical emergency. The trooper checked for a pulse, made sure Wade was breathing, and made sure Narcan

was not necessary for the situation. The trooper was able to wake Wade, who was dazed and confused. Wade did not believe he had been in a crash, believed he was in Virginia, and could not recognize the officer as a state trooper.

{¶6} Wade was asked out of the truck and EMS arrived on scene. The trooper testified that he observed Wade to have constricted pupils, glassy eyes, and could smell alcoholic beverage odor about his breath. Trooper Campbell attempted to perform the HGN test. During the HGN test, Wade stared at the trooper in a daze and did not follow the pen back and forth, even though he was told several times to do so. The trooper testified the walk-and-turn test could not be performed due to safety concerns, as they were along the side of the interstate and because Wade did not have coordination or balance to perform anything alongside the busy roadway.

{¶7} After several minutes of confusion and argument, Wade eventually agreed to be treated by medical personnel. After he left in the ambulance, the trooper conducted the crash investigation on the scene and had the truck towed. As part of the crash investigation, the trooper described where Wade went off the roadway and where he struck the guardrail, until coming to a stop. He measured that the contact with the guardrail was 564 feet. Photographs were also taken showing damage to the guardrail, tracks where the truck had traveled off the pavement into dirt, striking the guardrail and the lines that traveled all the way down the berm from impact. A photograph was taken of the right front side of the cab, where the truck had met the guardrail, and another photograph was taken showing the metal scraping that was consistent with the damage to the guardrail going down the side of the cab.

{¶8} Trooper Campbell went to the hospital to speak with Wade. While the trooper was attempting to ask Wade questions, Trooper Campbell testified that Wade "rolls over from eating his crackers and drinking his water and curls up in a fetal position and goes to sleep on me." At that point, in time, Wade was not alert or able to walk on his own accord. Hospital staff then assisted the trooper with getting Wade to his patrol car by putting Wade in a wheelchair.

{¶9} Wade testified at trial that he was driving from New Jersey towards Illinois. T. at 47. Wade further testified that he pulled over because he was tired. Wade testified that he remembers putting out three red hazard markers after he pulled the truck off the roadway. T. at 49. Wade had no explanation as to why the markers are not evident in the trooper's video. T. at 49.

{¶10} Before sleeping, Wade testified, "I had some drink." T. at 50. He was sitting on the side of the bed area at the time. T. at 50-52. He claimed the bottle of vodka had fallen off the ledge and spilled most of the contents on the floor. T. at 53. Wade further testified that he had struck a deer one to two days before this incident and that is what caused the damage to his truck. T. at 53. Wade presented photographs that he testified had been taken before the incident in question showing the damage to the passenger side of the truck cab. T. at 54; 59-61.

{¶11} The trial court found Wade guilty of operating a commercial vehicle while having a measurable or detectable amount of alcohol or of a controlled substance in his blood, breath, or urine under R.C. 4506.15(A)(1) ; and a first-degree misdemeanor impaired while operating a commercial vehicle, R.C. 4506.15(A)(6). Case No. CRB1803809 . He was also convicted of another alcohol-related first-degree misdemeanor impaired while operating a vehicle, R.C. 4511.19(A)(1)(A) ; a minor misdemeanor open-container offense, for the Grey Goose bottle the trooper found in Wade's cab; and a minor misdemeanor failure to control, due to his truck scraping a guardrail. R.C. 4301.62 ; R.C. 4511.202. Case No. CRB1803867.

{¶12} For purposes of sentencing, the trial court found the OVI counts in Case No, CRB1803809 and Case No. CRB1803867 merged, and imposed a 60-day jail sentence on the OVI offense.

Assignments of Error

{¶13} Wade raises three Assignments of Error.

{¶14} "I. APPELLANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE APPELLANT'S TRIAL COUNSEL WAS DEFICIENT AT TRIAL, WITH RESULTING PREJUDICE.

{¶15} "II. BECAUSE THE STATE'S EVIDENCE WAS LEGALLY INSUFFICIENT, HIS CONVICTIONS REQUIRE REVERSAL.

{¶16} "III. THE EVIDENCE WEIGHED MANIFESTLY AGAINST CONVICTING WADE OF HIS FIRST-DEGREE MISDEMEANOR OFFENSES."

I.

{¶17} In his First Assignment of Error, Wade argues that his trial counsel was ineffective.

{¶18} The United States Supreme Court discussed the prejudice prong of the Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) test,

With respect to prejudice, a challenger must demonstrate "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, 104 S.Ct. 2052. It is not enough "to show that the errors had some conceivable effect on the outcome of the proceeding." Id., at 693, 104 S.Ct. 2052. Counsel's errors must be "so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id., at 687, 104 S.Ct. 2052.

"Surmounting Strickland' s high bar is never an easy task." Padilla v. Kentucky , 559 U.S. 356, 371, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284 (2010). An ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial, and so the Strickland standard must be applied with scrupulous care, lest "intrusive post-trial inquiry" threaten the integrity of the very adversary process the right to counsel is meant to serve. Strickland , 466 U.S. at 689–690, 104 S.Ct. 2052. Even under de novo review, the standard for judging counsel's representation is a most deferential one. Unlike a later reviewing court, the attorney observed the relevant proceedings, knew of materials outside the record, and interacted with the client, with opposing counsel, and with the judge. It is "all too tempting" to "second-guess counsel's assistance after conviction or adverse sentence." Id., at 689, 104 S.Ct. 2052 ; see alsoBell v. Cone , 535 U.S. 685, 702, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) ; Lockhart v. Fretwell , 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). The question is whether an attorney's representation amounted to incompetence under "prevailing professional norms," not whether it deviated from best practices or most common custom. Strickland , 466 U.S. at 690, 104 S.Ct. 2052.

Harrington v. Richter, 562 U.S. 86, 104-105, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011).

Failure to File a Motion to Suppress.

{¶19} Wade first argues that his trial counsel was ineffective because he did not file a motion to suppress the warrantless entry of the truck by Trooper Campbell and because he contends that there was no evidence that Wade was driving the truck.

{¶20} Trial counsel's failure to file a suppression motion does not per se constitute...