[Cite as State v. Wade, 2022-Ohio-1006.]

IN THE COURT OF APPEALS OF OHIO

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY

STATE OF OHIO,

Plaintiff-Appellee,

- v -

EUGENE M. WADE, III,

Defendant-Appellant.

CASE NO. 2021-L-049

Civil Appeal from the

Court of Common Pleas

Trial Court No. 2018 CR 001008

O P I N I O N

Decided: March 28, 2022

Judgment: Affirmed

Charles E. Coulson, Lake County Prosecutor, and Jennifer A. McGee, Assistant 

Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, 

Painesville, OH 44077 (For Plaintiff-Appellee).

Susan J. Moran, 1382 West 9th Street, Suite 410, Cleveland, OH 44113 (For DefendantAppellant).

MATT LYNCH, J.

{¶1} Defendant-appellant, Eugene M. Wade, III, appeals from the judgment of 

the Lake County Court of Common Pleas, denying his petition for postconviction relief. 

For the following reasons, we affirm the decision of the lower court.

{¶2} On October 1, 2018, the Lake County Grand Jury issued an indictment 

against Wade for the following: two counts of Having Weapons While Under Disability, 

felonies of the third degree, in violation of R.C. 2923.13(A)(2) and (3); two counts of

Carrying Concealed Weapons, felonies of the fourth degree, in violation of R.C. 
2

Case No. 2021-L-049

2923.12(A)(2); Illegal Possession of Firearm in Liquor Permit Premises, a felony of the 

fifth degree in violation of R.C. 2923.121(A); two counts of Discharge of Firearm on or 

Near Prohibited Premises, felonies of the first and third degree, in violation of R.C. 

2923.162(A)(3); four counts of Felonious Assault, felonies of the second degree, in 

violation of R.C. 2903.11(A)(1) and (2); and three counts of Attempted Murder, felonies

of the first degree, in violation of R.C. 2923.02(A) and 2903.02(A). Accompanying firearm 

specifications were also included in the indictment.

{¶3} A jury trial was held on April 16-19, 2019. On April 16, the State sought and 

the court granted an arrest warrant for a witness, Christina Askew, due to her failure to 

appear pursuant to a subpoena.

{¶4} At trial, Ray'Mond Askew testified that he, his sister Christina Askew, and 

their cousin Janelle Dowdy, went to a bar, the Lake Dine and Dance, to pick up a food 

order. While they were there, Wade entered the bar with his friend, Tyler Kelly. Ray’Mond 

testified that Wade gave him a “weird look,” did not speak with him or Christina, and spoke 

briefly with Dowdy, whom he had dated. Ray’Mond, Christina, and Dowdy left the bar 

and went to their car. Ray’Mond testified that he observed Wade standing at the door of 

the bar as they were driving away and Ray’Mond, who was in the back seat, ducked down 

because he “didn’t know what was going to happen.” He did not observe anyone else in 

the parking lot at that time. As they were turning onto the street, Ray’Mond heard two 

gunshots and Dowdy screamed “I’m shot.” Dowdy subsequently received medical 

treatment for a gunshot wound to her leg.

{¶5} Wade’s friend, Kelly, testified that she went with Wade to the bar on the 

night of the shooting. While at the bar, she used the restroom, and when she returned, 
3

Case No. 2021-L-049

Wade and the other three were no longer present in the bar or the parking lot.

{¶6} 911 calls made at the time of the shooting were played, in which a female 

voice purporting to be Christina’s based on the context and circumstances, stated 

“Eugene Wade just shot my car up and he just shot my friend” at the Lake Dine and 

Dance. She identified that Dowdy was shot in the leg and that she saw “Eugene Wade * 

* * with [her] own two eyes, shoot at” the vehicle. A recording of a phone call that took 

place between Christina and her child’s father, who was incarcerated, around the time

she was leaving the bar, was also played. In that call, after conversation about other 

topics, Christina yelled “G [a nickname for Eugene] just shot my car up. * * * G just shot 

Janelle.”

{¶7} Video evidence was presented from over a dozen cameras at the bar on 

the night of the shooting. It showed the parties behaving consistently with Kelly’s and 

Ray’Mond’s testimony. The person identified as Wade in their testimony can be seen 

exiting the bar behind Christina, Ray’Mond, and Dowdy, standing in the doorway, chasing 

after the vehicle toward the road, where the shooting was alleged to have taken place, 

and then running from the property.

{¶8} Following the shooting, police discovered a bullet fragment in the road near 

the bar. A forensic analyst from the Lake County Crime Lab testified that the marks in 

the vehicle driven by Dowdy were consistent with bullet holes and that she discovered a 

fragment consistent with a copper jacket of a bullet in the vehicle.

{¶9} At the close of the State’s case, the defense moved for acquittal pursuant 

to Civ.R. 29, which was denied. The defense then rested without presenting witnesses 

and renewed the Rule 29 motion, which was denied. Wade was convicted of all counts 
4

Case No. 2021-L-049

as charged in the indictment except for the three counts of Attempted Murder for which 

he was acquitted.

{¶10} A sentencing hearing was held on June 3, 2019. The court ordered Wade 

to serve an aggregate prison sentence of twenty years in prison. This sentence was 

memorialized in a June 17, 2019 Judgment Entry of Sentence. 

{¶11} Wade appealed to this court, raising issues relating to the admission of 

certain unauthenticated recordings and hearsay statements, and the weight and 

sufficiency of the evidence supporting the convictions. This court affirmed Wade’s 

convictions. State v. Wade, 11th Dist. Lake No. 2019-L-065, 2020-Ohio-2894. He 

subsequently filed a motion for reopening arguing ineffectiveness of appellate counsel for 

failure to raise issues involving sentencing, merger, and failure of the State to present 

sufficient evidence regarding the 911 caller’s identity. The motion was denied.

{¶12} On August 21, 2020, Wade filed a Petition for Post-Conviction Relief, 

arguing that he received ineffective assistance of counsel due to the failure to use 

exculpatory video of Dowdy accusing a shooter other than Wade, failure to secure her 

attendance at trial, and failure to cross-examine witnesses about her statements. It also 

argued the State engaged in prosecutorial misconduct when it made false statements 

about the video and that Dowdy did not identify another suspect. The State filed a 

response in which it argued that the petition was barred by the doctrine of res judicata 

and, alternatively, that the record did not demonstrate ineffective assistance of counsel 

nor that the State failed to disclose evidence. 

{¶13} On April 2, 2021, the trial court issued a Judgment Entry denying Wade’s 

Petition for Post-Conviction Relief. It found that the doctrine of res judicata applied 
5

Case No. 2021-L-049

because he failed to previously raise the issue of ineffective assistance of counsel in his 

direct appeal as well as in his application for reopening and that the issues raised relied 

on information within the trial court record at the time of the appeal.

{¶14} Wade timely appeals and raises the following assignments of error:

{¶15} “[1.] Appellant was denied effective assistance of counsel, due process, 

and the right to a fair trial, when his counsel failed to utilize the exculpatory statements of 

the victim, failed to secure her attendance at trial with a subpoena; failed to 

examine/cross-examine witnesses regarding exculpatory evidence and failed to correct 

the State’s misstatement of the evidence to the jury and trial court, as guaranteed by the 

Sixth Amendment to the United States Constitution and Article I, Section 10, Ohio 

Constitution.

{¶16} “[2.] Appellant was denied due process and a fair and impartial trial as 

guaranteed by the 5th, 6th, and 14th amendments of the U.S. Constitution and Article I § 

16 of the Ohio Constitution based on prosecutorial misconduct.”

{¶17} In his first assignment of error, Wade argues that trial counsel was 

ineffective by failing to utilize exculpatory statements of the victim, Janelle Dowdy; failing

to secure her attendance at trial with a subpoena; and failing to examine witnesses 

regarding this issue. He contends that the trial court erred in finding these arguments 

barred by res judicata since the video of Dowdy’s statements was not part of the record 

and this argument could not have been raised on direct appeal. The State argues that 

“these claims could have been raised during trial proceedings or through new counsel 

upon direct appeal without resort to evidence outside the record as the evidence 

Appellant proffered in his petition was fully discussed on the record during Appellant’s 
6

Case No. 2021-L-049

trial.”

{¶18} “Any person who has been convicted of a criminal offense * * * and who 

claims that there was such a denial or infringement of the person’s rights as to render the 

judgment void or voidable under the Ohio Constitution or the Constitution of the United 

States” may “file a petition in the court that imposed sentence, stating the grounds for 

relief relied upon, and asking the court to vacate or set aside the judgment or sentence 

or to grant other appropriate relief.” R.C. 2953.21(A)(1)(a)(i). Generally, an abuse of 

discretion standard of review is applied to a trial court’s decision to dismiss a petition 

for postconviction relief without a hearing. State v. Parks, 11th Dist. Lake No. 2021-L021, 2021-Ohio-2883, ¶ 10. “However, if a trial court denies a petition on legal grounds, 

e.g., by application of the doctrine of res judicata, this court’s review is de novo.” State v.

Davies, 11th Dist. Ashtabula No. 2017-A-0013, 2017-Ohio-7961, ¶ 12.

{¶19} “Where ineffective assistance of counsel is alleged in a petition for

postconviction relief, the defendant, in order to secure a hearing on his petition, must 

proffer evidence which, if believed, would establish not only that his trial counsel had 

substantially violated at least one of a defense attorney’s essential duties to his client but 

also that said violation was prejudicial to the defendant.” State v. Cole, 2 Ohio St.3d 112,

114, 443 N.E.2d 169 (1982). 

{¶20} In the present matter, the trial court found that the petition was barred by 

the doctrine of res judicata because there was evidence in the record that would have 

allowed this issue to be raised in a direct appeal. “Under the doctrine of res judicata, a 

defendant cannot raise an issue in a postconviction petition if he or she raised or could

have raised the issue at the trial that resulted in that judgment of conviction or on an 
7

Case No. 2021-L-049

appeal from that judgment.” State v. Jackson, 141 Ohio St.3d 171, 2014-Ohio-3707, 23

N.E.3d 1023, ¶ 92; Cole at the syllabus (“[w]here defendant, represented by new counsel 

upon direct appeal, fails to raise therein the issue of competent trial counsel and said 

issue could fairly have been determined without resort to evidence dehors the record, res 

judicata is a proper basis for dismissing defendant’s petition for postconviction relief”).

{¶21} The subject of dispute here is whether there was evidence in the record that 

would have allowed this claim to be presented on direct appeal. As this court has 

observed, “[w]here a claim of ineffective assistance of counsel is based on evidence that 

is outside of the record, it is * * * properly pursued in a petition for post-conviction relief 

since such a claim is ‘impossible to resolve on direct appeal.’” (Citation omitted.) State

v. Hall, 11th Dist. Lake Nos. 2019-L-027 and 2019-L-031, 2019-Ohio-4000, ¶ 21. 

{¶22} The evidence in question is an interview conducted with Dowdy. In that 

interview, a video of which was made part of the record during the post-conviction stage, 

Dowdy stated that she was unaware who the shooter was, did not remember much about 

the shooting, and denied multiple times that Wade was the shooter. She identified that 

the shooter was wearing a black hoodie and pants. The video was not played for the jury 

at trial or presented as an exhibit. Discovery records filed with the court show that the 

State did provide to the defense the recording of the foregoing interview with Dowdy, as 

well as her initial interview. Further, at trial, defense counsel questioned Detective Hren 

whether he was aware that there was an identification of a suspect being “someone in a 

black hoodie.” He denied being aware of this. Following that testimony, counsel 

approached the bench and the prosecutor stated the following:

The question Mr. Deeb [defense counsel] just asked of Detective 

Hren, I believe, Mr. Deeb is referring to an interview of Janelle 
8

Case No. 2021-L-049

Dowdy, that was with Detective Moon at the Sheriff's Office, who is 

no longer with the Sheriff's Office, but who had previously been 

employed with the Sheriff’s Office. This was conducted on February 

15th * * * 2018[.] Your Honor, that is detailed in Detective Moon’s 

supplemental report that was provided to defense and in there 

Janelle Dowdy -- this is her second interview. She was initially 

interviewed at the hospital and then initially when she was 

interviewed she repeatedly identified Eugene Wade as the shooter. 

There was an allegation that she had been paid off and then she 

came in and she was saying it was somebody in a black hoodie and 

jeans. And she said that someone had told her -- now she explained 

that somebody told her that Eugene was the shooter because she 

was agitated in the car and she didn't know if it was him shooting.

So this person that Mr. Deeb asked the detective about as a suspect 

that was brought up with the black hoodie and jeans I think is the 

same person who she identified as Eugene Wade and I think that 

because the question was asked, introduced the possibility of that,

someone identified somebody else, that’s the same person identified 

as the Defendant. So I think that opens the door for me to ask 

Detective Hren.

The court responded that “Detective Hren didn’t even know about this at all” and “there is 

no evidence of that and this witness wouldn’t even know what you’re talking about.” No 

further action was taken.

{¶23} Ohio courts have held that, for a defendant “to avoid dismissal of the petition 

by operation of res judicata, the evidence supporting the claims in the petition must be 

competent, relevant, and material evidence outside the trial court record, and it must not 

be evidence that existed or was available for use at the time of the trial.” In re B.C.S., 4th

Dist. Washington No. 07CA60, 2008-Ohio-5771, ¶ 14; State v. Mills, 5th Dist. Tuscarawas 

No. 2008 AP 08 0051, 2009-Ohio-5654, ¶ 93 (“[e]vidence offered de hors the record must 

be more than evidence which was in existence and available to the appellant at the time 

of the trial and which could and should have been submitted at trial if the appellant wished 

to make use of it”). Similarly, in the present matter, the evidence in question was available
9

Case No. 2021-L-049

to Wade at the time of trial.

{¶24} Wade argues, however, that this issue could not have been reviewed by the 

appellate court on a direct appeal since the interview would not have been available to 

the court, having not been made part of the record. See State v. Martin, 2d Dist. 

Montgomery No. 27844, 2018-Ohio-3505, ¶ 13 (where a claim for postconviction relief

relies on statements made to police that “were not part of the record on direct appeal,” 

res judicata did not apply). 

{¶25} This issue could have been raised and reviewed on direct appeal. The 

statement of the prosecutor conveys that there is a separate video in which the victim 

gave a conflicting statement, indicating that there was an allegation the victim had been 

“paid” off and stated the shooter was “somebody in a black hoodie and jeans.” From the 

video, Wade appears to be wearing a jacket with lighter colored sleeves and no hood. 

Further, the prosecutor indicated that, in contrast with her prior repeated identification of 

Wade, Dowdy “now explained that somebody told her that Eugene was the shooter 

because she was agitated in the car and she didn't know if it was him shooting.” It is 

evident from this statement both that defense counsel was fully aware of the other 

interview and that appellate counsel reviewing this matter should have also been made 

so aware from a review of the record. 

{¶26} Wade emphasizes that a review on direct appeal could not have been 

properly conducted because the interview gives a more accurate picture of its content 

and whether further action should have been taken by defense counsel to have the video 

admitted and seek Dowdy to testify at trial. If we were to decide the case on the merits 

and presuming res judicata does not apply, we do not find that Wade can prevail on a 
10

Case No. 2021-L-049

claim of ineffective assistance of counsel.

{¶27} In order to succeed on such a claim, Wade must demonstrate both that 

counsel was ineffective and that this resulted in prejudice. Cole, 2 Ohio St.3d at 114, 443

N.E.2d 169. Where there is overwhelming evidence of a defendant’s guilt, prejudice does 

not result from trial counsel’s alleged ineffectiveness and reversal is not warranted. State 

v. Robinson, 10th Dist. Franklin No. 20AP-128, 2021-Ohio-3496, ¶ 54 (the appellate court 

determined, in light of the overwhelming evidence of a defendant’s guilt, that it need not 

consider trial counsel’s alleged ineffectiveness since no prejudice could result); see State 

v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, ¶ 175 (“there is no 

likelihood that Trimble was prejudiced by the mention of his prior conviction because of 

the overwhelming evidence establishing his guilt”). Here, the testimony of Ray’Mond

demonstrated that he saw Wade before the shooting and no one else was in the parking 

lot. The video showed Wade, who was identifiable from witness testimony of the events, 

exiting the club immediately after Christina, Ray’Mond and Dowdy, and running after their 

vehicle to the road, which is where testimony indicated the shooting took place. There is 

nothing in the video to show another person in the vicinity of the vehicle at the time of the 

shooting. The evidence indisputably shows Dowdy suffered a gunshot wound while in 

the vehicle. Multiple audio recordings of Christina’s phone calls to 911 and her child’s 

father were placed into evidence in which she identified Wade as the shooter several 

times. Significantly, when addressing Wade’s manifest weight challenge in the direct 

appeal, this court specifically held that “[t]he jurors in the matter sub judice were presented 

with overwhelming evidence from which they could reasonably conclude that Wade 

committed the charged crimes.” Wade, 2020-Ohio-2894, at ¶ 42.
11

Case No. 2021-L-049

{¶28} The first assignment of error is without merit.

{¶29} In his second assignment of error, Wade contends that the State 

misrepresented evidence and improperly argued at trial that Dowdy identified no other 

suspects when there was evidence to show that Dowdy had made a statement about 

another suspect. 

{¶30} To address allegations of prosecutorial misconduct, we “must determine (1) 

whether the prosecutor’s conduct was improper and (2) if so, whether it prejudicially 

affected [the defendant’s] substantial rights.” State v. LaMar, 95 Ohio St.3d 181, 2002-

Ohio-2128, 767 N.E.2d 166, ¶ 121. “[P]rosecutorial misconduct alone does not require a 

new trial.” State v. Hamad, 11th Dist. Trumbull No. 2017-T-0108, 2019-Ohio-2664, ¶ 123. 

“The conduct of a prosecuting attorney during trial cannot be made a ground of 

error unless the conduct deprives defendant of a fair trial.” State v. Apanovitch, 33 Ohio

St.3d 19, 24, 514 N.E.2d 394 (1987), citing State v. Maurer, 15 Ohio St.3d 239, 266, 473

N.E.2d 768 (1984). “[I]t must be clear beyond a reasonable doubt that, absent the 

prosecutor’s comments, the jury would have found defendant guilty.” Maurer at 267.

{¶31} Wade’s argument that the State’s alleged misrepresentation of the contents 

of Dowdy’s interview could not have been raised on direct appeal and subject to res 

judicata has merit. To determine whether the State’s characterization of the video was 

false, it is necessary to be able to review the video, which was not part of the appellate 

record in the direct appeal. While the lower court denied the post-conviction petition solely 

on the ground of res judicata, reversal is not warranted since there are no substantive 

grounds for relief on the merits of the claim and, thus, no post-conviction relief can be 

granted nor was a hearing necessary on Wade’s petition.
12

Case No. 2021-L-049

{¶32} Considering the merits of Wade’s claim, he argues that the prosecutor 

allowed testimony that was untrue and misrepresented evidence. It is accurate that “[a]

prosecutor has a duty to ensure that a criminal defendant receives a fair trial, which 

includes obligations to refrain from knowingly using perjured testimony and to correct 

testimony known to be false” and that, “[u]nder certain circumstances, a prosecutor’s 

failure to meet these obligations might constitute prosecutorial misconduct.” State ex rel.

Sands v. Coulson, 163 Ohio St.3d 275, 2021-Ohio-671, 169 N.E.3d 663, ¶ 8. Here, the 

prosecution did correctly state to the court that Dowdy had given conflicting testimony. 

As the State argues, it appears the prosecutor believed that Dowdy’s statement about the 

man in the black hoodie referred to Wade, given he was the only person who appeared 

from the video to be present at the time of the shooting. While he could have been clearer 

in describing that Dowdy had essentially recanted her accusation against Wade, the 

prosecutor brought this argument forward while contending that the questioning by the 

defense opened the door for other evidence and/or questions relating to Dowdy’s 

statements. The fact that the prosecutor characterized the evidence according to his

interpretation does not amount to misconduct. Further, the statement itself was included

in discovery, the defense had the chance to review it, and it could have advanced to the 

court and jury any relevant argument regarding this interview. The prosecution “allowing” 

Hren to give false testimony that he was unaware of the statement regarding the suspect 

in the black hoodie lacks merit as well since there is nothing in the record to indicate Hren 

gave false testimony. Of note, the trial court judge observed that Hren appeared to be 

unaware of the potential other suspect.

{¶33} Wade also argues that a Brady violation occurred. A Brady violation occurs 
13

Case No. 2021-L-049

when a prosecutor “(1) suppresses evidence (2) that is favorable to the defendant, when 

that evidence (3) is material to guilt or innocence.” (Citation omitted.) State v. Trimble, 

11th Dist. Trumbull No. 2015-P-0038, 2016-Ohio-1307, ¶ 26; Brady v. Maryland, 373 U.S.

83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). This argument lacks merit as there is 

simply nothing in the record to show that the State failed to disclose or suppressed any 

evidence.

{¶34} Further, even if there were validity to the claim of prosecutorial misconduct, 

it cannot be demonstrated that, absent the prosecutor’s actions here, Wade would not

have been found guilty. For the reasons discussed above, there was overwhelming 

evidence of his guilt that overcomes any potential prejudice. 

{¶35} The second assignment of error is without merit.

{¶36} For the foregoing reasons, the judgment of the Lake County Court of 

Common Pleas, denying Wade’s petition for postconviction relief, is affirmed. Costs to 

be taxed against appellant.

JOHN J. EKLUND, J., concurs,

THOMAS R. WRIGHT, P.J., concurs in judgment only.