State v. Cox, 2016 Ohio 3250

Ronald L. Cox (an Ohio State Highway Patrol sergeant) was recorded at a YMCA hallway confronting a woman (Jen Clair) who was videotaping him; he made insulting remarks and reached toward her phone, causing her to jerk back.
Clair reported being scared and the State charged Cox with menacing (R.C. 2903.22).
At bench trial, the court found Cox not guilty of menacing, concluding Clair’s testimony did not show she believed Cox would cause physical harm.
The prosecutor asked the court to consider disorderly conduct as a lesser-included offense; the court convicted Cox of disorderly conduct under R.C. 2917.11(A)(5) (creating a physically offensive condition or risk of physical harm by an act serving no lawful purpose).
Cox appealed, arguing (1) insufficient evidence for menacing, (2) that disorderly conduct (A)(5) is not a lesser-included offense of menacing, and (3) insufficient proof of disorderly conduct. The appellate court found the (A)(5) disorderly-conduct conviction improper and entered a final judgment of acquittal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency on menacing: whether evidence proved victim believed Cox would cause physical harm	State argued victim’s fear and the phone-grab supported menacing	Cox argued victim did not reasonably believe he would cause physical harm	Trial court acquitted on menacing for lack of proof; appellate court left that acquittal intact
Whether disorderly conduct (R.C. 2917.11(A)(5)) is a lesser-included offense of menacing (R.C. 2903.22(A))	State treated disorderly conduct (A)(5) as a proper lesser-included alternative	Cox argued (A)(5) is not a lesser-included offense of menacing under Deem test	Court held (A)(5) is not a lesser-included offense of menacing and sustained Cox’s challenge; conviction vacated
Sufficiency for disorderly conduct (A)(5) given trial evidence	State argued phone-grab and offensive conduct satisfied (A)(5) elements	Cox argued evidence was insufficient, and (A)(5) was improperly submitted	Court found ruling on (A)(5) moot after holding it is not a lesser-included offense and entered acquittal

State v. Deem, 40 Ohio St. 3d 205 (Deem test for lesser-included offenses) (1988) (sets three-prong test for lesser-included offenses)
State v. Kidder, 32 Ohio St. 3d 279 (addresses that statutory elements, not case facts, determine lesser-included analysis)
State v. Compton, 153 Ohio App. 3d 512 (discusses distinction between subjective belief of harm (menacing/domestic violence) and actual/risk-based requirement of R.C. 2917.11(A)(5)) (1st Dist.)