2006 Ohio 1293 | Ohio Ct. App. | 2006
{¶ 2} Plaintiff-Appellee is the City of Uhrichsville.
{¶ 4} On October 25, 2004, a Complaint was filed charging Appellant with one count of Assault, in violation of R.C.
{¶ 5} On October 26, 2004, Appellant was arraigned and entered a plea of not guilty to said charge.
{¶ 6} On January 7, 2005, this matter was tried before a magistrate. At said trial, the court heard testimony from five witnesses for the City, which included the victim, both of Appellant's sons, the responding police officer and an independent eye witness. Appellant presented no witnesses.
{¶ 7} The Magistrate's Decision was filed January 25, 2005, finding Appellant not guilty of the charge of assault but finding that Appellant was guilty of minor misdemeanor disorderly conduct.
{¶ 8} On February 8, 2005, Appellant filed an Objection to the Magistrate's Decision and a Motion for a Copy of Transcript.
{¶ 9} On February 8, 2005, the court granted the motion for a copy of the transcript.
{¶ 10} On June 1, 2005, the court, having received the transcript, granted each party ten days to file written arguments with regard to Appellant's objections to the Magistrate's Decision.
{¶ 11} On June 13, 2005, Appellant filed a written argument in support of his Objection to Magistrate's Decision arguing that disorderly conduct is not a lesser included offense of assault.
{¶ 12} On June 16, 2005, the trial court filed a Judgment Entry adopting the Magistrate's Decision of January 25, 2005.
{¶ 13} It is from this conviction and sentence that Appellant now appeals, assigning the following sole error for review:
{¶ 16} In State v. Deem (1988),
{¶ 17} An offense may be a lesser included offense of another if (i) the offense carries a lesser penalty than the other; (ii) the greater offense cannot, as statutorily defined, ever be committed without the lesser offense, as statutorily defined, also being committed; and (iii) some element of the greater offense is not required to prove the commission of the lesser offense.
{¶ 18} R.C. §
{¶ 19} R.C. §
{¶ 20} "A) No person shall recklessly cause inconvenience, annoyance, or alarm to another, by doing any of the following:
{¶ 21} "(1) Engaging in fighting, in threatening harm to persons or property, or in violent or turbulent behavior.
{¶ 22} "(2) Making unreasonable noise or an offensively coarse utterance, gesture, or display, or communicating unwarranted and grossly abusive language to any person;
{¶ 23} "(3) Insulting, taunting, or challenging another, under circumstances in which such conduct is likely to provoke a violent response;
{¶ 24} "* * *
{¶ 25} "(5) Creating a condition that is physically offensive to persons or that presents a risk of physical harm to persons or property, by any act that serves no lawful and reasonable purpose of the offender."
{¶ 26} A person acts "recklessly" when, "with heedless indifference to the consequences, he perversely disregards a known risk that his conduct is likely to cause a certain result * * *." R.C. §
{¶ 27} The Tenth Appellate District has held that disorderly conduct is not a lesser included offense of assault. State v.Neal (Sept. 1, 1998), Franklin App. No. 97APA12-1676, unreported. It reasoned:
{¶ 28} "[A]ll the pertinent theories for disorderly conduct require proof that an offender caused "inconvenience, annoyance or alarm." * * * Annoyance and alarm are each mental states and, therefore, are not part of the concept of physical harm set forth in the assault statute * * *.
{¶ 29} "Inconvenience is a totally distinct concept and also not a part of the concept of physical harm. Inconvenience can have physical elements, but also can be purely mental in its scope. Thus, applying the Deem standard * * *, the inconvenience element does not qualify disorderly conduct as a lesser included offense of assault."
{¶ 30} Based on the foregoing, we find Appellant's sole assignment of error well-taken and hereby sustain same.
{¶ 31} The decision of the Tuscarawas County Court is reversed.
By: Boggins, J. Hoffman, P.J. and Edwards, J. concur.