State v. BreidenbachState v. Breidenbach
Adam J. Baker, Athens, Ohio, for Appellant.
Patrick J. Lang, Athens City Law Director, and Lisa A. Eliason, Chief Athens City Prosecutor, Athens, Ohio, for Appellee.
Kline, J.:
{¶1} Fredric S. Breidenbach (hereinafter “Breidenbach“) appeals the judgment of the Athens County Municipal Court. After a bench trial on Breidenbach‘s assault charge, the trial court convicted him of the lesser included offense of disorderly conduct. On appeal, Breidenbach contends that disorderly conduct is not a lesser included offense of assault. For that reason, Breidenbach argues that his disorderly-conduct conviction is improper. We disagree. This court has repeatedly held that disorderly conduct is a lesser included offense of assault, and Breidenbach has not persuaded us that our prior decisions are in error. Therefore, we find that the trial court acted properly. Breidenbach also contends that his disorderly-conduct conviction is against1 the manifest weight of the evidence. Because there is substantial evidence upon which
I.
{¶2} Breidenbach is a partner in a corporation that leases residential property. As part of his duties, Breidenbach collects rental payments from the corporation‘s various tenants. Melissa and Dennis McCartney (individually, “Melissa” and “Dennis“; collectively, the “McCartneys“) had leased a trailer home from Breidenbach‘s corporation. As of August 12, 2009, Breidenbach had not received the August rental payment from the McCartneys. So that afternoon, Breidenbach visited the McCartneys to discuss the situation. Breidenbach arrived at the McCartneys’ trailer at approximately 4:00 p.m., and Melissa answered the door. As they stood on the porch, Breidenbach told her that he had not received that month‘s rent. Melissa countered that she had mailed the rent check on August 3, 2009. To prove it, Melissa asked Breidenbach if he would like to see her check register. Breidenbach replied that, yes, he would.
{¶3} Melissa went back inside the trailer and told Dennis what was happening. After some discussion, they called their lawyer for advice. The McCartneys’ lawyer suggested writing a new check for the August rent and giving that check to Breidenbach.
{¶5} It is undisputed that Melissa suffers from various wrist injuries. And according to Melissa, Breidenbach swung his hand at her injured wrist. Furthermore, as the following testimony demonstrates, Breidenbach was aware of Melissa‘s wrist injuries.
{¶6} “Q: Were, were you aware that Mrs. McCartney had swelling in her, uh, surgery on her right wrist?
{¶7} “A: Uh, yes, I was. When, when they first moved in and were, uh, signing the lease, and you have to initial every page. And, uh, by the time she got done signing, there‘s, I don‘t know, there‘s twelve or fifteen page[s] of initialing, she was almost in tears it hurt so much.” Transcript at 130.
{¶8} Breidenbach testified in his own defense and offered a different version of events. He agreed that Melissa returned to the porch while holding something that looked like a check. However, Breidenbach denied knocking the check out of Melissa‘s hand. He also denied throwing the envelope that contained the eviction notice. Instead, Breidenbach claimed that he handed the envelope to Melissa.
{¶9} On August 28, 2009, Melissa filed an assault complaint against Breidenbach. The complaint alleges that Breidenbach violated
{¶10} After a bench trial, the trial court found Breidenbach guilty of the lesser included offense of disorderly conduct. As the trial court explained, “I do believe that you knocked the check out of her hand. I don‘t believe that you intended to hurt her * * * by doing so. [A]nd for that reason, I am going to find you guilty of the minor misdemeanor * * * disorderly conduct.” Transcript at 164.
{¶11} Breidenbach appeals and asserts the following assignments of error: I. “The trial court committe[d] reversible error by subjecting Defendant/Appellant to double jeopardy by finding Defendant/Appellant guilty of disorderly conduct as a lesser included offense of misdemeanor assault.” And, II. “The trial court committed reversible error in finding Defendant/Appellant guilty of disorderly conduct with a required mens rea of recklessness when the manifest weight of the evidence showed that Defendant/Appellant was attempting to serve a three-day eviction notice to the tenants.”
II.
{¶12} In his first assignment of error, Breidenbach contends that disorderly conduct is not a lesser included offense of assault. For that reason, Breidenbach argues that his disorderly-conduct conviction is improper. We disagree and find that the trial court acted properly. As a result, we need not address Breidenbach‘s “double jeopardy” argument. See, generally, State v. Talty, 103 Ohio St.3d 177, 2004-Ohio-4888, at ¶9 (“It is well settled that [appellate courts] will not reach constitutional issues unless absolutely necessary.“).
{¶14} On numerous occasions, this court has found that disorderly conduct is a lesser included offense of assault. See State v. Rice, Ross App. No. 03CA2717, 2003-Ohio-6515, at ¶13; State v. Walton, Ross App. No. 03CA2716, 2003-Ohio-6514, at ¶13; State v. Ault (Aug. 31, 2000), Athens App. No. 99 CA 56; State v. Lemley (Nov. 27, 1996), Gallia App. No. 95CA24 (relying on State v. Roberts (1982), 7 Ohio App.3d 253); State v. Hughes (Sept. 26, 1985), Ross App. No. 1158 (relying on Roberts). We acknowledge that some other courts have reached a different conclusion. See, e.g., State v. Ocasio, Montgomery App. No. 19859, 2003-Ohio-6240, at ¶20 (concluding “that Disorderly Conduct is not a lesser included offense of Assault“); State v. Neal (Sept. 1, 1998), Franklin App. No. 97APA12-1676 (applying the Deem test and finding that “the
{¶15} Accordingly, we overrule Breidenbach‘s first assignment of error.
III.
{¶16} In his second assignment of error, Breidenbach argues that the state did not prove, beyond a reasonable doubt, that he (1) acted recklessly or (2) engaged in violent or turbulent behavior. For these reasons, Breidenbach contends that his disorderly-conduct conviction is against the manifest weight of the evidence.
{¶17} When determining whether a criminal conviction is against the manifest weight of the evidence, we “will not reverse a conviction where there is substantial evidence upon which the [trier of fact] could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt.” State v. Eskridge (1988), 38 Ohio St.3d 56, at paragraph two of the syllabus. See, also, State v. Smith, Pickaway App. No. 06CA7, 2007-Ohio-502, at ¶41. We “must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial granted.” Smith at ¶41, citing State v. Garrow (1995), 103 Ohio App.3d 368, 370-371; State v. Martin (1983), 20 Ohio App.3d 172, 175. But “[o]n the trial of a case, * * * the weight to be given the evidence and the credibility of the
{¶18} Under the disorderly conduct statute, “[n]o person shall recklessly cause inconvenience, annoyance, or alarm to another by * * * [e]ngaging in fighting, in threatening harm to persons or property, or in violent or turbulent behavior.”
{¶19} Here, we find that Breidenbach‘s conviction is not against the manifest weight of the evidence. First, there is substantial evidence that Breidenbach engaged in turbulent behavior. Both Melissa and Dennis testified that Breidenbach angrily knocked the check out of Melissa‘s hand and then threw an envelope at her. In our view, this qualifies as turbulent behavior. We recognize that Breidenbach testified to a different version of events. However, “the cautious exercise of the discretionary power of a court of appeals to find that a judgment is against the manifest weight of the evidence requires that substantial deference be extended to the factfinder‘s determinations of credibility. The decision whether, and to what extent, to credit the testimony of particular witnesses is within the peculiar competence of the factfinder, who has seen and heard the witness. * * * Accordingly, [t]his court will not substitute its judgment for
{¶20} Furthermore, there is substantial evidence that Breidenbach acted recklessly. Breidenbach testified that he was aware of Melissa‘s wrist injury, and Melissa testified that Breidenbach swung his hand towards her injured wrist. Based on this testimony, the trial court could have reasonably concluded that Breidenbach perversely disregarded the known risk that his conduct would cause Melissa to become alarmed. Certainly, any injured person would become alarmed by a sudden, aggressive movement directed towards his or her injury. And here, there is substantial evidence that Breidenbach swung his hand towards Melissa‘s wrist with heedless indifference to her potential alarm.
{¶21} For the foregoing reasons, we find that the trial court did not lose its way and create such a manifest miscarriage of justice that Breidenbach‘s conviction must be reversed and a new trial be granted. We find substantial evidence upon which the trial court could have reasonably concluded that all the elements of disorderly conduct were proven beyond a reasonable doubt.
{¶22} Accordingly, we overrule Breidenbach‘s second assignment of error. Having overruled both of his assignments of error, we affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Athens County Municipal Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Harsha, J. and Abele, J.: Concur in Judgment and Opinion.
For the Court
BY:_____________________________
Roger L. Kline, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.