2003 Ohio 6240 | Ohio Ct. App. | 2003
{¶ 2} Defendant-Appellee, Luzcelenia Ocasio, was charged by indictment with Assault in violation of R.C.
{¶ 3} The Assault charge was tried to a jury. At the close of the evidence, Defendant requested a lesser included offense instruction on Disorderly Conduct in violation of R.C.
{¶ 4} The State objected to Defendant's request, citing decisions of other appellate districts which have held that Disorderly Conduct is not a lesser-included offense of Assault. The trial court overruled the State's objection and, reluctantly following the decision of this court in State v. Parker,
{¶ 5} The State sought leave of this court pursuant to R.C.
{¶ 6} "Disorderly conduct is not a lesser included offense of assault."
{¶ 7} The Double Jeopardy Clause of the Fifth Amendment to the Constitution of the United States provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." The right is likewise guaranteed by Article
{¶ 8} The Federal prohibition against double jeopardy is binding on the states. Benton v. Maryland (1969),
{¶ 9} Greater and lesser offenses are the same for purposes of the double jeopardy prohibition against multiple punishments when the lesser offense does not require proof of an element different from that required for proof of the greater offense. Brown v. Ohio (1977),
{¶ 10} With respect to whether the offense of Disorderly Conduct of which Defendant was convicted is a lesser included offense of the Assault offense with which he was charged, there is no dispute that the first and third prongs of the Deem test are satisfied. The dispute concerns the second prong: whether the greater offense of Assault cannot, as statutorily defined, ever be committed without the lesser offense of Disorderly Conduct, as statutorily defined, also being committed. Id. If the greater offense can be committed without necessarily committing the lesser offense, it is not a lesser included offense of the greater.
{¶ 11} When making the comparison Deem requires, the offenses must be compared "as statutorily defined and not with respect to specific factual scenarios." State v. Barnes (2002),
{¶ 12} In Parker, a defendant charged with Assault, R.C.
{¶ 13} Our observation in Parker was erroneous with respect to the lesser included offense proposition concerned. As it happens, we came to a correct decision two years before in State v. Schaefer (April 28, 2000), Greene App. No. 99-CA-88. There a defendant charged with Domestic Violence, R.C.
{¶ 14} Defendant-Appellant argues that our rationale in Schaefer is flawed. He points out that, taken to its logical conclusion, it would permit defendant who is charged with Attempted Assault to obtain a lesser included offense instruction on disorderly conduct, but not a defendant who is charged with an Assault that resulted in actual physical harm.
{¶ 15} Schaefer's rationale might result in that anomaly, but on the facts of that case it did not. There, the defendant had "flipped" his wife in the face with the back of his hand That was sufficient to show physical harm, and we held that in that circumstance Disorderly Conduct is not a lesser included offense of Domestic Violence, noting that the same outcome would be reached had Assault been charged.
{¶ 16} We decided Schaefer in 2000. The Supreme Court of Ohio rendered its decision in Barnes in 2002. Barnes cautions us that the test the second prong of Deem prescribes compares greater and lesser offenses "as statutorily defined and not with respect to specific factual scenarios." Id., at p. 26. That limitation applies to the particular evidence in a case. Kidder. Reasonably, it necessarily also applies to the kind of hypothesized evidentiary facts on which we based the distinction we found in Schaefer, when the victim of an attempted Assault is unaware of it.
{¶ 17} Barnes compels a narrower comparison, one which looks to the statutory elements of the two offenses as the General Assembly enacted them. If every element of the lesser offense appears in the greater, as both are defined, the lesser offense is "included" within the greater for purposes of the second prong of Deem. If the lesser offense includes another or a different element, the lesser offense is not included within the greater.
{¶ 18} The Tenth District Court of Appeals applied this narrower form of comparison when it decided State v. N. (Sept. 1, 1998), Franklin App. No. 97APA12-1676. The court reasoned that because the "inconvenience, annoyance, or alarm" that Disorderly Conduct involves are, in whole or in part, mental states, they are conceptually different from the physical harm element of the offense of Assault. Therefore, Disorderly Conduct is not a lesser included offense of a greater offense such as Domestic Violence that includes a physical harm element.
{¶ 19} We cited and discussed N in our opinion in Schaefer, but didn't adopt it expressly. The Supreme Court's subsequent holding inBarnes convinces us that the Tenth District's rationale was correct because it is more in accord with Barnes than our rationale in Schaefer. Therefore, we reject any contrary implication in Schaefer, though we need not reverse the holding in Schaefer because it reached a correct result. However, we necessarily overrule our holding in Parker, to the extent that it is in conflict with our holding here.
{¶ 20} We conclude that Disorderly Conduct is not a lesser included offense of Assault, whether completed or attempted, irrespective of any similarity in the aggravating circumstances that each can involve. That was apparently a factor here. The victim of the Assault was a peace officer, which per R.C.
FAIN, P.J. and YOUNG, J., concur.