STATE OF OHIO v. JUSTIN PEEL
APPEAL NOS. C-200431, C-200432, C-200433
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
February 9, 2022
2022-Ohio-362
WINKLER, Judge.
Criminal Appeal From: Hamilton County Municipal Court; TRIAL NO. 20CRB-12299; Judgment Appealed From Is: Affirmed
Matthew T. Ernst, for Defendant-Appellant.
OPINION.
{1} Defendant-appellant Justin Peel appeals from three convictions for disorderly conduct under
{2} Peel was originally charged with five counts of aggravated menacing under
{3} The record shows that on June 21, 2020, Janae Walker was preparing for guests to arrive to celebrate Father‘s Day. She was inside her townhouse when she saw Peel, a security guard at her apartment complex, putting a sticker on her car. She went out to investigate and discovered that Peel had put a warning sticker on her car for parking in a handicapped parking spot without displaying the proper placard.
{4} Janae presented Peel with the handicapped placard, which was in the car hidden under some papers. He told her that he did not care and “smashed the sticker into [her car] window further.” Then he took a picture of it, and told Janae that she would “have to take it up with somebody else.” At one point, a family member pointed at Peel and stated that he was going to get his gun, although he never went back inside.
{5} After she heard a commotion, 74-year-old Bea came out of the townhouse into the parking lot. Peel then put his hand on his Taser. She walked over to him and stated, “This is Sunday. We are supposed to have unity.” Peel then pointed his gun directly at Bea‘s chest. Janae pushed Bea to the side and stood in front of her.
{6} Mary, Janae‘s mother, walked out onto the porch. Her grandchildren were on the porch with her. She saw Peel point his gun at Bea. He yelled at everyone
{7} The trial court found that the state had failed to prove all of the elements of aggravated menacing, but it found Peel guilty of three counts of disorderly conduct under
{8} In his sole assignment of error, Peel contends that the trial court erred in finding him guilty of disorderly conduct. He argues that disorderly conduct is not a lesser-included offense of aggravated menacing. This assignment of error is not well taken.
{9} An offense may be a lesser-included offense of another if (1) the offense carries a lesser penalty than the other; (2) the greater offense, cannot, as statutorily defined, be committed without the lesser offense also being committed; and (3) some element of the greater offense is not required to prove the commission of the lesser offense. State v. Deem, 40 Ohio St.3d 205, 533 N.E.2d 294 (1988), paragraph three of the syllabus, as clarified in State v. Evans, 122 Ohio St.3d 381, 2009-Ohio-2974, 911 N.E.2d 889; State v. Baker, 1st Dist. Hamilton Nos. C-120470 and C-120471, 2013-Ohio-2507, ¶ 9.
{10} Peel was originally charged with aggravated menacing under
{11} He was convicted of disorderly conduct under
{12} While this court has not specifically ruled on the issue of whether disorderly conduct under
{13} First, disorderly conduct is a minor misdemeanor and carries a lesser penalty than aggravated menacing, which is a misdemeanor of the first degree. Second, aggravated menacing contains the element of threatening physical harm, which cannot be committed without at the same time causing annoyance or alarm to the victim. Third, the threat of serious physical harm is required for aggravated menacing but not to prove the commission of disorderly conduct under
{14} Peel relies on State v. Lampela, 2016-Ohio-8007, 67 N.E.3d 836 (6th Dist.), in which the court found that disorderly conduct was not a lesser-included offense of aggravated menacing. But in that case, the defendant was convicted of violating
{15} Following the lead of the other appellate districts, we hold that disorderly conduct under
Judgment affirmed.
BERGERON, P.J., and CROUSE, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.