State v. Reynolds

Jun 26, 1985
C-840749
Versions:25 Ohio App. 3d 59
495 N.E.2d 971
25 Ohio B. 227
1985 Ohio App. LEXIS 10207
Per Curiam.

This cause 1 came on to be heard upon an appeal from the Hamilton County Municipal Court.

In this appeal, the defendant-appellant, Michael Reynolds, seeks to overturn a conviction for disorderly conduct that became a matter of record in the municipal court pursuant to a judge’s finding of guilt following a trial without the intervention of a jury. He argues in the only assignment of error given to us for review that he could not, in law, have been found guilty of disorderly conduct in its elevated version as a misdemeanor of the fourth degree because the additional element of proof required to increase the degree of the offense from that of a minor misdemeanor precluded the conclusion that it was a lesser included offense of assault, which separately formed the basis of the charge set forth in the complaint.

Reynolds’s argument is, to a certain degree, well-taken. The element necessary under R.C. 2917.11(E) to prove a case for the fourth-degree misdemeanor of disorderly conduct, viz., the persistence of proscribed behavior after a reasonable warning or request to desist, possesses no significance in the separately codified definition of assault, 2 and renders inescapable the conclusion that an act of assault can be committed without also committing the elevated version of disorderly conduct. It must be said, therefore, by application of the standard articulated in State v. Wilkins (1980), 64 Ohio St. 2d 382 [18 O.O.3d 528], that disorderly conduct as a fourth-degree misdemeanor under R.C. 2917.11(E) is not a lesser included offense of assault under R.C. 2903.13.

This does not, however, end our inquiry. Although the record before us indicates that Reynolds was given a sentence consistent with that for a fourth-degree misdemeanor, 3 the judge presiding below found specifically at the conclusion of the trial only that he had engaged in fighting, which is generally *61 considered to be a minor-misdemeanor form of disorderly conduct under R.C. 2917.11(A)(1). There was no additional finding stated explicitly with respect to the aggravating element under R.C. 2917.11(E), and we find from our own review of the evidence that the element of persistence was not proven sufficiently. The evidence does, however, fully justify the judge’s finding of a violation of R.C. 2917.11(A)(1). 4 Because the offense of disorderly conduct is, in this respect as a minor misdemeanor, a lesser included offense of assault, State v. Roberts (1982), 7 Ohio App. 3d 253, we must conclude that Reynolds was properly found guilty of disorderly conduct, but improperly sentenced for the elevated version of the offense. The assignment of error given to us for review is, accordingly, sustained, but only in part.

Ordinarily in a case such as this involving an error in sentencing, we would vacate only that part of the judgment involving the imposition of sentence and allow the rest to stand pending a remand for appropriate corrective action. Although there may be some dispute here concerning the propriety of such a course in view of certain imprecisions in the disposition below, we must assume from what is before us that there has been a valid finding of guilt for a minor-misdemeanor offense. Accordingly, we hereby vacate only the sentence imposed on the defendant-appellant and remand this cause to the Hamilton County Municipal Court for the limited purpose of resentencing in accordance with the applicable statutory standards for a minor misdemeanor.

Sentence vacated and cause remanded.

SHANNON, P.J., Doan and Hilde-brandt, JJ., concur.

Notes

1

We have decided sua sponte to remove this case from our accelerated calendar for the purpose of addressing the merits of the appeal in this decision.

2

The offense of assault appears in R.C. 2903.13 in the following manner:

“(A) No person shall knowingly cause or attempt to cause physical harm to another.
“(B) No person shall recklessly cause serious physical harm to another.
“(C) Whoever violates this section is guilty of assault, a misdemeanor of the first degree.”
3

The sentence included thirty days of incarceration, twenty-seven of which were suspended, a fine of $100, and one year of probation. Although it was within the guidelines of R.C. 2929.21(B) and (C) for a fourth-degree misdemeanor, it was certainly inappropriate for a minor misdemeanor under R.C. 2929.21(D).

4

There is evidence in the record to demonstrate that the complainant, one Linda Egner, intervened in an altercation between Reynolds and a third party, by her account in the role of peacemaker. As she and Reynolds struggled for control of a beer bottle, Reynolds either shoved her or punched her with force sufficient to knock her to the ground and to produce a laceration on her chin.