[Cite as State v. Conley, 2012-Ohio-4249.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                         C.A. No.     25839

        Appellee
                                                      APPEAL FROM JUDGMENT
        v.                                            ENTERED IN THE
                                                      BARBERTON MUNICIPAL COURT
MICHAEL D. CONLEY                                     COUNTY OF SUMMIT, OHIO
                                                      CASE Nos. 10 CRB 1918A
        Appellant                                                10 CRB 1918B

                                 DECISION AND JOURNAL ENTRY

Dated: September 19, 2012



        MOORE, Judge.

        {¶1}     Appellant, Michael Conley, appeals his conviction for disorderly conduct by the

Barberton Municipal Court. This Court affirms in part and reverses in part.

                                                  I

        {¶2}     Deputy Michael Conley responded to a dispatch describing a fight in progress in

Coventry Township. As he drove around the area, a car crashed into the side of his cruiser,

disabling both vehicles.        During the events that followed, Conley used force against the

occupants of the car. The driver and one of the passengers later complained that Conley kicked

them multiple times. After an internal investigation, Conley was charged with two counts of

assault. The trial court found him not guilty of assault, but guilty of disorderly conduct in

violation of R.C. 2917.11(A) and R.C. 2917.11(E)(3)(c), which provides that disorderly conduct

is a fourth-degree misdemeanor when committed in the presence of a law enforcement officer.
                                                  2


For each offense, the trial court sentenced Conley to thirty days in jail and fined him $250.

Conley appealed.

                                                 II

                                  ASSIGNMENT OF ERROR I

         [CONLEY’S] CONVICTION MUST BE REVERSED BECAUSE THE
         TRIAL COURT ERRED BY FINDING [HIM] GUILTY OF FOURTH-
         DEGREE MISDEMEANOR DISORDERLY CONDUCT, OHIO REV.
         CODE § 2917.11(A), SINCE FOURTH-DEGREE MISDEMEANOR
         DISORDERLY CONDUCT IS NOT A LESSER INCLUDED OFFENSE OF
         ASSAULT, OHIO REV. CODE § 2903.13(A).

         {¶3}   In his first assignment of error, Conley argues that the trial court erred by finding

him guilty of disorderly conduct in the presence of a law enforcement officer, which is a fourth-

degree misdemeanor. Specifically, Conley argues that the elements of disorderly conduct, when

enhanced under R.C. 2917.11(E)(3)(c), do not correspond with the elements of assault and, as a

result, disorderly conduct is not a lesser included offense of assault. The State has conceded this

error.

         {¶4}   When a court considers whether one offense is a lesser included offense of

another, it must consider three factors: (1) whether the penalty of one offense is greater than the

other, (2) whether the greater offense includes an element that need not be proved with respect to

the latter, and (3) “whether the greater offense as statutorily defined cannot be committed

without the lesser offense as statutorily defined also being committed.” State v. Evans, 122 Ohio

St.3d 381, 2009-Ohio-2974, paragraph two of the syllabus. Lesser included offenses do not have

to be separately charged in an indictment because “the indictment or count necessarily and

simultaneously charges the defendant with lesser included offenses as well.” State v. Lytle, 49

Ohio St.3d 154, 157 (1990). Thus, a trial court may find insufficient evidence of a charged

offense, yet ultimately convict the defendant of a lesser included offense without offending the
                                                 3


concept of due process. See Evans at ¶ 4, 33 (In a bench trial, the trial court did not err by

granting the defendant’s motion for acquittal with respect to the charged offense, but finding him

guilty of a lesser included offense.).

       {¶5}    Errors regarding lesser included offenses are challenged on appeal in two ways.

Most commonly, a defendant challenges the trial court’s failure to instruct a jury about lesser

included offenses.    In a smaller number of cases, as in this case, the defendant has been

convicted of an offense, but argues that it was not actually a lesser included offense of what was

charged. In the latter scenario, when a trial court incorrectly concludes that one offense is a

lesser included offense of another, reversible error results. See e.g. State v. Deanda, 3d Dist. No.

13-10-23, 2012-Ohio-408, ¶ 8; State v. Munday, 9th Dist. No. 2082-M, 1992 WL 209370, *2

(Aug. 26, 1992).

       {¶6}    In this case, the State concedes that it was error for the trial court to find Conley

guilty of disorderly conduct in the presence of a law enforcement officer. We agree, and

conclude that the appropriate result is to return the matter to the trial court to proceed from the

point at which the error happened. See generally State v. Filiaggi, 86 Ohio St.3d 230, 240

(1999), citing Montgomery Cty. Commrs. v. Carey, 1 Ohio St. 463 (1853), paragraph one of the

syllabus, and State ex rel. Stevenson v. Murray, 69 Ohio St.2d 112, 113 (1982). Rather than

entering judgment finding Conley guilty of minor misdemeanor disorderly conduct, as the State

urges us to do, we remand this matter so that the trial court can determine whether Conley is

guilty of a lesser included offense of assault. Conley’s first assignment of error is sustained.
                                                 4


                                 ASSIGNMENT OF ERROR II

         [CONLEY’S] CONVICTION MUST BE REVERSED BECAUSE THE
         TRIAL COURT ERRED IN DENYING [HIS] OHIO CRIMINAL RULE 29
         MOTION FOR ACQUITTAL AT EITHER THE CLOSE OF THE
         STATE’S EVIDENCE OR THE CLOSE OF ALL EVIDENCE, BASED ON
         THE PROSECUTION’S FAILURE TO PROVE [HE] COMMITTED THE
         CRIME OF ASSAULT BEYOND A REASONABLE DOUBT.

         {¶7}   In his second assignment of error, Conley argued that because neither of the

victims testified that he was injured by Conley’s actions, the State failed to present sufficient

evidence of assault.

         {¶8}   As this Court has noted in the past, challenges to the sufficiency of the evidence

presented at trial are rarely moot. See e.g. State v. Vanni, 182 Ohio App.3d 505, 2009-Ohio-

2295, ¶ 14 (9th Dist.). See also State v. Bedford, 184 Ohio App.3d 588, 2009-Ohio-3972, ¶ 16-

20 (9th Dist.) (Whitmore, J., concurring). This case is distinguishable, however, because Conley

challenges the sufficiency of the evidence with respect to the assault charge of which he was

acquitted rather than the disorderly conduct charge of which he was allegedly erroneously

convicted. His assignment of error provides the roadmap for our review and guides our analysis.

See generally State v. Brown, 9th Dist. No. 23637, 2008-Ohio-2670, ¶ 24. Because Conley was

acquitted of the assault charge, he cannot be retried for assault, and we need not address

sufficiency in that respect. With respect to lesser included offenses, and in light of our resolution

of Conley’s first assignment of error, the matter is remanded to the trial court. Thus, it would be

premature to address sufficiency at this time. See e.g. State v. Britton, 181 Ohio App.3d 415,

2009-Ohio-1282, ¶ 59-60 (2d Dist.) (noting the trial court’s inherent authority to find a defendant

guilty of lesser included offenses in the course of a bench trial and remanding). Given the

procedural posture of this case, we therefore decline to address Conley’s second assignment of

error.
                                               5


                               ASSIGNMENT OF ERROR III

       [CONLEY’S] CONVICTION MUST BE REVERSED BECAUSE THE
       TRIAL COURT’S FINDING DEFENDANT GUILTY OF DISORDERLY
       CONDUCT, OHIO REV. CODE § 2917.11(A), IS CONTRARY TO THE
       MANIFEST WEIGHT OF THE EVIDENCE.

                               ASSIGNMENT OF ERROR IV

       [CONLEY’S] CONVICTION MUST BE REVERSED BECAUSE THE
       TRIAL COURT ERRED BY FINDING [HIM] GUILTY OF FOURTH-
       DEGREE MISDEMEANOR DISORDERLY CONDUCT, OHIO REV.
       CODE § 2917.11(A), WITH AGGRAVATING CIRCUMSTANCES SET
       FORTH IN OHIO REV. CODE § 2917.11(E)(3)(C), SINCE SUBSECTION
       (E)(3)(C) IS NOT APPLICABLE IN A PROSECUTION AGAINST A LAW
       ENFORCEMENT OFFICER IN PERFORMANCE OF HIS OR HER
       OFFICIAL DUTIES.

                               ASSIGNMENT OF ERROR V

       [CONLEY’S] CONVICTION MUST BE REVERSED BECAUSE THE
       TRIAL COURT ERRED BY FINDING [HIM] GUILTY OF FOURTH-
       DEGREE MISDEMEANOR DISORDERLY CONDUCT, OHIO REV.
       CODE § 2917.11(A), AS SUCH FINDING IS CONTRARY TO PUBLIC
       POLICY SINCE A LAW ENFORCEMENT OFFICER EFFECTUATING
       AN ARREST CANNOT BE FOUND GUILTY OF RECKLESSLY
       CAUSING “INCONVENIENCE, ANNOYANCE, OR ALARM” IN THE
       PERFORMANCE OF HIS OR HER OFFICIAL DUTIES.

       {¶9}   In light of our resolution of Conley’s first assignment of error, his third, fourth,

and fifth assignments of error are moot. See App.R. 12(A)(1)(c).

                               ASSIGNMENT OF ERROR VI

       [CONLEY’S] CONVICTION MUST BE REVERSED BECAUSE THE
       TRIAL COURT ERRED BY FAILING TO DISMISS THE CHARGES
       AGAINST DEFENDANT DUE TO A CONFLICT OF INTEREST THAT
       AROSE FROM THE CITY OF BARBERTON PROSECUTOR’S FAILURE
       TO RECUSE HERSELF FROM THIS MATTER PRIOR TO BRINGING
       CHARGES AGAINST DEPUTY CONLEY AND PRIOR TO THE
       ASSIGNMENT OF A SPECIAL PROSECUTOR.
                                                    6


       {¶10} Conley’s final assignment of error argues that the trial court erred by denying his

motion to dismiss the charges against him. According to Conley, the case against him was

tainted from its inception by a conflict of interest with the prosecuting attorney.

       {¶11} Conley’s argument is misplaced for several reasons.              The record does not

demonstrate the existence of a conflict of interest on the part of the Barberton prosecutor. In his

motion to dismiss, Conley relied on the deduction that because a special prosecutor was

appointed, a conflict of interest must have precipitated that decision. A special prosecutor may

be appointed, however, “whenever * * * the public interest requires it[.]” R.C. 2941.63. The

facts underlying the appointment of the special prosecutor are not in the record, and the

appointment itself does not establish the extent of any conflict that may have existed. Even

assuming that a conflict of interest did exist, the record demonstrates that a special prosecutor

had assumed responsibility for the case as early as November 24, 2010, approximately two

months before trial and before the Barberton prosecutor filed any pleadings in the case.

According to the special prosecutor, she conducted her own review of the case and determined

that it should proceed. Any possible taint, therefore, was removed by her appointment. Conley’s

sixth assignment of error is overruled.

                                                 III

       {¶12} Conley’s first assignment of error is sustained. His second assignment of error is

premature, and his sixth assignment of error is overruled. Conley’s third, fourth, and fifth

assignments of error are moot. The judgment of the Barberton Municipal Court is affirmed in

part and reversed in part, and this matter is remanded for proceedings consistent with our

resolution of Conley’s first assignment of error.
                                                 7


                                                                        Judgment affirmed in part,
                                                                                 reversed in part,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Barberton

Municipal Court, County of Summit, State of Ohio, to carry this judgment into execution. A

certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed equally to both parties.




                                                     CARLA MOORE
                                                     FOR THE COURT




DICKINSON, J.
CONCURS.

CARR, P.J.
CONCURRING.

       {¶13} I concur with the conclusion reached by the majority, but write separately to

explain what I believe should happen on remand in light of the procedural posture of this case.
                                                 8


        {¶14} The State conceded that it was error for the trial court to find Conley guilty of

disorderly conduct in the presence of a law enforcement officer. The State asked this Court to

find Conley guilty of minor misdemeanor disorderly conduct and remand for resentencing.

Conley argued that this was also not a lesser included offense and, therefore, this Court should

not find him guilty of it.

        {¶15} Both Conley and the State asked this Court to make decisions that should be made

by the trial court in the first instance. Upon remand, the trial court should first decide whether

there is an appropriate lesser included offense to consider. Here, the trial court has already found

that Conley is not guilty of assault, a first degree misdemeanor. After deciding that he was not

guilty of a higher degree offense, the trial court continued to consider lesser degree offenses,

moving down in degree until finding an offense that it decided was a lesser included offense and

for which the State presented sufficient evidence.

        {¶16} By attempting to find Conley guilty of a fourth degree misdemeanor, it must be

presumed the trial court determined that there were no second, third, or fourth degree

misdemeanor offenses that were appropriate for conviction. On remand, therefore, the trial court

will be limited to considering minor misdemeanor offenses. If the trial court identifies a proper

lesser included offense, it must evaluate the evidence presented at trial to determine whether

Conley is guilty of that offense.


APPEARANCES:

THOMAS M. HANCULAK, DANIEL A. POWELL, and MARK V. GUIDETTI, Attorneys at
Law, for Appellant.

JENNIFER L. FITZSIMMONS, Appointed Special Prosecutor, for Appellee.
