[Cite as State v. Conley, 2013-Ohio-3347.]


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

STATE OF OHIO                                         C.A. No.     26704

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
MICHAEL D. CONLEY                                     BARBERTON MUNICIPAL COURT
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE Nos. 10CRB1918A
                                                                 10CRB1918B

                                 DECISION AND JOURNAL ENTRY

Dated: July 31, 2013



        HENSAL, Judge.

        {¶1}     Michael D. Conley appeals his conviction for disorderly conduct in the Barberton

Municipal Court. For the following reasons, this Court reverses.

                                                 I.

        {¶2}     Mr. Conley, a Summit County sheriff’s deputy, was charged with two counts of

simple assault arising out of an incident that he was involved in while on-duty. Following a trial

to the bench, a municipal court judge found him not guilty of assault, but guilty of disorderly

conduct, which he determined was a lesser-included offense of assault. The court also found

that, since the offenses occurred in the presence of a law enforcement officer, they were

misdemeanors of the fourth degree. On appeal, this Court reversed, concluding that disorderly

conduct in the presence of a law enforcement officer is not a lesser-included offense of simple

assault. We remanded the case for the municipal court to determine whether Mr. Conley was

guilty of some other lesser-included offense of assault. On remand, the court found Mr. Conley
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guilty of two counts of disorderly conduct without any enhancing factors, and ordered him to pay

a fine. Mr. Conley has appealed, assigning four errors.

                                               II.

                                 ASSIGNMENT OF ERROR I

       DEPUTY CONLEY’S CONVICTIONS MUST BE REVERSED BECAUSE
       THE TRIAL COURT ERRED BY FINDING DEPUTY CONLEY GUILTY OF
       MINOR MISDEMEANOR DISORDERLY CONDUCT SINCE MINOR
       MISDEMEANOR DISORDERLY CONDUCT IS NOT A LESSER INCLUDED
       OFFENSE OF ASSAULT, OHIO REV. CODE § 2903.13(A).

       {¶3}   Mr. Conley argues that a charge of disorderly conduct under Revised Code

Section 2917.11(A) is not a lesser-included offense of simple assault under Section 2903.13(A).

We agree.

       {¶4}    In order to prove assault under Section 2903.13(A), the State had to establish

beyond a reasonable doubt that Mr. Conley “knowingly cause[d] or attempt[ed] to cause physical

harm to another * * *.” In order to prove disorderly conduct under Section 2917.11(A), it had to

show that he “recklessly cause[d] inconvenience, annoyance, or alarm to another * * *.” In State

v. Alston, 9th Dist. Lorain No. 98CA007166, 2000 WL 727542, (June 7, 2000), this Court

explained that, “[s]ince it is possible to knowingly cause or attempt to cause physical harm to

another without causing inconvenience, annoyance or alarm to another,” the three-prong test that

the Supreme Court of Ohio has set out for determining whether an offense is a lesser-included

offense of another offense “is not met.” Id. at *5; see State v. Blasdell, 155 Ohio App.3d 423,

2003-Ohio-6392, ¶ 21 (7th Dist.), quoting State v. Schaefer, 2d Dist. Greene No. 99 CA 88, 2000

WL 492094, *3 (Apr. 28, 2000) (“[A] victim might be wholly unaware of an attempt to cause

physical harm where, for example, the perpetrator throws an object at the victim, who is not

looking at the perpetrator, but misses his target, and thus the victim suffers no inconvenience,
                                                 3


annoyance, or alarm,”). We, therefore, held that the trial court did not err when it refused to give

the jury an instruction on disorderly conduct because it is not a lesser-included offense of assault.

Alston at *5; see also State v. Gates, 9th Dist. Summit No. 20257, 2001 WL 324393, *3 (Apr. 4,

2001) (following Alston).

       {¶5}    The State argues that the Supreme Court of Ohio’s decision in City of Shaker Hts.

v. Mosely, 113 Ohio St.3d 329, 2007-Ohio-2072, controls the outcome of this case, but it is

distinguishable. The question in Mosely was whether minor misdemeanor disorderly conduct is

a lesser-included offense of domestic violence. Id. at syllabus. Although a charge of domestic

violence under Revised Code Section 2919.25(A) requires many of the same elements as a

charge of assault under Section 2903.13(A), Mosely involved Section 2919.25(C), which

requires substantially different elements than assault. In Mosely, the Supreme Court specifically

distinguished Schaefer and Blasdell, noting that those cases involved Section 2919.25(A), not

Section 2919.25(C). Id. at ¶ 17. The Supreme Court noted that, under Section 2919.25(C), the

victim must “believe” that the offender is going to cause him or her imminent physical harm. Id.

Accordingly, because a victim under Section 2919.25(C) must be aware of the offender’s

conduct, the throw-from-behind-that-misses-its-target hypothetical provided in Blasdell and

Schaefer does not apply.

       {¶6}    The State has not persuaded this Court to overrule Alston.           Accordingly, in

keeping with our precedent, we conclude that the trial court incorrectly determined that

disorderly conduct is a lesser-included offense of assault. Mr. Conley’s first assignment of error

is sustained. Consequently, his remaining assignments of error are moot, and they are overruled

on that basis. App. R. 12(A)(1)(c).
                                                 4


                                                III.

       {¶7}    As we held in Alston, disorderly conduct is not a lesser-included offense of simple

assault. The judgment of the Barberton Municipal Court is reversed.

                                                                               Judgment reversed,
                                                                              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 to Appellee.




                                                       JENNIFER HENSAL
                                                       FOR THE COURT




CARR, J.
CONCURS.

MOORE, P. J.
CONCURS IN JUDGMENT ONLY.
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APPEARANCES:

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

JENNIFER L. FITZSIMMONS, Chief Assistant Prosecutor, for Appellee.
