[Cite as State v. Harris, 2018-Ohio-5292.]


                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                             BUTLER COUNTY




STATE OF OHIO,                                     :

        Appellant,                                 :     CASE NO. CA2018-02-037

                                                   :            OPINION
    - vs -                                                      12/28/2018
                                                   :

MAXWELL S. HARRIS,                                 :

        Appellee.                                  :



          CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                            Case No. CR2017-09-1550



Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellant

Holcomb & Hyde LLC, Richard A. Hyde, 332 High Street, Hamilton, Ohio 45011, for appellee

Repper-Pagan Law, Ltd., Christopher J. Pagan, 1501 First Avenue, Middletown, Ohio 45044,
amicus curiae



        RINGLAND, J.

        {¶ 1} Appellant, the state of Ohio, appeals the trial court's decision granting the

motion of appellee, Maxwell Harris, to dismiss an indictment based on principles of double

jeopardy. For the reasons detailed below, we reverse the trial court's decision and remand

this matter for further proceedings.

        {¶ 2} On February 25, 2017, Harris and the victim, Bradley Bartuch, were involved in
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a physical altercation outside of The Woods bar in Oxford, Ohio. Bartuch was seriously

injured and transported for medical treatment. On March 21, 2017, Harris was charged in

Butler County Area I Court with disorderly conduct in violation of R.C. 2917.11(A)(1), a minor

misdemeanor. Harris pled no contest to the disorderly conduct charge on May 25, 2017.

       {¶ 3} On September 20, 2017, Harris was indicted for felonious assault in violation of

R.C. 2903.11(A)(1), a second-degree felony. There is no dispute that the felony charge

relates to the same February 25, 2017 incident. According to the bill of particulars, the state

alleged that on February 25, 2017 at 10:15 p.m., Harris knowingly caused serious physical

injury to the victim by striking him in the face and head, causing facial fractures.

       {¶ 4} Harris moved to dismiss the indictment and argued that the felonious assault

charge was barred by double jeopardy. In his motion, Harris stated that, pursuant to the test

set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180 (1932), disorderly

conduct is a lesser included offense of felonious assault. Therefore, Harris maintained that

because he had already pled no contest to the disorderly conduct charge, principles of

double jeopardy prohibited the state from prosecuting him for felonious assault. Harris also

argued that because no additional facts had come to light since his no contest plea, a trial for

the felonious assault charge would amount to relitigation of the factual issues already

resolved by his no contest plea.

       {¶ 5} The trial court held an evidentiary hearing and subsequently granted Harris'

motion to dismiss after concluding that double jeopardy barred subsequent prosecution and

that a trial for felonious assault would require relitigation of the factual issues resolved by

Harris' no contest plea. The state now appeals, raising a single assignment of error for

review:

       {¶ 6} THE BUTLER COUNTY COURT OF COMMON PLEAS COMMITTED

REVERSIBLE ERROR WHEN IT GRANTED APPELLEE'S MOTION TO DISMISS BASED

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ON DOUBLE JEOPARDY.

       {¶ 7} In its sole assignment of error, the state argues the trial court erred when it

determined that disorderly conduct was a lesser included offense of felonious assault based

on application of the Blockburger test. The state also argues that the trial court erred in its

application of the holding in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189 (1970). We find

the state's argument is well-taken.

       {¶ 8} This court reviews a motion to dismiss an indictment on the grounds of double

jeopardy de novo because it is a pure question of law. State v. Mutter, 150 Ohio St.3d 429,

2017-Ohio-2928, ¶ 13.      The Ohio Supreme Court has adopted the test set forth in

Blockburger to determine whether an accused is successively prosecuted for the same

offense. Id. at ¶ 17; State v. Zima, 102 Ohio St.3d 61, 2004-Ohio-1807, ¶ 18. Under the

Blockburger test,

              [W]here the same act or transaction constitutes a violation of two
              distinct statutory provisions, the test to be applied to determine
              whether there are two offenses or only one, is whether each
              provision requires proof of a fact which the other does not. A
              single act may be an offense against two statutes, and if each
              statute requires proof of an additional fact which the other does
              not, an acquittal or conviction under either statute does not
              exempt the defendant from prosecution and punishment under
              the other.

       {¶ 9} Zima at ¶ 19, citing State v. Best, 42 Ohio St.2d 530 (1975), paragraph three of

the syllabus. "This test focuses upon the elements of the two statutory provisions, not upon

the evidence proffered in a given case." State v. Agostini, 12th Dist. Warren Nos. CA2016-

02-013 and CA2016-02-014, 2017-Ohio-4042, ¶ 33. "If application of the Blockburger test

'reveals that the offenses have identical statutory elements or that one is a lesser included

offense of the other, the subsequent prosecution is barred.'" Id., quoting State v. Tolbert, 60

Ohio St.3d 89 (1991), paragraph one of the syllabus.

       {¶ 10} After considering the issue, we find disorderly conduct is not a lesser included

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offense of felonious assault. See State v. Crayton, 8th Dist. Cuyahoga No. 55856, 1989

Ohio App. LEXIS 3239, *3; State v. Ocasio, 2d Dist. Montgomery No. 19859, 2003-Ohio-

6240, ¶ 20. Disorderly conduct under R.C. 2917.11(A)(1) requires proof that the defendant

recklessly caused "inconvenience, annoyance, or alarm" by "[e]ngaging in fighting, in

threatening harm to persons or property, or in violent or turbulent behavior." State v. Ozias,

12th Dist. Butler No. CA2003-04-102, 2003-Ohio-5431, ¶ 13. On the other hand, felonious

assault under R.C. 2903.11(A)(1) requires proof that the person knowingly caused serious

physical harm to another. State v. Dillingham, 12th Dist. Butler No. CA2011-03-043, 2011-

Ohio-6348, ¶ 12. Thus, felonious assault requires proof of a "knowingly" mental state and a

causation element of "serious physical harm." One may knowingly cause serious physical

harm to another without "[e]ngaging in fighting, in threatening harm to persons or property, or

in violent or turbulent behavior." See Ocasio at ¶ 13 (noting that physical harm may occur

when the victim is unaware of the attempt). As a result, we find the trial court erred by finding

that felonious assault and disorderly conduct constituted the same offense pursuant to the

Blockburger test.

       {¶ 11} Furthermore, we find the trial court erred by finding that a trial for the felonious

assault charge would improperly require relitigation of factual issues resolved in the

disorderly conduct charge held in the Butler County Area I Court. As previously noted, the

trial court relied on the U.S. Supreme Court's decision in Ashe v. Swenson. In that case, a

defendant was charged in connection with the robbery of six people at a poker party. Ashe,

397 U.S. at 437. The defendant was charged with robbing one of the players. Id. at 438.

The only contested issue at trial was whether the defendant was one of the robbers. Id. at

439. The jury concluded that the defendant was not, and he was acquitted. Id. The state

subsequently tried the defendant for the robbery of another person at the poker party. Id.

The defendant was found guilty in the second trial. Id. at 440. The U.S. Supreme Court

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reversed the defendant's conviction and found that the state was constitutionally foreclosed

from relitigating that issue in another trial. Id. at paragraph two of the syllabus.

       {¶ 12} However, the U.S. Supreme Court recently addressed the Ashe decision in

Currier v. Virginia, ___U.S.___, 138 S.Ct. 2144 (2018) and stated that "Ashe forbids a

second trial only if to secure a conviction the prosecution must prevail on an issue the jury

necessarily resolved in the defendant’s favor in the first trial." Id. at 2150. In essence, Ashe

will seldomly bar a subsequent prosecution exception in circumstances where "'it would have

been irrational for the jury' in the first trial to acquit without finding in the defendant's favor on

a fact essential to a conviction in the second." Id. at 2150, quoting Yeager v. United States,

557 U.S. 110, 127, 129 S. Ct. 2360 (2009) (Kennedy, J., concurring). The Court continued

by noting that under Blockburger, courts apply the same double jeopardy test they did at the

founding. Id. at 2153. "To prevent a second trial on a new charge, the defendant must show

an identity of statutory elements between the two charges against him; it’s not enough that 'a

substantial overlap [exists] in the proof offered to establish the crimes.'" Id., quoting Iannelli

v. United States, 420 U.S. 770, 785, 95 S. Ct. 1284 (1975), fn. 17. The focus in double

jeopardy jurisprudence "remains on the practical identity of offenses, and the only available

remedy is the traditional double jeopardy bar against the retrial of the same offense – not a

bar against the relitigation of issues or evidence." Id. at 2153-2154.

       {¶ 13} In this case, Harris pled no contest to disorderly conduct in the Butler County

Area I Court; thus, he did not prevail on an issue that would implicate the holding in Ashe.

Moreover, as noted above, disorderly conduct is not a lesser included offense of felonious

assault. Therefore, we find the trial court erred by dismissing the indictment charging Harris

with felonious assault. The state's sole assignment of error is sustained.

       {¶ 14} Judgment reversed and remanded.


       HENDRICKSON, P.J., and M. POWELL, J., concur.
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