State v. Ocasio

Annotate this Case

Download PDF

[Cite as State v. Ocasio, 2003-Ohio-6240.] IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO STATE OF OHIO : Plaintiff-Appellant : vs. : C.A. CASE NO. 19859 T.C. CASE NO. 02CR4496 LUZCELENIA OCASIO : (Criminal Appeal from Common Pleas Court) : Defendant-Appellee . . . . . . . . . O P I N I O N Rendered on the 21st day of November, 2003. . . . . . . . . . Mathias H. Heck, Jr., Pros. Attorney; Carley J. Ingram, Asst. Pros. Attorney, P.O. Box 972, Dayton, Ohio 45422, Atty. Reg. No. 0020084 Attorney for Plaintiff-Appellant Arvin S. Miller, Asst. Public Defender, 117 S. Main Street, 4th Floor, Dayton, Ohio 45422, Atty. Reg. No. 0016355 Attorney for Defendant-Appellee . . . . . . . . . GRADY, J. {¶1} In this appeal we are asked to determine whether Disorderly Conduct is a lesser included offense of Assault. We hold that it is not. {¶2} Defendant-Appellee, Luzcelenia Ocasio, was charged by indictment (C)(3). with Assault in violation of R.C. 2903.13(A) and Division (A) of that section states: No person shall knowingly cause or attempt to cause physical harm to another or another s unborn. R.C. 2903.13(C) provides that Assault is a misdemeanor of the first degree, except when 2 conduct the proscribed also violates, inter alia, division (C)(3) of R.C. 2903.13. That division states: If the victim of the offense is a peace officer, a firefighter, or a person performing emergency medical service, while in the performance of their official duties, assault is a felony of the fourth degree. {¶3} The Assault charge was tried to a jury. At the close of the evidence, Defendant requested a lesser included offense instruction on Disorderly R.C.2917.11(A)(1), which Conduct prohibits in violation causing of inconvenience, annoyance, or alarm to another by [e]ngaging in fighting, in threatening to persons or behavior, turbulent harm property, coupled with or division in violent (E)(3)(c), or which elevates the offense from a minor misdemeanor to a fourth degree misdemeanor when the victim is a law enforcement officer while on duty. {¶4} The objected of decisions State other appellate to Defendant s districts which request, have citing held that Disorderly Conduct is not a lesser-included offense of Assault. The trial court overruled the State s objection and, reluctantly following the decision of this court in State v. Parker, 149 Ohio App. 3d 681, requested. Assault 2002-Ohio-5536, the instruction Defendant The jury returned a verdict of not guilty on the charge and Disorderly Conduct. {¶5} gave guilty on the lesser included offense of Defendant was sentenced according to law. The State sought leave of this court pursuant to R.C. 2945.67(A) to appeal from the trial court s ruling on the lesser 3 We granted leave, and the matter included offense instruction. is now before us on the following proposition of law submitted by the State: {¶6} DISORDERLY CONDUCT IS NOT A LESSER INCLUDED OFFENSE OF ASSAULT. {¶7} The Double Jeopardy Clause of the Fifth Amendment to the Constitution of the United States provides that no person shall be subject for the same jeopardy of life or limb. offense to be twice put in The right is likewise guaranteed by Article I, Section 10 of the Ohio Constitution, which states: No person shall be twice put in jeopardy for the same offense. {¶8} The Federal binding on the states. 89 S.Ct. 2056, distinct aspects. 23 prohibition protects for against double jeopardy is Benton v. Maryland (1969), 395 U.S. 784, L.Ed.2d 707. The prohibition has three It protects against a second prosecution for the same offense after acquittal. prosecution against the same multiple offense It protects against the same after punishments conviction. for the same And it offense. North Carolina v. Pearce (1969), 395 U.S. 711, 717, 89 S.Ct. 2089, 23 L.Ed.2d 656. {¶9} Greater and lesser offenses are the same for purposes of the double jeopardy prohibition against multiple punishments when the lesser offense does not require proof of an element different from that required for proof of the greater offense. Brown v. Ohio (1977), 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187. Three requirements for its application of the lesser included offense rule exist: (1) the offense at issue must carry a lesser penalty than the offense charged; (2) the 4 greater offense cannot, as statutorily defined, ever be committed without the lesser offense as statutorily defined, also being committed; and (3) one or more elements of the greater offense are not required to prove the lesser offense. State v. Deem (1988), 40 Ohio St.3d 205. {¶10} With respect to whether the offense of Disorderly Conduct of which Defendant was convicted is a lesser included offense of the Assault offense with which he was charged, there is no dispute that the first and third prongs of the Deem test are satisfied. The dispute concerns the second prong: whether the greater offense of Assault cannot, as statutorily defined, ever be committed without the lesser offense of Disorderly Conduct, as statutorily defined, also being committed. the greater committing offense the can lesser be committed offense, it is not without a Id. If necessarily lesser included offense of the greater. {¶11} When making the comparison Deem requires, the offenses must be compared as statutorily defined and not with respect to specific factual scenarios. St.3d 21, 26. State v. Barnes (2002), 94 Ohio Therefore, the evidence presented in a particular case is irrelevant to the determination of whether an offense, as statutorily offense. defined, is necessarily included in a greater State v. Kidder (1987), 32 Ohio St.3d. 279, 282. {¶12} In Parker, 2903.13(A), 2917.11(A)(1), was as a defendant convicted a lesser of charged with Disorderly included offense. Assault, R.C. Conduct, R.C We reversed, 5 finding that the element in R.C. 2917.11(E)(3)(a) that increases a Disorderly Conduct violation from a minor misdemeanor to a fourth degree misdemeanor, in that case persisting in disorderly conduct after being warned, involved an element that an Assault offense does not involve. wasn t satisfied. We Therefore, the second prong of Deem observed, however, that absent that aggravating circumstance the minor misdemeanor Disorderly Conduct offense that R.C. 2917.11(A) defines is a lesser included offense of Assault, and we remanded to enter a conviction for Disorderly Conduct as a minor misdemeanor. {¶13} Our observation in Parker was erroneous with respect to the lesser included offense proposition concerned. As it happens, we came to a correct decision two years before in State v. Schaefer (April 28, 2000), Greene App. No. 99-CA-88. defendant charged with Domestic Violence, R.C. There a 2919.25, was convicted of Disorderly Conduct as a lesser included offense. Domestic Violence involves a physical harm element. Conduct does not. Disorderly Therefore, we held that because an attempt to commit Domestic Violence can exist without engaging in Disorderly Conduct when, hypothetically, a victim is unaware of a failed attempt to commit physical harm, the second prong of Deem isn t satisfied and Disorderly Conduct cannot be a lesser included offense of Domestic Violence. More to the point here, we observed that, at least for lesser included offense purposes, Assault bears a like relation to Disorderly Conduct because both Domestic Violence and Assault contain a physical harm element that, at least with respect to an attempt to commit physical harm, might permit inconvenience, a annoyance, violation or not alarm encompassed that Disorderly 6 by the Conduct involves when the victim is unaware of the attempt. {¶14} Defendant-Appellant Schaefer is flawed. conclusion, it would argues that our rationale in He points out that, taken to its logical permit defendant who is charged with Attempted Assault to obtain a lesser included offense instruction on disorderly conduct, but not a defendant who is charged with an Assault that resulted in actual physical harm. {¶15} Schaefer s rationale might result in that anomaly, but on the facts of that case it did not. There, the defendant had flipped his wife in the face with the back of his hand. That was sufficient to show physical harm, and we held that in that circumstance Disorderly Conduct is not a lesser included offense of Domestic Violence, noting that the same outcome would be reached had Assault been charged. {¶16} We decided Schaefer in 2000. The Supreme Court of Ohio rendered its decision in Barnes in 2002. Barnes cautions us that the test the second prong of Deem prescribes compares greater and lesser offenses as statutorily defined and not with respect to specific factual scenarios. applies to Reasonably, the particular it necessarily Id., at p. 26. evidence also in applies a That limitation case. to the Kidder. kind of hypothesized evidentiary facts on which we based the distinction we found in Schaefer, when the victim of an attempted Assault is unaware of it. {¶17} Barnes compels a narrower comparison, one which looks 7 to the statutory elements of the two offenses as the General Assembly enacted them. If every element of the lesser offense appears in the greater, as both are defined, the lesser offense is included within the greater for purposes of the second prong of Deem. If the lesser offense includes another or a different element, the lesser offense is not included within the greater. {¶18} The Tenth District Court of Appeals applied this narrower form of comparison when it decided State v. N. (Sept. 1, 1998), Franklin App. No. 97APA12-1676. The court reasoned that because the inconvenience, annoyance, or alarm that Disorderly Conduct involves are, in whole or in part, mental states, they are conceptually different from the physical harm element of the offense of Assault. Therefore, Disorderly Conduct is not a lesser included offense of a greater offense such as Domestic Violence that includes a physical harm element. {¶19} We cited and discussed N in our opinion in Schaefer, but didn t adopt it expressly. holding in Barnes convinces The Supreme Court s subsequent us that the Tenth District s rationale was correct because it is more in accord with Barnes than our rationale in Schaefer. Therefore, we reject any contrary implication in Schaefer, though we need not reverse the holding in Schaefer because it reached a correct result. However, we necessarily overrule our holding in Parker, to the extent that it is in conflict with our holding here. {¶20} We conclude that Disorderly Conduct is not a lesser included offense of Assault, whether completed or attempted, irrespective of any similarity in the aggravating circumstances that each can involve. 8 That was apparently a factor here. victim was of the Assault a peace officer, which per The R.C. 2903.13(C)(3) enhances the Assault Offense from a first degree misdemeanor to a fourth degree felony. The offense was then necessarily committed in the presence of any law enforcement officer, which per R.C. 2917.11(E)(3)(c), enhances a Disorderly Conduct offense involving fighting from a minor misdemeanor to a misdemeanor of the fourth degree. Any factual congruence between those aggravating circumstances is insufficient to create a lesser included offense relationship offenses. FAIN, P.J. and YOUNG, J., concur. Copies mailed to: Carley J. Ingram, Esq. Arvin S. Miller, Esq. Hon. Richard S. Dodge between those two

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.