# State v. Williams > Ohio Court of Appeals · April 13, 1990 · 2 Ohio App. Unrep. 655 URL: https://www.frixlaw.com/law-library/cases/6707729 ## Case - **Full name:** State v. Williams - **Court:** Ohio Court of Appeals - **Decided:** April 13, 1990 - **Citations:** 2 Ohio App. Unrep. 655 - **Precedential status:** Published - **Opinion:** Concurrence by Ford - **Judges:** Christley, Ford, Mahoney - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6707729 ## Opinion text FORD, J. While I agree with the conclusion reached by the majority opinion that disorderly conduct is not a lesser included offense of attempted murder, I am impelled to provide further discussion as to the complicated legal analysis necessary to reach the majority's findings. As the majority notes, the test for determining whether one offense is a lesser included offense of another was set forth in Kidder, supra. To reiterate, this test states: "An offense may be a lesser included offense of another only if (i) the offense is a crime of lesser degree than the other, (ii) the offense of the greater degree cannot, as statutorily defined, ever be committed without the offense of the lesser degree, as statutorily defined, also being committed, and (iii) some element of the greater offense is not required to prove the commission of the lesser offense." (Citations omitted.) Kidder at paragraph one of the syllabus. Further, as the majority also notes, the question of whether a conviction of a lesser included offense prohibits prosecution of the greater offense was addressed by the United States Supreme Court in Brown, supra. In Brown, the petitioner was originally convicted for the crime of "joyriding." After serving his original sentence, petitioner was then indicted by another jurisdiction for grand theft, based on the same facts as the original prosecution. The court stated the subsequent charges against the petitioner were barred by the Double Jeopardy Clause since the petitioner had been previously convicted in a separate proceeding of joyriding, a lesser included offense of auto theft. The scenario present in Brown, where the charges filed against a defendant are presented in two separate indictments, was distinguished by the court from the factual setting of State v. Johnson (1984), U.S. 1224, in which the defendant is confronted with a single indictment containing multiple charges. The court in Johnson, supra, stated that a defendant's right to be free from double jeopardy is not violated when she/he pleads guilty to the lesser included offenses contained in a multiple count indictment and is then tried on the greater offenses. Consequently, the first analytical step a court must take, when confronted with the *657 argument that conviction of a lesser included offense bars a trial for the greater offense, is to determine whether the facts of the case in question fall into the Brown or the Johnson patterns. In the case sub judice, appellant was cited, originally, solely for disorderly conduct, pursuant to the Middlefield ordinance. The indictment for attempted aggravated murder came later and separately, thus, effectively removing this case from the dictates of Johnson. This court must therefore investigate whether the crime of disorderly conduct is a lesser included offense of attempted murder. Although not addressed by the majority, appellant directs this court's attention to State v. Roberts (1982), 7 Ohio App. 3d 253 , in support of his proposition that disorderly conduct is a lesser included offense of attempted murder, which would, under Brown, bar the court from trying appellant for the second offense. In Roberts , the First Appellate District held that disorderly conduct was a lesser included offense of assault. (Roberts examined the state statutory crime of disorderly conduct, R.C. 2917.11(A)(1), rather than the Middlefield analogue. However, both statutes are functionally identical for the puposes of our analysis.) The rationale behind the Roberts holding was that disorderly conduct was a crime of a lesser degree than assault (a minor misdemeanor as opposed to a first degree misdemeanor), a person could not knowingly cause or attemtp to cause physical harm to another without "inconvenience, annoyance or harm," and the requirement of actually causing physical harm is not necessary to prove disorderly conduct. Id. at 334 . Appellant, in the case sub judice, argues that pursuant to Roberts , if disorderly conduct is a lesser included offense of assault, and assault is a lesser included offense of murder (and, presumably, attempted murder), then disorderly conduct should, by extension, be found to be a lesser included offense of attempted murder. Appellant's argument is creative, but ultimately unavailing. The reason that appellant's argument is not convincing lies in the subsuming, in the statutory crime of assault, of two different common law crimes: assault and battery. Although, under Ohio law, the only recognized crimes are statutory, the intent of the drafters of R.C. 2903.13 was to "[probihit] simple assault and simple battery in the traditional [common law] sense." Committee note to R.C. 2903.13. At common law, criminal assault was a display of force that would give the victim reason to fear or expect immediate bodily harm. This crime is different from the crime of battery, in that battery, technically defined, requires physical contact of some sort, whereas assault does not. Consequently, when considering the issue of whether disorderly conduct is a lesser included offense of attempted murder, this court must consider whether disorderly conduct is a crime of lesser degree than attempted murder; whether attempted murder can be committed without committing disorderly conduct; and whether there is an element of attempted murder which is not required to prove the commission of disorderly conduct. Accord, Kidder. As the majority notes, clearly disorderly conduct, a minor misdemeanor, is a crime of a lesser degree than attempted murder, a first degree felenoy. Further, the state can prove disorderly conduct without demonstrating that the perpetrator attempted to kill the victim. The analytical difficulty that lies in construing disorderly conduct as a lesser included offense of attempted murder comes in construction of the second tenet of the Kidder test. Under Kidder, disorderly conduct can only be considered a lesser included offense of attempted murder if, using the statutory constructions of both crimes, one could not commit attempted murder without also committing disorderly conduct. The phrase "as statutorily defined" implies that the elements of the crimes in question are not merely similar but are substantially identical. In order to show that a defendant is guilty of attempted murder, the state must show that the defendant purposely or knowingly engaged in conduct which, if successful, would constitute murder. R.C. 2923.02(A). Disorderly conduct, as defined in the Middlefield ordinance, is engaging in fighting, threatening harm to persons or property, or in violent or turbulent behavior which would cause the victim, upon apprehending such behavior, to be inconvenienced, annoyed or alarmed. In the disorderly conduct ordinance, the state must not only prove that the defendant acted offensively, but also that the victim witnessed the behavior and was inconvenienced, annoyed, or alarmed by it. There is no concomitant necessity to show that the victim was aware of the crime being committed in the statutory murder statute and, in fact, the victim may be totally unaware that someone is trying to kill him/her. Applying the rationale of Kidder by analogy, it would appear that there is a *658 requirement that the victim be aware of the impending danger of physical attack in the crime of technical assault. Consequently, someone who is committing the crime of technical assault must also, by extension, commit the crime of disorderly conduct. In a completed assault (common law battery), the victim does not have to be aware of the offensive touching in order for the crime of battery to be committed. However, the assault, once completed, would not be a greater offense, under the Kidder test, of disorderly conduct. The Ohio Supreme Court, in Kidder, utilized analysis similar to the case at bar in holding that aggravated menacing, R.C. 2903.21, is not a lesser included offense of attempted murder. The court stated: "*** [M]urder can be committed without the victim's being aware of impending serious physical harm [as opposed to aggravated menacing, which requires that the victim be aware that the perpetrator intend to cause harm to the victim, the victim's property, or the victim's immediate family]. Thus, the second prong of the statutory-elements test is not met, and no set of facts adduced at trial would have warranted a charge to the jury on the lesser, but not included, offense of aggravated menacing. ***" Kidder at 283. The absence of an awareness element in the statutory crime of attempted murder similarly bars this court from finding that disorderly conduct is a lesser included offense of attempted murder. It is for this reason that the holding in this case must be explicitly distinguished from Roberts . As a result, the appellant may be tried for attempted murder irrespective of having previously been convicted of disorderly conduct. Therefore, for the foregoing reasons, I concur. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6707729. Public record. Not legal advice.