[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.
