State v. Peel , 2022 Ohio 362 ( 2022 )

[Cite as State v. Peel, 2022-Ohio-362.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-200431
C-200432
Plaintiff-Appellee, : C-200433
TRIAL NO. 20CRB-12299
vs. :
JUSTIN PEEL, : O P I N I O N.
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: February 9, 2022
Andrew W. Garth, City Solicitor, William T. Horsely, Chief Prosecuting Attorney,
and Amber H. Daniel, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Matthew T. Ernst, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
WINKLER, Judge.
{¶1} Defendant-appellant Justin Peel appeals from three convictions for
disorderly conduct under R.C. 2917.11(A)(1). We find no merit in his sole assignment
of error, and we affirm his convictions.
{¶2} Peel was originally charged with five counts of aggravated menacing
under R.C. 2903.21(A). Two of the counts were dismissed because the victims in
those counts failed to appear at trial. The charges involving the remaining three
victims, Janae Walker, Linda Bea, and Mary Walker, were tried to the court.
{¶3} The record shows that on June 21, 2020, Janae Walker was preparing
for guests to arrive to celebrate Father’s Day. She was inside her townhouse when
she saw Peel, a security guard at her apartment complex, putting a sticker on her car.
She went out to investigate and discovered that Peel had put a warning sticker on her
car for parking in a handicapped parking spot without displaying the proper placard.
{¶4} Janae presented Peel with the handicapped placard, which was in the
car hidden under some papers. He told her that he did not care and “smashed the
sticker into [her car] window further.” Then he took a picture of it, and told Janae
that she would “have to take it up with somebody else.” At one point, a family
member pointed at Peel and stated that he was going to get his gun, although he
never went back inside.
{¶5} After she heard a commotion, 74-year-old Bea came out of the
townhouse into the parking lot. Peel then put his hand on his Taser. She walked
over to him and stated, “This is Sunday. We are supposed to have unity.” Peel then
pointed his gun directly at Bea’s chest. Janae pushed Bea to the side and stood in
front of her.
{¶6} Mary, Janae’s mother, walked out onto the porch. Her grandchildren
were on the porch with her. She saw Peel point his gun at Bea. He yelled at everyone
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OHIO FIRST DISTRICT COURT OF APPEALS
to “get in the house,” and waved his gun around. At one point, he pointed it directly
at Mary.
{¶7} The trial court found that the state had failed to prove all of the
elements of aggravated menacing, but it found Peel guilty of three counts of
disorderly conduct under R.C. 2917.11(A)(1), which it deemed to be a lesser-included
offense 0f aggravated menacing. This appeal followed.
{¶8} In his sole assignment of error, Peel contends that the trial court erred
in finding him guilty of disorderly conduct. He argues that disorderly conduct is not
a lesser-included offense of aggravated menacing. This assignment of error is not
well taken.
{¶9} An offense may be a lesser-included offense of another if (1) the
offense carries a lesser penalty than the other; (2) the greater offense, cannot, as
statutorily defined, be committed without the lesser offense also being committed;
and (3) some element of the greater offense is not required to prove the commission
of the lesser offense. State v. Deem, 40 Ohio St.3d 205, 533 N.E.2d 294 (1988),
paragraph three of the syllabus, as clarified in State v. Evans, 122 Ohio St.3d 381,
2009-Ohio-2974, 911 N.E.2d 889; State v. Baker, 1st Dist. Hamilton Nos. C-120470
and C-120471, 2013-Ohio-2507, ¶ 9.
{¶10} Peel was originally charged with aggravated menacing under R.C.
2903.21(A). It provides, “No person shall knowingly cause another to believe that
the offender will cause serious physical harm to the person or property of the other
person, the other person’s unborn, or a member of the other person’s immediate
family.”
{¶11} He was convicted of disorderly conduct under R.C. 2911.17(A)(1). It
provides, “No person shall recklessly cause inconvenience, annoyance, or alarm to
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another by doing any of the following: [e]ngaging in fighting, in threatening harm to
persons or property, or in violent or turbulent behavior * * *.”
{¶12} While this court has not specifically ruled on the issue of whether
disorderly conduct under R.C. 2911.17(A)(1) is a lesser-included offense of
aggravated menacing under R.C. 2903.21(A), other appellate courts have held that it
is. Those cases are persuasive. Applying the criteria set forth by the Ohio Supreme
Court in Deem and Evans, we hold that disorderly conduct under section (A)(1) is a
lesser-included offense of aggravated menacing.
{¶13} First, disorderly conduct is a minor misdemeanor and carries a lesser
penalty than aggravated menacing, which is a misdemeanor of the first degree.
Second, aggravated menacing contains the element of threatening physical harm,
which cannot be committed without at the same time causing annoyance or alarm to
the victim. Third, the threat of serious physical harm is required for aggravated
menacing but not to prove the commission of disorderly conduct under R.C.
2911.17(A)(1). Further, the greater mental state of knowingly is required for
aggravated menacing while disorderly conduct requires the mental state of
recklessness. See Cleveland v. Smith, 8th Dist. Cuyahoga No. 91778, 2009-Ohio-
3594, ¶ 7-9 (involving city ordinances with similar language); State v. Ozias, 12th
Dist. Butler No. CA2003-04-102, 2003-Ohio-5431, ¶ 11-15; State v. Wardlow, 4th
Dist. Highland No. 98CA11, 1999 Ohio App. Lexis 3545, *4-5 (July 26, 1999); State v.
Shumaker, 2d Dist. Darke No. 1332, 1994 Ohio App. Lexis 571, *17-19 (Feb. 18,
1994).
{¶14} Peel relies on State v. Lampela, 2o16-Ohio-8007, 67 N.E.3d 836 (6th
Dist.), in which the court found that disorderly conduct was not a lesser-included
offense of aggravated menacing. But in that case, the defendant was convicted of
violating R.C. 2917.11(A)(5). That section requires the state to prove that the
offender recklessly caused inconvenience, annoyance, or alarm to another by
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OHIO FIRST DISTRICT COURT OF APPEALS
“[c]reating a condition that is physically offensive to persons or that presents a risk
of physical harm to persons or property, by any act that serves no lawful and
reasonable purpose of the offender.” The court held that because section (A)(5)
contains the element that appellant’s conduct served no lawful and reasonable
purpose, which is not an element of aggravated menacing, it was not a lesser-
included offense of aggravated menacing. See id. at ¶ 16-17. Because Peel was not
convicted of violating section (A)(5), Lampela does not apply.
{¶15} Following the lead of the other appellate districts, we hold that
disorderly conduct under R.C. 2917.11(A) is a lesser-included offense of aggravated
menacing under R.C. 2903.21(A). Consequently, we overrule Peel’s assignment of
error, and affirm the trial court’s judgment.
Judgment affirmed.
BERGERON, P.J., and CROUSE, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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