State v. Harris , 2018 Ohio 5292 ( 2018 )

[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
Butler CA2018-02-037
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
-2-
Butler CA2018-02-037
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
-3-
Butler CA2018-02-037
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
-4-
Butler CA2018-02-037
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.
-5-