State v. Gartrell

660 N.E.2d 527, 103 Ohio App. 3d 588, 1995 Ohio App. LEXIS 2114

• Court: Ohio Court of Appeals
• Decided: May 24, 1995
• Docket: No. C-940531.
• Status: Published

Opinions

Per Curiam.

Defendant-appellant Tony Gartrell, on appeal from his conviction of robbery, presents a single assignment of error in which he challenges the denial of his pretrial motion to dismiss the robbery charge. In support of this challenge, the appellant cites his previous conviction in Hamilton County Munich pal Court for disorderly conduct and contends that the state and federal constitutional guarantees against double jeopardy bar his prosecution for robbery because his disorderly conduct conviction and the robbery charge were predicated upon the same conduct and disorderly conduct is a lesser included offense of robbery. This challenge is untenable.

The record supports the appellant’s contention that a single course of conduct provided the evidentiary fundament for his conviction for disorderly conduct and for his indictment, in the proceedings underlying the instant appeal, for robbery. Case authority also appears to lend credence to the appellant’s contention that minor-misdemeanor disorderly conduct in violation of R.C. 2917.11(A)(1) is. a lesser included offense of robbery in violation of R.C. 2911.02. See State v. Reynolds (1985), 25 Ohio App.3d 59, 25 OBR 227, 495 N.E.2d 971, and State v. Roberts (1982), 7 Ohio App.3d 253, 7 OBR 333, 455 N.E.2d 508 (holding that minor-misdemeanor disorderly conduct is a lesser included offense of assault); State v. Crawford (1983), 10 Ohio App.3d 207, 10 OBR 280, 461 N.E.2d 312 (holding that assault is a lesser included offense of aggravated robbery).

The appellant, however, was convicted in municipal court of disorderly conduct as a fourth-degree misdemeanor, a violation of R.C. 2917.11(A)(1) and (E). Pursuant to R.C. 2917.11(E), the offense of disorderly conduct is elevated from a minor misdemeanor to a fourth-degree misdemeanor upon proof that “the offender persisted] in disorderly conduct after reasonable warning or request to desist * * *.” In contrast, R.C. 2911.02, proscribing the offense of robbery, does not require proof of “persist[ence].” On the other hand, the offense of robbery requires proof of a “theft offense,” while the offense of disorderly conduct does not. Thus, each offense requires proof of an element that the other does not.

We hold that the trial court properly denied the appellant’s motion to dismiss because the guarantees against double jeopardy secured by the Fifth Amendment to the United States Constitution and by Section 10, Article I of the Ohio Constitution do not operate to bar the appellant’s prosecution for robbery, following his conviction for fourth-degree-misdemeanor disorderly conduct, when each offense contains an element not contained in the other. See United States v. Dixon (1993), 509 U.S.-, 113 S.Ct. 2849, 125 L.Ed.2d 556 (overruling Grady v. Corbin [1990], 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548, and establishing the “same-elements” test of Blockburger v. United States [1932], 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306, as the exclusive means for ascertaining a double-jeopardy violation in the context of a subsequent prosecution following a conviction 1 ); see, also, Reynolds, supra (holding that the “persistence]” element precludes a determination that fourth-degree-misdemeanor disorderly conduct is a lesser included offense of assault). Accordingly, we overrule the appellant’s sole assignment of error and affirm the judgment of the trial court.

Judgment affirmed.

Hildebrandt, P.J., and Shannon, J., concur. Painter, J., concurs separately. Raymond E. Shannon, J., retired, of the First Appellate District, sitting by assignment.

1 . Nothing in the text or in the Ohio Supreme Court’s interpretation of Section 10, Article I of the Ohio Constitution suggests that the protections against multiple prosecutions provided under Section 10, Article I are any greater than the protections afforded by the Double Jeopardy Clause of the United States Constitution. See State v. Tanner (1993), 90 Ohio App.3d 761, 766, 630 N.E.2d 751, 753-754.