On March 27, 1988, appellant, Joseph Williams, became involved in a fight at the Middlefield Tavern. The police cited appellant for disorderly conduct in violation of Middlefield Ordinance 509.03(a)(1) which states:
"(a) No person shall recklessly cause inconvenience, annoyance or alarm to another, by doing any of the following:
"(1) Engaging in fighting, in threatening harm to persons or property, or in violent or turbulent behavior; ***."
On March 31, 1988, a complaint was filed by Sgt. Malliski of the Middlefield Police Department against appellant for attempted aggravated murder in connection with the incident at the Middlefield Tavern on March 27, 1988. Appellant was arrested, posted bail, and was released.
On April 11, 1988, appellant made his initial appearance before the Chardon Municipal Court on the disorderly conduct charge. He pled no contest, was found guilty, and fined. He paid the fine.
On April 27, 1988, appellant was indicted for attempted murder by the Geauga County Grand Jury for his participation in the fight at the Middlefield Tavern. He subsequently pled not guilty.
On July 27, 1988, appellant filed a motion to dismiss based on double jeopardy. He asserted that disorderly conduct is a lesser included offense of attempted murder and, therefore, his conviction for disorderly conduct was a bar, based on double jeopardy, to further prosecution.
Following a hearing, the trial court denied appellant's motion to dismiss based on the authority of Ohio v. Johnson (1984), 467 U.S. 493, and it specifically found that disorderly conduct is not a lesser included offense of attempted murder.
Appellant timely filed a notice of appeal from that decision, assigning the following as error:
"The trial court erred in overruling the defendant's motion to dismiss founded on a claim of double jeopardy."
Appellant argues that his motion to dismiss the attempted murder charge should have been granted based on double jeopardy. He claims that disorderly conduct is a lesser included offense of attempted murder and, therefore, his plea to disorderly conduct barred the subsequent indictment for attempted murder.
Appellant is correct in his assertion that a conviction of a lesser included offense prohibits prosecution of the greater offense. Brown v. Ohio (1977), 432 U.S. 161. The critical issue in the present case, therefore, is whether disorderly conduct is a lesser included offense of attempted murder.
The test to determine if an offense is a lesser included offense was set forth by the Ohio Supreme Court in State v. Kidder (1987), 32 Ohio St. 3d 279. The court held that an offense could only be lesser included if:
»*** (y 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 also being committed, and (iii) some element of the greater offense is not required to prove the commission of the lesser offense.***" Id. at 282.
It is clear that the first and third prongs of the test are met in the case sub judice. Disorderly conduct is a minor misdemeanor whereas attempted murder is a first degree felony. In addition, it is necessary to prove that a person had engaged in conduct which, if successful, would have caused the death of another in order to find that person guilty of attempted murder. See R.C. 2903.02 and *6562923.02. The element of conduct which, if successful, would cause death is not present in the disorderly conduct ordinance in question.
The second prong of the test, however, is not met by the offenses in question in the instant cause. The second prong would require that attempted murder, as statutorily defined, could not be committed without disorderly conduct also being committed. This is clearly not the case. To be guilty of annoyance, or alarm to others. It is not a prerequisite to attempted murder for the potential victim to even know that he or she is in danger. The statute focuses on the intent and actions of the perpetrator, not the victim. The second prong of the Kidder test is not met and, therefore, disorderly conduct is not a lesser included offense of attempted murder.
Although the trial court found no double jeopardy violation based on the United States Supreme Court decision in Ohio v. Johnson (1984), 467 U.S. 493, and on its conclusion that disorderly conduct is not a lesser included offense of attempted murder, it is clear that it is not necessary to reach the issue raised in Johnson, supra. Once it has been decided that one offense is not a lesser included offense of the other, then there is no double jeopardy violation.
Johnson, supra, involved the question of whether a defendant who was indicted on four counts at the same time, and who pled guilty to two of the counts which were clearly lesser included offenses of the remaining two counts, could nonetheless be tried on the greater offenses. In deciding the present case, it is not necessary to address the issue raised in Johnson, supra, because disorderly conduct is not a lesser included offense of attempted murder.
Additionally, this court notes that appellant's counsel offered further authority to support his cause during oral arguments, namely, a Court of Appeals for Clermont County decision captioned State v. Kassen (1984), 20 Ohio App. 3d 323. This court has reviewed said case and finds it to be unpersuasive.
For the foregoing reasons, the trial court was correct in denying appellant's motion to dismiss because disorderly conduct is not a lesser included offense of attempted murder.
Appellant's assignment of error is without merit.
The judgment of the trial court is affirmed.
Judgment affirmed.
CHRISTLEY, P.J., Concurs FORD, J., concurs with Concurring Opinion