dissenting.
{¶ 17} I respectfully dissent and would hold that the minor-misdemeanor charge of reckless operation, R.C. 4511.20, is a lesser included offense of the third-degree felony of failure to comply under R.C. 2921.331(B) and 2921.331(C)(5)(a)(ii). Consequently, the Double Jeopardy Clause bars a later prosecution for a third-degree felony offense of failure to comply when there is a *548conviction for minor-misdemeanor reckless operation arising from the same set of facts.
The Statutes
{¶ 18} Fairbanks was first convicted of reckless operation under R.C. 4511.20, a minor-misdemeanor offense. Subsection (A) states, “No person shall operate a vehicle, trackless trolley, or streetcar on any street or highway in willful or wanton disregard of the safety of persons or property.” Subsequently, Fairbanks was charged with a new offense, failure to comply, arising from the same event. The indictment specified a violation of R.C. 2921.331(B), which states, “No person shall operate a motor vehicle so as willfully to elude or flee a police officer after receiving a visible or audible signal from a police officer to bring the person’s motor vehicle to a stop.” Fairbanks was also charged with the portion of the statute that defined the offense as a felony of the third degree:
{¶ 19} “A violation of division (B) of this section is a felony of the third degree if the jury or judge as trier of fact finds any of the following by proof beyond a reasonable doubt:
{¶ 20} “ * * *
{¶ 21} “(ii) The operation of the motor vehicle by the offender caused a substantial risk of serious physical harm to persons or property.” R.C. 2921.331(C)(5)(a).
{¶ 22} The majority’s double-jeopardy analysis of Fairbanks’s earlier conviction and subsequent indictment is flawed. In making its lesser-included-offense comparison, the majority measures minor-misdemeanor reckless operation against the first-degree-misdemeanor form of failure to comply (R.C. 2921.331(B) and (C)(3)) rather than the third-degree-felony form of the offense for which Fairbanks was indicted (R.C. 2921.331(B) and (C)(5)(a)(ii)). The specification, R.C. 2921.331(C)(5)(a)(ii), provides that an individual who violates R.C. 2921.331(B) is guilty of a third-degree felony if “the operation of the motor vehicle by the offender caused a substantial risk of serious physical harm to persons or property.”
{¶ 23} I disagree with the majority’s analysis of the R.C. 2921.331(C)(5)(a)(ii) specification as simply a “penalty enhancement.” Because R.C. 2921.331(C)(5)(a)(ii) elevates the degree of the offense, it is an element of the third-degree felony, failure to comply. State v. Allen (1987), 29 Ohio St.3d 53, 55, 29 OBR 436, 506 N.E.2d 199 (an element elevates the degree of the offense; an enhancement provision increases only the penalty). As an element, R.C. 2921.331(C)(5)(a)(ii) must be proved beyond a reasonable doubt. In other words, if the factfinder determines beyond a reasonable doubt that in committing the offense of failure to comply, the operator of the motor vehicle caused “substantial *549risk of serious physical harm to persons or property,” then the offense is a third-degree felony. Cf. State v. Henderson (1979), 58 Ohio St.2d 171, 12 O.O.3d 177, 389 N.E.2d 494 (when the existence of a prior conviction not only enhances the penalty but increases the degree of the crime, the prior conviction is an element of the offense and must be proved by the state).
{¶24} The majority’s view of R.C. 2921.331(C)(5)(a)(ii) as a mere “penalty enhancement” rather than a separate element of the third-degree felony offense leads to confusion over whether the specification has a separate mental state. The court of appeals determined that “the requisite mental culpability for [an] R.C. 2921.331(C)(5)(a)(ii) violation is recklessness,” relying on R.C. 2901.21(B). (Emphasis added.) State v. Fairbanks, Ross App. No. 05CA2870, 2006-Ohio-3530, 2006 WL 1875897, ¶ 16. The majority also employs R.C. 2901.21(B), but concludes that because a culpable mental state is omitted in R.C. 2921.331(C)(5)(a)(ii), there is “a purpose to impose strict liability” with respect to that provision.
{¶ 25} R.C. 2901.21(B) is not applicable, however, since that section begins, “When the section defining an offense does not specify any degree of culpability * * (Emphasis added.) R.C. 2921.331(C)(5)(a)(ii) is not a section that defines an offense in and of itself, but is an element of the third-degree-felony form of failure to comply. The statute setting forth the offense of failure to comply does, in fact, define a mental state of culpability. R.C. 2921.331(B) begins, “No person shall operate a motor vehicle so as willfully to elude or flee a police officer * * (Emphasis added.) The culpability to be proved on the part of a defendant is willfulness. “Willfully,” however, is now defined as “purposely.” As the 1974 Legislative Service Commission comment to 1972 Am.Sub.H.B. No. 511 explained when R.C. 2901.22, the statute defining culpable mental states, was amended to its current form:
{¶ 26} “In place of the large number of terms which former law employed to describe guilty states of mind, [R.C. 2901.22] defines four mental states— purpose, knowledge, recklessness, and negligence — to describe the degrees of culpability which may be attached to a crime or to one or more elements in a crime.
{¶ 27} “Purpose is defined in terms of a specific intention either to cause a certain result, or to engage in conduct of a certain nature regardless of what the offender intends to accomplish through that conduct. ‘Purposely’ in the new code equates with ‘purposely,’ ‘intentionally,’ ‘willfully,’ or ‘deliberately’ in the former law.”
{¶ 28} Thus, for a conviction of third-degree felony failure to comply, the state must prove that the defendant purposely acted to flee or elude an officer after receiving a visible or audible signal to stop the car and that the defendant’s *550driving caused a substantial risk of serious physical harm to persons or property. Proof that the defendant willfully eluded the officer together with proof that the defendant caused “substantial risk of serious physical harm to persons or property” also satisfies the mental state of recklessness. “When the section defining an offense provides that negligence suffices to establish an element thereof, then recklessness, knowledge, or purpose is also sufficient culpability for such element. When recklessness suffices to establish an element of an offense, then knowledge or purpose is also sufficient culpability for such element. When knowledge suffices to establish an element of an offense, then purpose is also sufficient culpability for such element.” R.C. 2901.22(E).
Michael M. Ater, Ross County Prosecuting Attorney, and Judith Heimerl Brown, Assistant Prosecuting Attorney, for appellant. James T. Boulger, for appellee.{¶ 29} In my analysis, the test for lesser included offenses set forth in State v. Deem (1988), 40 Ohio St.3d 205, 533 N.E.2d 294, is satisfied. Reckless operation does not require proof of any fact beyond those required for the third-degree felony offense of failure to comply. It is impossible to commit a violation of R.C. 2921.331(B) and (C)(5)(a)(ii) — purposely fleeing despite an officer’s signal to stop, thereby causing a substantial risk of serious physical harm to persons or property — without also committing a violation of R.C. 4511.20(A) — driving a car in willful or wanton disregard of the safety of persons or property. Fairbanks was placed in jeopardy once for his reckless driving during the police chase and therefore cannot be prosecuted again on facts arising from the same incident.
Conclusion
{¶ 30} Fairbanks could not have committed the third-degree felony of failure to comply with an order or signal of a police officer, which “caused a substantial risk of serious physical harm to persons or property,” R.C. 2921.331(B) and (C)(5)(a)(ii), without also committing reckless operation by operating a motor vehicle in “willful or wanton disregard of the safety of persons or property,” a minor misdemeanor. R.C. 4511.20(A).
{¶ 31} I would, therefore, affirm the judgment of the court of appeals on grounds that jeopardy attached when Fairbanks was convicted of reckless operation and that his later prosecution for the third-degree felony offense of failure to comply violated the Double Jeopardy Clause.
Pfeifer, J., concurs in the foregoing opinion.