[Cite as State v. Cox, 2016-Ohio-3250.]

COURT OF APPEALS 

STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : JUDGES: 

 : Hon. Sheila G. Farmer, P.J. 

 Plaintiff - Appellee : Hon. John W. Wise, J. 

 : Hon. Craig R. Baldwin, J. 

-vs- : 

 : 

RONALD L. COX : Case No. 2015CA00174 

 : 

 Defendant - Appellant : O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Alliance Municipal 

Court, Case No. 2015 CRB 00139 

JUDGMENT: Judgment vacated, 

 Final judgment entered 

DATE OF JUDGMENT: May 31, 2016 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

CAITLYN. R. SCHNEIDER IAN ROBINSON 

JENNIFER ARNOLD Fitch, Kendall, Cecil, Robinson 

MATTHEW KUHN & Barry Co., LPA 

Law Director's Office 600 East State Street, P.O. Box 590 

470 East Market Street Salem, Ohio 44460 

Alliance, Ohio 44601 
Stark County, Case No. 2015CA00174 2 

Baldwin, J.

{¶1} Appellant Ronald L. Cox appeals a judgment of the Alliance Municipal Court 

convicting him of disorderly conduct (R.C. 2917.11(A)(5)). Appellee is the State of Ohio. 

STATEMENT OF THE FACTS AND CASE 

{¶2} On January 26, 2015, appellant went to the Alliance YMCA to play 

basketball with his son. While there, he noticed that his two daughters had swim practice 

in the pool. He went to the area near the locker room to wait to see his daughters. 

Appellant is a sergeant with the Ohio State Highway Patrol. 

{¶3} The girls were at the YMCA with their mother and her friend, Jen Clair. 

When appellant went to the hallway to wait for the girls, Clair was standing there and 

began videotaping appellant with her phone. Appellant asked Clair to stop taping him, 

and made insulting comments to Clair about her family, education, and work ethic. At 

one point, captured in both the YMCA security video and by Clair’s telephone, appellant 

put his hand toward the cell phone, causing Clair to jerk backwards. However, Clair 

continued to film appellant standing in the hallway for about seven more minutes. 

{¶4} Clair returned home and her fiancé encouraged her to file a police report. 

Clair told police that appellant started “mouthing” as always, and she was “scared to 

death.” Tr. 39-40. Appellant was charged with menacing in violation of R.C. 2903.22. 

The case proceeded to bench trial in the Alliance Municipal Court. 

{¶5} At trial, Clair testified that appellant came after her cell phone, and she 

yanked it back. She testified that she and appellant’s ex-wife were told to videotape 

everything appellant did. She testified that appellant is a scary man and that in eight 

years of dealing with him, she never had a positive interaction. When asked on cross-
Stark County, Case No. 2015CA00174 3 

examination, she testified that she couldn’t really say how she was feeling at the time, 

and all she was thinking was, “Video. Video. Video.” Tr. 32. 

{¶6} Appellant testified that he wanted her to stop filming him, as he was tired of 

her recording him. He testified that Clair has harassed him, his wife, and his parents for 

seven to eight years. He admitted to going for the phone, but testified that he did not try 

to touch her or scare her. He further testified that while filming, Clair gave him the finger 

and was smirking and laughing. 

{¶7} At the close of evidence, the court asked the prosecutor if he wanted to 

submit the case solely on the charge of menacing. The prosecutor responded that the 

court could include a lesser-included offense such as disorderly conduct. Appellant 

objected. 

{¶8} The court found appellant not guilty of menacing based on Clair’s testimony. 

The court noted that appellant came after the phone and not after Clair, and that she 

testified that she did not know how she felt at the time. The court further noted that when 

appellant approached her he did not threaten her, but said “Quit filming,” and that his 

voice was never raised throughout the insulting comments he made to Clair. However, 

the court found that raising his hand to Clair and causing her to yank back was physically 

offensive and served no lawful purpose, and found him guilty of disorderly conduct. He 

was fined $100.00, with full credit toward the fine upon completion of anger management 

treatment. 

{¶9} Appellant assigns three errors: 

{¶10} “I. THE TRIAL COURT ERRED IN DENYING A MOTION FOR 

ACQUITTAL ON THE MENACING CHARGE WHERE THE PROSECUTION 
Stark County, Case No. 2015CA00174 4 

PRODUCED NO EVIDENCE TO PROVE THE VICTIM BELIEVED THE OFFENDER 

WILL CAUSE HER PHYSICAL HARM. 

{¶11} “II. THE TRIAL COURT ERRED IN RULING THAT DISORDERLY 

CONDUCT AS DEFINED IN R.C. 2917.11(A)(5) IS A LESSER INCLUDED OFFENSE 

OF MENACING, R.C. 2903.22(A). 

{¶12} “III. THE APPELLANT CANNOT BE CONVICTED WHERE THE 

PROSECUTION FAILS TO PRODUCE SUFFICIENT PROOF BEYOND A 

REASONABLE DOUBT THAT DEFENDANT WAS GUILTY OF ALL OF THE ELEMENTS 

OF DISORDERLY CONDUCT, R.C. 2917.11(A)(5).” 

II. 

{¶13} We address appellant’s second assignment of error first, as it is dispositive 

of the appeal. Appellant argues that disorderly conduct as defined by R.C. 2917.11(A)(5) 

is not a lesser included offense of menacing, R.C. 2903.22(A). We agree. 

{¶14} For an offense to be a lesser included offense, three requirements must be 

met: (1) the offense must carry a lesser penalty than the greater offense; (2) the greater 

offense cannot, as statutorily defined, ever be committed without the lesser offense also 

being committed; and (3) some element of the greater offense must not be required to 

prove the commission of the lesser offense. State v. Deem, 40 Ohio St. 3d 205, 533 

N.E.2d 294, ¶3 of the syllabus (1988). The second prong of the Deem test requires us 

to examine the offenses at issue as defined by statute and not with reference to the 

specific facts of the case; the evidence presented in a particular case is irrelevant to the 

determination of whether an offense, as statutorily defined, is necessarily included in a 

greater offense. State v. Kidder, 32 Ohio St. 3d 279, 282, 513 N.E.2d 311, 315 (1987). 
Stark County, Case No. 2015CA00174 5 

{¶15} Appellant was convicted of disorderly conduct in violation of R.C. 

2917.11(A)(5): 

{¶16} “(A) No person shall recklessly cause inconvenience, annoyance, or alarm 

to another by doing any of the following: 

{¶17} “(5) Creating 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.” 

{¶18} Appellant was charged with menacing in violation of R.C. 2903.22(A): 

(A) No person shall knowingly cause another to believe that the 

offender will cause 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. In addition to any other basis for the other person's belief 

that the offender will cause 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, the other person's belief may be based on words or 

conduct of the offender that are directed at or identify a corporation, 

association, or other organization that employs the other person or to which 

the other person belongs. 

{¶19} The State cites several cases which hold that disorderly conduct is a lesser 

included offense of menacing; however, these cases discuss subsection (A)(1) of R.C. 

2917.11, and not subsection (5), which is at issue in the instant case. 

{¶20} In State v. Compton, 153 Ohio App. 3d 512, 794 N.E.2d 771, 2003-Ohio4080, the First District Court of Appeals considered whether disorderly conduct as defined 
Stark County, Case No. 2015CA00174 6 

by R.C. 2917.11(A)(5) is a lesser included offense of domestic violence. Pursuant to R.C. 

2919.25(C), a person commits domestic violence when, by threat of force, he knowingly 

causes a family or household member to believe that he will cause imminent physical 

harm to the family or household member. Thus, the statutory definition of domestic 

violence is similar to menacing as defined by R.C. 2903.22(A). The Compton court 

concluded that because the elements of domestic violence require only a subjective risk, 

i.e., that the family member merely believes the offender will cause imminent physical 

harm, domestic violence can be committed without committing disorderly conduct under 

R.C. 2917.11(A)(5), which requires that there be an actual and not merely subjective risk 

of physical harm to persons or property. Id. at ¶13. The court continued: 

Admittedly, there are factual scenarios in which a person committing 

domestic violence may, at the same time, commit a form of disorderly 

conduct. When a person threatens a household member with force, causing 

a belief of imminent physical harm, that person also commits disorderly 

conduct by recklessly causing alarm to another by creating a condition that 

is physically offensive to that person, as provided in the first part of R.C. 

2917.11(A)(5). The second prong of Deem, it should be noted, does not 

require the elements of the greater and the lesser-included offenses to be 

stated in identical language. Clearly, if the victim of domestic violence 

believes that “the offender will cause imminent physical harm to a family or 

household member,” a fortiori, the offender has caused the victim alarm by 

creating a condition that is “physically offensive” to that person, and has 

thus committed this particular form of disorderly conduct. 
Stark County, Case No. 2015CA00174 7 

However, even with an allowance for this one narrow instance in 

which the two offenses statutorily coincide, the trial court's findings do not 

allow the conclusion that this is what happened here. The trial court 

expressly found that the state had failed to prove that Compton had 

threatened his wife with physical force. Indeed, the absence of a threat of 

force was the reason that the trial court acquitted Compton of the charge of 

domestic violence. Consequently, the one scenario in which the same 

conduct necessarily constitutes both domestic violence and disorderly 

conduct was effectively precluded by the trial court's factual findings. 

{¶21} Id. at ¶ 14-15. 

{¶22} Similarly, in the instant case, the offense of menacing requires a subjective 

belief that the person believes the offender will cause physical harm, and a person can 

therefore commit menacing without committing disorderly conduct pursuant to R.C. 

2917.11(A)(5), which requires an actual risk of physical harm or a situation that is 

physically offensive. The court in the instant case acquitted appellant of menacing on the 

basis that the victim’s testimony did not support a finding that he threatened her physically 

or that she believed she he would cause her physical harm. Thus, as in Compton, even 

when considering the evidence in the case, the trial court’s findings did not correspond 

with the one scenario in which the same conduct necessarily constituted menacing and 

disorderly conduct. 

{¶23} The court erred in convicting appellant of disorderly conduct in violation of 

R.C. 2917.11(A)(5), as it is not a lesser included offense of menacing. The second 

assignment of error is sustained. 
Stark County, Case No. 2015CA00174 8 

{¶24} Appellant’s first and third assignments of error are rendered moot by our 

disposition of assignment of error two. 

{¶25} The judgment of the Alliance Municipal Court is vacated. Pursuant to App. 

R. 12(B), we hereby enter final judgment of acquittal in favor of appellant Ronald L. Cox. 

Costs are assessed to appellee. 

By: Baldwin, J. 

Farmer, P.J. and 

Wise, J. concur.