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Reckless Driving Conviction Does Not Bar Later ‘Failure to Comply’ Conviction Based on Same Events

2006-1529.  State v. Fairbanks, Slip Opinion No. 2008-Ohio-1470.
Ross App. No. 05CA2870, 2006-Ohio-3530.  Judgment reversed.
Moyer, C.J., and Lundberg Stratton, O'Connor, O'Donnell, and Cupp, JJ., concur.
Pfeifer and Lanzinger, JJ., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2008/2008-Ohio-1470.pdf

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(April 3, 2008) The Supreme Court of Ohio ruled today that reckless operation of a motor vehicle under R.C. 4511.20 is not a “lesser included offense” of the crime of  failure to comply with the order or signal of a police officer under R.C. 2921.331(B), when the failure-to-comply charge includes a specification of causing a substantial risk of serious physical harm to persons or property.

Based on that determination, the Court went on to hold that the conviction of a Ross County driver on a felony count of failure to comply with an officer, after he had waived a trial and paid the fine for a misdemeanor reckless operation citation based on the same incident, did not expose the defendant to “double jeopardy” by prosecuting him twice for the same conduct. The Court’s 5-2 decision, authored by Justice Robert R. Cupp, reversed a ruling of the 4th District Court of Appeals.

The case involved an October 2003 incident in which a vehicle driven by Paul Fairbanks was pursued by Ross County sheriff’s deputies until Fairbanks lost control and crashed. Fairbanks was issued citations on the date of the incident for misdemeanor reckless operation, speeding and driving left of center. Fairbanks exercised the option of waiving a trial and on Oct. 29, 2003, paid the “waiver” fine specified on his traffic tickets for each of  the misdemeanor offenses with which he was charged.

In December 2003, the Ross County prosecutor obtained a felony indictment against Fairbanks for failing to comply with a police officer’s directive to stop his vehicle during the pursuit that resulted in his misdemeanor citations. The indictment charged Fairbanks under a specific subsection of the failure-to-comply statute, R.C. 2921.331(C)(5)(a)(ii), that makes it a third-degree felony for a driver to “cause a substantial risk of serious physical harm to persons or property” while in the act of fleeing an officer. 

Fairbanks entered a plea of not guilty, and filed a motion asking the trial court to dismiss the felony count on the ground that he had already been charged, admitted his guilt and paid the fine for driving recklessly during the incident in question, and the felony indictment therefore violated his “double jeopardy” right to be prosecuted only once for the same conduct. The trial judge denied Fairbanks’ motion, and he subsequently changed his plea to no contest and was found guilty of the felony charge. Fairbanks appealed. The 4th District Court of Appeals reversed the trial court and vacated his felony conviction.  The court of appeals held that the misdemeanor reckless operation offense for which Fairbanks had already been convicted and punished was a “lesser included offense” of the felony version of failure to comply, and therefore his subsequent prosecution on the felony count had unconstitutionally subjected him to double jeopardy.

The state appealed the 4th District’s decision, and the Supreme Court agreed to review the case.

Writing for the Court in today’s decision, Justice Cupp cited a three-part test set forth in the Supreme Court of Ohio’s 1988 decision in State v. Deem for determining when one crime is a “lesser included offense” of another. Under the Deem test, Justice Cupp explained: “A lesser included offense exists if ‘(i) the offense carries a lesser penalty than the other; (ii) the greater offense cannot, as statutorily defined, ever be committed without the lesser offense, as statutorily defined, also being committed; and (iii) some element of the greater offense is not required to prove the commission of the lesser offense.’”

Applying the Deem test to the offenses with which Fairbanks was charged, Justice Cupp wrote: “In order to commit reckless operation, a person must operate his or her vehicle ‘in willful or wanton disregard of the safety of persons or property.’  R.C. 4511.20(A).  Failure to comply, however, does not require proof of a willful or wanton disregard of the safety of persons or property; it merely requires proof that a person willfully elude or flee a police officer who has given a signal to stop. R.C. 2921.331(B).  And the addition of a felony specification pursuant to R.C. 2921.331(C)(5)(a)(ii) does not alter this conclusion. There are many circumstances wherein one can elude or flee a police officer without a willful or wanton disregard of the safety of persons or property.  For example, one can flee at a safe speed, if the officer is on foot, or hide the vehicle in an alley, a driveway, or behind a building. The potential factual scenarios are numerous, yet the conclusion is the same: a person can commit failure to comply without also committing the offense of reckless operation. Consequently, part two of the Deem test cannot be met and the offense of reckless operation, therefore, is not a lesser included offense of failure to comply.”

The Court also rejected Fairbanks’ argument that felony failure to comply is essentially a more serious form of “reckless operation” because proof of the failure to comply violation requires a showing that the defendant acted with the guilty mental state of “recklessly.” Justice Cupp noted that the misdemeanor form of failure to comply requires a showing that a defendant acted “willfully,” while the section defining the felony version includes no requirement of a specific guilty mental state. He concluded: “Because the General Assembly specified the culpable mental state of willfulness in R.C. 2921.331(B), but excluded mention of any mental state in the accompanying enhancement provision, R.C. 2921.331(C)(5)(a)(ii), this omission ‘plainly indicates a purpose to impose strict criminal liability’ with respect to that provision. Thus, we conclude that ... a culpable mental state is excluded from R.C. 2921.331(C)(5)(a)(ii).”

Justice Cupp’s decision was joined by Chief Justice Thomas J. Moyer and Justices Evelyn Lundberg Stratton, Maureen O’Connor and Terrence O’Donnell.

Justice Judith Ann Lanzinger entered a dissenting opinion, joined by Justice Paul E. Pfeifer, indicating that in her view reckless operation of a motor vehicle is a lesser included offense of the felony version of failure to comply, and therefore prosecuting Fairbanks for the latter charge after he had already been convicted and fined for reckless operation was a violation of his double jeopardy rights.

“In my analysis, the test for lesser included offenses set forth in State v. Deem (1988) ... is satisfied. Reckless operation does not require proof of any fact beyond those required for the third-degree felony offense of failure to comply,” wrote Justice Lanzinger. “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.”

Judith Heimerl Brown, 740.702.3115, for the state of Ohio and Ross County prosecutor’s office.

James T. Boulger, 740.775.5312, for Paul Fairbanks.