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State v. Mutter

Supreme Court of Ohio

May 24, 2017

The State of Ohio, Appellee,
v.
Mutter, Appellant. (Two Cases.)

          Submitted February 28, 2016

         Appeals from the Court of Appeals for Scioto County, Nos. 15CA3690 and 15CA3691, 2016-Ohio-512.

          Mark E. Kuhn, Scioto County Prosecuting Attorney, and Jay S. Willis, Assistant Prosecuting Attorney, for appellee.

          Timothy Young, Ohio Public Defender, and Peter Galyardt, Assistant State Public Defender, for appellant.

          Ron O'Brien, Franklin County Prosecuting Attorney, and Michael P. Walton, Assistant Prosecuting Attorney, urging affirmance for amicus curiae, Franklin County Prosecutor Ron O'Brien.

          KENNEDY, J.

         I. Introduction

         {¶ 1} In these discretionary appeals, which we consolidated for oral argument and now consolidate for decision, we consider whether the Fourth District Court of Appeals erred in reversing the trial court's decision to grant the motions of appellants, Melvin Mutter and Buddy Mutter ("the Mutters"), to dismiss an indictment that charged them with ethnic intimidation. The Mutters filed their motions to dismiss because they had already been convicted in Portsmouth Municipal Court for aggravated menacing, which is the predicate offense for the charges of ethnic intimidation that were brought against them in the dismissed indictment.

         {¶ 2} The double-jeopardy protections of the United States Constitution's Fifth Amendment, which are applicable to the states under the Fourteenth Amendment, and Article I, Section 10 of the Ohio Constitution prohibit multiple prosecutions for the same offense. Relying on the analyses in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), and Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), we conclude that in this case, aggravated menacing is a lesser included offense of ethnic intimidation, as charged in the indictment. Therefore, we hold that for double-jeopardy purposes, the Mutters' aggravated-menacing convictions are the same offenses as those charged in the dismissed indictment. Consequently, we reverse the judgment of the court of appeals and reinstate the judgment of the trial court.

         II. Facts and Procedural History

         {¶ 3} The Mutters were originally charged with offenses in the Portsmouth Municipal Court regarding an incident that occurred on October 17, 2014. On October 20, 2014, Melvin Mutter was charged with ethnic intimidation, a felony of the fifth degree, in Portsmouth Municipal Court case No. CRA 1401576, and he was also charged with the offense of aggravated menacing in Portsmouth Municipal Court case No. CRB 1401577. The records of the Portsmouth Municipal Court show that the case in which Melvin Mutter had been charged with felony ethnic intimidation was dismissed without prejudice. A new charge of menacing by stalking, case No. CRB 1401599, was filed. On October 29, 2014, Melvin Mutter pleaded no contest to both the aggravated-menacing charge in case No. CRB 1401577 and the menacing-by-stalking charge in case No. CRB 1401599. The common pleas court made a finding of fact that it was the intent of the state of Ohio and Melvin Mutter that Mutter plead to a charge of menacing by stalking as a reduction of the charge of ethnic intimidation that had been brought in the dismissed case, No. CRA 1401576.

         {¶ 4} On October 20, 2014, Buddy Mutter was also charged with felony ethnic intimidation in the Portsmouth Municipal Court, in case No. CRB 1401578, and with aggravated menacing, in case No. CRB 1401579. The records of the Portsmouth Municipal Court reflect that the ethnic-intimidation charge in case No. CRB 1401578 was reduced to a charge of menacing by stalking and that on October 23, 2014, Buddy Mutter pleaded no contest to that charge and to the charge of aggravated menacing in case No. CRB 1401579.

         {¶ 5} After their no-contest pleas, Melvin Mutter was sentenced to 180 days in jail, with 150 days suspended, placed on probation, and fined and Buddy Mutter was sentenced to 180 days in jail, with the entire sentence suspended, and placed on probation.

         {¶ 6} On November 4, 2014, a Scioto County grand jury indicted the Mutters for ethnic intimidation, a felony of the fifth degree. In the indictment, the state alleged that the Mutters violated R.C. 2903.21, the aggravated-menacing statute, "by reason of race, color, religion, or natural origin of another person." The trial court determined that the charges against the Mutters in the indictment arose from the same incident that had occurred on October 17, 2014, in Scioto ...


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