Submitted February 28, 2016
from the Court of Appeals for Scioto County, Nos. 15CA3690
and 15CA3691, 2016-Ohio-512.
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.
O'Brien, Franklin County Prosecuting Attorney, and
Michael P. Walton, Assistant Prosecuting Attorney, urging
affirmance for amicus curiae, Franklin County Prosecutor Ron
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
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.
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.
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 ...