Court of Appeals of Ohio, Fourth District, Scioto
Timothy Young, Ohio Public Defender, and Peter Galyardt,
Assistant Ohio Public Defender, Columbus, Ohio, for
E. Kuhn, Scioto County Prosecuting Attorney, and Jay Willis,
Scioto County Assistant Prosecuting Attorney, Portsmouth,
Ohio, for plaintiff-appellee.
DECISION AND JUDGMENT ENTRY
HOOVER, PRESIDING JUDGE
Defendant-appellant, Timothy Lute ("Lute"), appeals
the judgment of the Scioto County Court of Common Pleas which
overruled his motion to dismiss; convicted him of kidnapping
with a firearm specification, a sexual motivation
specification, and a sexually violent predator specification;
and sentenced him to five years in prison. On appeal, Lute
contends that the trial court erred in denying his motion to
dismiss because the Ohio Constitution's protection
against double jeopardy barred a third trial in his case. For
the following reasons, we find that the trial court did not
violate Lute's double jeopardy rights by pursuing a third
trial after receiving the cause on remand by Decision and
Judgment Entry filed November 28, 2016. Further, we refuse to
extend the protections afforded under the Ohio Constitution
to provide the requested relief. Accordingly, we affirm the
judgment of the trial court.
Facts and Procedural History
Lute was indicted on five counts: (1) rape with a firearm
specification and a sexually violent predator specification;
(2) kidnapping with a firearm specification; (3) kidnapping
with a firearm specification, sexual motivation
specification, and sexually violent predator specification;
(4) felonious assault with a firearm specification and a
sexually violent predator specification; and (5) having a
weapon while under a disability.
Despite concerns regarding Lute's competency, the trial
court ultimately found Lute competent to stand trial. The
first trial resulted in a hung jury and a mistrial. In this
first trial, Lute testified in his own defense.
The State then elected to proceed with a second trial. In
this trial, a different attorney represented Lute; and Lute
did not testify. The jury returned guilty verdicts on the
rape count, the first kidnapping count, and the having a
weapon under a disability count. The trial court entered
judgment on the verdicts and sentenced Lute to an aggregate
and mandatory ten-year term of imprisonment. Lute was also
classified as a Tier III sex offender as a result of the
Lute appealed the judgment of the second trial. In his first
assignment of error, Lute contended that his trial counsel
rendered ineffective assistance and that certain
irregularities prevented him from receiving a fair trial.
Specifically, Lute alleged that he did not have the
opportunity to present additional evidence in support of his
case, including testifying in his own defense.
After reviewing the record, this Court determined that
Lute's constitutional rights had been violated when the
trial court improperly prohibited him from testifying in his
own defense. Although Lute waited until both parties had
rested to raise his desire to testify, the trial court's
need to maintain control over the presentation of evidence
and to bring the trial to a timely conclusion did not
outweigh the defendant's substantive right to testify in
his own defense. Accordingly, we reversed the trial
court's judgment and remanded the matter for further
proceedings consistent with our opinion. See State v.
Lute, 2016-Ohio-7978, 76 N.E.3d 664 (4th Dist.)
After the State commenced a third trial, Lute filed a motion
to dismiss. In his motion, Lute contended that the Double
Jeopardy Clause of the United States Constitution and Section
10, Article I of the Ohio Constitution barred retrial because
the trial court had improperly induced a mistrial. The trial
court did not find Lute's argument persuasive and
overruled his motion to dismiss.
Thereafter, Lute entered an Alford/No Contest plea to Count
Two of the Indictment: Kidnapping, a felony of the first
degree. He agreed to and received a negotiated sentence of
five years in prison, and all other counts were dismissed.
This appeal followed.
Assignment of Error
Lute assigns the following ...