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State v. Lute

Court of Appeals of Ohio, Fourth District, Scioto

May 17, 2018

STATE OF OHIO Plaintiff-Appellee,
v.
TIMOTHY W. LUTE, Defendant-Appellant.

          Timothy Young, Ohio Public Defender, and Peter Galyardt, Assistant Ohio Public Defender, Columbus, Ohio, for defendant-appellant.

          Mark E. Kuhn, Scioto County Prosecuting Attorney, and Jay Willis, Scioto County Assistant Prosecuting Attorney, Portsmouth, Ohio, for plaintiff-appellee.

          DECISION AND JUDGMENT ENTRY

          MARIE HOOVER, PRESIDING JUDGE

         {¶1} 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.

         I. Facts and Procedural History

         {¶2} 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.

         {¶3} 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.

         {¶4} 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 convictions.

         {¶5} 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.

         {¶6} 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.) ("Lute I").

         {¶7} 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.

         {¶8} 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.

         II. Assignment of Error

         {¶9} Lute assigns the following ...


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