State v. Mutter (Slip Opinion), 82 N.E.3d 1141

In October 2014 Melvin and Buddy Mutter were charged in Portsmouth Municipal Court with aggravated menacing and related reduced misdemeanor counts (menacing by stalking) after ethnic-intimidation allegations arising from a single October 17 incident; both pleaded no contest and were convicted/sentenced in municipal court.
The municipal court record reflected that an original felony ethnic-intimidation charge had been dismissed or reduced, and the common pleas court found the municipal pleas were intended as reductions of the original ethnic-intimidation charges.
On November 4, 2014 a Scioto County grand jury (Common Pleas) indicted both Mutters for felony ethnic intimidation, alleging the predicate offense was aggravated menacing motivated by race or national origin.
The Mutters moved to dismiss the indictment on double-jeopardy grounds, arguing their municipal convictions were lesser-included offenses of the indicted ethnic-intimidation offense.
The trial court granted the motions and dismissed the indictments; the Fourth District reversed, but the state conceded at oral argument here that both prosecutions arose from the same incident.
The Ohio Supreme Court considered whether aggravated menacing (as previously convicted) is a lesser included offense of the charged ethnic intimidation and whether the second prosecution was barred by the Double Jeopardy Clauses.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether prosecuting ethnic intimidation after municipal aggravated-menacing convictions violates double jeopardy	State: Blockburger distinguishes offenses; ethnic intimidation has an extra element (bias) so a second prosecution is permissible	Mutters: Municipal aggravated-menacing convictions are lesser included offenses of the charged ethnic-intimidation offense, so successive prosecution is barred	The court held the successive prosecutions were barred; aggravated menacing is a lesser included offense of the charged ethnic intimidation
Whether municipal convictions were void for lack of jurisdiction such that jeopardy never attached	State: Municipal court lacked jurisdiction so its judgments are void and do not trigger double jeopardy	Mutters: Municipal convictions valid and triggered double-jeopardy protection against the later felony charge	Court did not need to decide jurisdictional argument because double-jeopardy analysis resolved the case in Defendants’ favor

Blockburger v. United States, 284 U.S. 299 (establishes "same-elements" test for double jeopardy)
Brown v. Ohio, 432 U.S. 161 (double jeopardy bars successive prosecution for greater offense when defendant convicted of lesser included offense)
Zima v. State, 102 Ohio St.3d 61 (Ohio adoption of Blockburger same-elements test)
United States v. Dixon, 509 U.S. 688 (summary of Blockburger test application)
State v. Brown, 119 Ohio St.3d 447 (incorporation of federal double-jeopardy principles to Ohio prosecutions)