State v. Mutter (Slip Opinion)State v. Mutter (Slip Opinion)
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
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
{¶ 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, the 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
{¶ 7} The Mutters filed motions to dismiss the indictment, alleging violations of the Ohio and United States Constitutions’ Double Jeopardy Clauses. On February 6, 2015, the trial court held a joint hearing on the motions. On February 20, 2015, the trial court issued a judgment entry dismissing the indictment against the Mutters.
{¶ 8} The state appealed the trial court‘s dismissal of the November 4 indictment. In reversing the trial court‘s judgment, the Fourth District concluded, “The dispositive issue here is whether the menacing by stalking offenses, which the ethnic intimidation charges were reduced to in the municipal court, constitute lesser included offenses of the ethnic intimidation charges of the indictments.” 2016-Ohio-512, 59 N.E.3d 645, ¶ 26. The court of appeals concluded that the trial court‘s factual determination that the Mutters’ convictions for aggravated menacing and indictments for ethnic intimidation arose from the same incident was not supported by any evidence in the record or the municipal court‘s publicly accessible docket. Id. at ¶ 29. However, at oral argument before this
{¶ 9} We accepted two propositions of law from the Mutters for review:
Second prosecutions are barred when they require relitigation of factual issues already resolved by a previous prosecution.
Fifth andFourteenth Amendments , United States Constitution;Section 10, Article I, Ohio Constitution .* * *
An appellate court may not shift the burdens established by
App.R. 9 andApp.R. 12(A) in Ohio‘s Rules of Appellate Procedure.Fourteenth Amendment , United States Constitution;Section 16, Article I, Ohio Constitution .
146 Ohio St.3d 1414, 2016-Ohio-3390, 51 N.E.3d 659.
{¶ 10} The Mutters assert that the United States and Ohio Constitutions protect against successive prosecutions for greater and lesser included offenses and that the aggravated-menacing offenses they were convicted of in municipal court are lesser included offenses of the ethnic intimidation charged in the indictment. The Mutters also argue that their negotiated pleas of no contest to charges of aggravated menacing and menacing by stalking are dispositive of this case because they reasonably believed that their pleas in Portsmouth Municipal Court would forbid further prosecutions for any greater offense related to the same factual scenario. Finally, the Mutters argue that the appellate court improperly shifted the burden to them to provide evidence in the appellate record.
{¶ 11} The state counters that the Portsmouth Municipal Court lacked jurisdiction. As a result, the state contends, the judgments entered by the Portsmouth Municipal Court amending Buddy Mutter‘s felony charge to a misdemeanor are void and jeopardy never attached. Additionally, the state argues, under Blockburger, ethnic intimidation and aggravated menacing contain separate and distinct elements and these offenses are separate offenses under a double-jeopardy successive-prosecution analysis.
{¶ 12} Because our double-jeopardy analysis is dispositive, we do not address the Mutters’ second proposition of law.
III. Law and Analysis
A. Standard of Review
{¶ 13} Appellate courts review de novo the denial of a motion to dismiss an indictment on the grounds of double jeopardy, because it is a pure question of
B. Constitutional Protections against Double Jeopardy Prohibit a Second Prosecution for the Same Offense
{¶ 14} “Where successive prosecutions are at stake, the double jeopardy guarantee serves ‘a constitutional policy of finality for the defendant‘s benefit.‘” State v. Liberatore, 4 Ohio St.3d 13, 14, 445 N.E.2d 1116 (1983), quoting United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971). The question in this case is whether the state would violate that guarantee if it prosecuted the Mutters on ethnic-intimidation charges under
{¶ 15} The Double Jeopardy Clause of the
{¶ 16} At the outset, we note that the fact that the Mutters were prosecuted in municipal court by the city of Portsmouth while the indictment that was filed in common pleas court was brought in the name of the state of Ohio does not affect the claim of double jeopardy. State v. Zima, 102 Ohio St.3d 61, 2004-Ohio-1807, 806 N.E.2d 542, ¶ 17, citing State v. Best, 42 Ohio St.2d 530, 533, 330 N.E.2d 421 (1975). “[T]he state and the city are parts of a single sovereignty, and double jeopardy stands as a bar to a prosecution by one, after an accused has been in jeopardy for the same offense in a prosecution by the other.” Best at 533, citing Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970).
{¶ 18} We recognize that there are exceptions to the Blockburger rule. See, e.g., Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912); Garrett v. United States, 471 U.S. 773, 778, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985); Ohio v. Johnson, 467 U.S. 493, 501, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984). However, the parties did not raise any of these exceptions, and they are inapplicable here.
{¶ 19} As charged in the indictments in this case, the offense of ethnic intimidation as defined by
{¶ 20} Ethnic intimidation can be committed by violating, with the requisite racial or ethnic animus,
{¶ 21} The United States Supreme Court applied the Blockburger test when the state of Ohio attempted to prosecute a defendant for the greater offense of auto theft after the defendant had pleaded guilty to the lesser included offense of joyriding. See Brown, 432 U.S. at 168, 97 S.Ct. 2221, 53 L.Ed.2d 187. In Brown, the court concluded that “[w]hatever the sequence may be, the
{¶ 22} The facts in the case at bar closely mirror the facts in Brown. Like the defendant in Brown, the Mutters were first prosecuted for a misdemeanor offense that was a lesser included offense of the felony for which they were eventually indicted. See Brown at 167. The Brown court, relying on Blockburger, determined that the lesser included offense of “joyriding requires no proof beyond that which is required for conviction of the greater auto theft. The greater offense is therefore by definition the ‘same’ for purposes of double jeopardy as any lesser offense included in it.” Id. at 168. Therefore, a misdemeanor conviction for a lesser included offense bars the state from indicting the same defendant for a felony that by definition included the misdemeanor offense within it as a lesser included offense, arising from the same facts. In the same way, the offense of aggravated menacing is included within the offense of ethnic intimidation, as charged here, so just as joyriding and auto theft were the
IV. Conclusion
{¶ 23} The double-jeopardy protections of the
Judgment reversed.
O‘DONNELL, FRENCH, O‘NEILL, FISCHER, and DEWINE, JJ., concur.
O‘CONNOR, C.J., concurs in judgment only.