When two Portsmouth men accused of felony ethnic intimidation agreed to plead no contest to misdemeanor aggravated menacing crimes, the constitutional protection against double jeopardy barred the state from subsequently pursuing ethnic intimidation convictions, the Ohio Supreme Court ruled today.

Writing for the Supreme Court majority, Justice Sharon L. Kennedy concluded that the Scioto County Common Pleas Court was correct to dismiss charges against Melvin and Buddy Mutter after they were prosecuted in Portsmouth Municipal Court for misdemeanors, which were lesser included offenses of ethnic intimidation that stemmed from the same October 2014 incident.

The Court relied on a test developed by the U.S. Supreme Court in 1932 to determine if two separate crimes are essentially the same for the purpose of determining if the double jeopardy protection of U.S. and Ohio constitutions apply. Justice Kennedy noted the U.S. Supreme Court used “the Blockburger test” in a 1977 Ohio case, and the charges against the Mutters followed a similar pattern.

City Reduces Charges
The Mutters  originally were charged in Portsmouth Municipal Court with ethnic intimidation, a fifth-degree felony, and aggravating menacing, a first-degree misdemeanor. The city of Portsmouth dismissed Melvin Mutter’s ethnic intimidation charge and brought a new charge of “menacing by stalking” against him. Two weeks after the October 14 incident, Melvin Mutter pleaded no contest to both misdemeanor charges of aggravated menacing and menacing by stalking. He was sentenced to 180 days in jail with 150 days suspended, fined, and placed on probation.

In exchange for a guilty plea, Buddy Melvin’s charge of ethnic intimidation was reduced in municipal court to menacing by stalking. He pleaded no contest to both menacing by stalking and aggravated menacing, and  was sentenced to an entirely suspended 180-day jail sentence and placed on probation.

Less than a week after the Mutters concluded their municipal court cases, a Scioto County grand jury indicted the two for ethnic intimidation alleging they violated the aggravated menacing statute, R.C. 2903.21 “by reason of race, color, religion, or national origin of another person.”

The Mutters claimed the indictment violated their constitutional rights against double jeopardy. The common pleas court determined the misdemeanors the Mutters pleaded no contest to and felony charges brought by the state stem from the same incident and dismissed the case.

The Scioto County Prosecuting Attorney’s Office appealed the decision to the Fourth District Court of Appeals, which reversed the trial court’s ruling. The Fourth District ruled there was no evidence in the municipal court’s publicly available record to conclude the convictions for aggravated menacing and the indictments for ethnic intimidation arose from the same incident.

The Mutters appealed the decision to the Ohio Supreme Court, which agreed to hear the case.

No Second Prosecutions Allows After Convictions
The Mutters argue that the Fifth Amendment, applicable to the state’s charges through the Fourteenth Amendment, and the nearly identically worded double jeopardy clause in Article I, Section 10 of the Ohio Constitution, barred the felony indictment. The Mutters argue the state is attempting a second prosecution for the same offense after conviction.

They maintained they negotiated pleas of no contest because they believed their pleas in municipal court would eliminate the prosecution of a greater offense for the same incident in common pleas court.

The state argued that the Portsmouth Municipal Court did not have the right to reduce Buddy Mutter’s felony ethnic intimidation charge to a misdemeanor, and that under the Blockburger test, ethnic intimidation and aggravating menacing are distinct crimes that can be prosecuted separately even if they stem from the same incident.

The Court ruled the U.S. Supreme Court has stated the double jeopardy clause protects against three abuses: 1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.

The opinion stated the Blockburger test determines if two crimes contain the same “elements” and that a person’s conviction for the lesser included offense bars prosecution for the greater offense.

Ethnic intimidation, R.C. 2927.12, contains two elements, the Court explained. A person must be found to have violated one of five state laws: aggravated menacing, menacing, criminal damaging, criminal mischief, or telecommunications harassment. The second element is that one of those crimes was committed “by reason of race, color, religion, or national origin of another person.”

The opinion found that regardless of a lack of information in the municipal court records, the state conceded at oral argument before the court that the ethnic intimidation and aggravated menacing charges arose from the same incident.

Under the Blockburger test, a lesser included offense is considered to be the same as the greater offense if the lesser offense had no additional element that required additional proof for a conviction. The proof required to charge and convict a person with ethnic intimidation is enough to charge and convict someone of aggravated menacing. As a result, in this case, ethnic intimidation and aggravated menacing are the same crime when considering double jeopardy, the Court concluded.

The opinion explains the U.S. Supreme Court applied Blockburger in the 1977 Brown v. Ohio case in which Ohio attempted to prosecute a defendant for the greater offense of auto theft after he had already pleaded guilty to the lesser offense of joyriding. All the proof gathered to charge the defendant for auto theft could be used to convict for joyriding and no additional proof was needed to convict for joyriding, making them the same crime for the purposes of double jeopardy.

The Ohio Supreme Court found the facts in the Mutters claim closely mirror those in Brown. It concluded the same way joyriding was the lesser included offense of auto theft, aggravated menacing and ethnic intimidation are the same crime.

“Relying on the analysis in Blockburger and Brown, we conclude that in this case, aggravated menacing is a lesser included offense of ethnic intimidation as charged in the indictments. Therefore, we find that the Mutters’ aggravated-menacing convictions are the same offenses as those charged in the indictments brought against them in the Scioto County Court of Common Pleas.”

The Court reinstated the trial court’s ruling to dismiss the charges.

Justices Terrence O’Donnell, Judith L. French, William M. O’Neill, Patrick F. Fischer, and R. Patrick DeWine joined the majority opinion.

Chief Justice Maureen O’Connor concurred in judgment only.

2016-0440 and 2016-0441. Sate v. Mutter, Slip Opinion No. 2017-Ohio-2928.

View oral argument video of this case.

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