[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Mutter, Slip Opinion No. 2017-Ohio-2928.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.


                          SLIP OPINION NO. 2017-OHIO-2928
   THE STATE OF OHIO, APPELLEE, v. MUTTER, APPELLANT. (TWO CASES.)
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
       may be cited as State v. Mutter, Slip Opinion No. 2017-Ohio-2928.]
Criminal law—Double Jeopardy—Fifth Amendment to the United States
        Constitution—Article I, Section 10 of the Ohio Constitution—Indictment for
        ethnic intimidation violated double-jeopardy clauses where defendants had
        previously been convicted of aggravated menacing and charges arose from
        the same incident.
    (Nos. 2016-0440 and 2016-0441—Submitted February 28, 2016—Decided
                                       May 24, 2017.)
                APPEALS from the Court of Appeals for Scioto County,
                   Nos. 15CA3690 and 15CA3691, 2016-Ohio-512.
                               _______________________
                             SUPREME COURT OF OHIO




       KENNEDY, J.
                                  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
Fifth Amendment, which are applicable to the states under the Fourteenth
Amendment, and Article I, Section 10 of the Ohio Constitution prohibit multiple
prosecutions for the same offense. Relying on the analyses in Blockburger v.
United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), and Brown v. Ohio,
432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), we conclude that in this case,
aggravated menacing is a lesser included offense of ethnic intimidation, as charged
in the indictment. Therefore, we hold that for double-jeopardy purposes, the
Mutters’ aggravated-menacing convictions are the same offenses as those charged
in the dismissed indictment. Consequently, we reverse the judgment of the court
of appeals and reinstate the judgment of the trial court.
                        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




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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 case No. CRB
1401577 and the menacing-by-stalking charge in case No. CRB 1401599. The
common pleas court made a finding of fact that it was the intent of the state of Ohio
and Melvin Mutter that Mutter plead to a charge of menacing by stalking as a
reduction of the charge of ethnic intimidation that had been brought in the dismissed
case, No. CRA 1401576.
       {¶ 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, a 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 R.C. 2903.21, the aggravated-menacing
statute, “by reason of race, color, religion, or natural origin of another person.” The
trial court determined that the charges against the Mutters in the indictment arose
from the same incident that had occurred on October 17, 2014, in Scioto County




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and that had given rise to the misdemeanor charges of aggravated menacing to
which the Mutters had already pleaded guilty.
       {¶ 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, ¶ 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 court, the state conceded and the
Mutters agreed that the misdemeanor convictions and indictment for ethnic
intimidation arose from the same incident.
       {¶ 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 and Fourteenth Amendments, United States
       Constitution; Section 10, Article I, Ohio Constitution.
               ***
               An appellate court may not shift the burdens established by
       App.R. 9 and App.R. 12(A) in Ohio’s Rules of Appellate Procedure.




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                                January Term, 2017




        Fourteenth Amendment, United States Constitution; Section 16,
        Article I, Ohio Constitution.


See 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 law.
See State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 16,




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citing Castlebrook, Ltd. v. Dayton Properties Ltd. Partnership, 78 Ohio App.3d
340, 346, 604 N.E.2d 808 (2d Dist.1992).
     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 R.C. 2927.12 after
their convictions for the predicate misdemeanor offense of aggravated menacing.
       {¶ 15} The Double Jeopardy Clause of the Fifth Amendment to the United
States Constitution provides that no person shall “be subject for the same offence
to be twice put in jeopardy of life or limb.” Through the Fourteenth Amendment
to the United States Constitution, this protection applies to individuals prosecuted
by the state of Ohio. State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895
N.E.2d 149, ¶ 10, citing Benton v. Maryland, 395 U.S. 784, 786, 89 S.Ct. 2056, 23
L.Ed.2d 707 (1969). The Ohio Constitution provides, “No person shall be twice
put in jeopardy for the same offense.” Ohio Constitution, Article I, Section 10. The
protections afforded by the Ohio and United States Constitutions’ Double Jeopardy
Clauses are coextensive. State v. Martello, 97 Ohio St.3d 398, 2002-Ohio-6661,
780 N.E.2d 250, ¶ 7, citing State v. Gustafson, 76 Ohio St.3d 425, 432, 668 N.E.2d
435 (1996). The Double Jeopardy Clauses protect 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.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d
656 (1969), overruled on other grounds, Alabama v. Smith, 490 U.S. 794, 109 S.Ct.




                                         6
                               January Term, 2017




2201, 104 L.Ed.2d 865 (1989). Here, we are concerned with the protection against
a second prosecution after a conviction.
       {¶ 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).
       {¶ 17} This court has relied on the Blockburger test to determine whether
two prosecutions involve the same offense. “In determining whether an accused is
being successively prosecuted for the ‘same offense,’ the court in Best adopted the
so-called ‘same elements’ test articulated in Blockburger v. United States (1932),
284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 * * *.” Zima at ¶ 18; see also State
v. Delfino, 22 Ohio St.3d 270, 273, 490 N.E.2d 884 (1986). The Blockburger test
applies “where the same act or transaction constitutes a violation of two distinct
statutory provisions” and requires the reviewing court to evaluate the elements of
each statutory provision to determine “whether each provision requires proof of a
fact which the other does not.” Blockburger at 304. “ ‘This test focuses upon the
elements of the two statutory provisions, not upon the evidence proffered in a given
case.’ ” Zima at ¶ 20, quoting State v. Thomas, 61 Ohio St.2d 254, 259, 400 N.E.2d
897 (1980), overruled on other grounds, State v. Crago, 53 Ohio St.3d 243, 559
N.E.2d 1353 (1990), syllabus. The United States Supreme Court has summarized
the Blockburger test as an inquiry that asks “whether each offense contains an
element not contained in the other; if not, they are the ‘same offence’ and double




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jeopardy bars additional punishment and successive prosecution.” United States v.
Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 125 L.Ed.2d 556, (1993).
        {¶ 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); and
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 R.C. 2927.12 contained two elements: first, that the
Mutters committed the predicate offense of aggravated menacing in violation of
R.C. 2903.21 and second, that they committed that offense by reason of the race,
color, religion, or national origin of another person or group of persons. The
offense of ethnic intimidation contains an element that the offense of aggravated
menacing does not, i.e., the racial or ethnic motivation, but aggravated menacing
does not contain any elements that do not also fall within the elements of ethnic
intimidation as charged in this case.
        {¶ 20} Ethnic intimidation can be committed by violating, with the requisite
racial or ethnic animus, R.C. 2903.21 (aggravated menacing), 2903.22 (menacing),
2909.06 (criminal damaging or endangering), 2909.07 (criminal mischief), or
2917.21(A)(3), (4), or (5) (telecommunications harassment). In this case, the state
indicted the Mutters alleging only one predicate offense—aggravated menacing in
violation of R.C. 2903.21—in the ethnic-intimidation charge.            Aggravated
menacing therefore serves as one of the two elements of the ethnic-intimidation
charges that were brought against the Mutters. But the aggravated menacing
charges that the Mutters were previously convicted of did not contain any additional
elements that are not also included in the charges of ethnic intimidation that arose
from the same facts. We reach this conclusion because the state conceded at oral




                                         8
                                January Term, 2017




argument that the aggravated-menacing charges and ethnic-intimidation charges
arose out of the same incident. Without the benefit of the state’s concession, the
court of appeals concluded that there was no evidence in the record to support the
conclusion that the aggravated-menacing charges and ethnic-intimidation charges
arose out of the same incident. 2016-Ohio-512, ¶ 29. Here, aggravated menacing
does not require proof of a fact that is not required to prove ethnic intimidation. See
Blockburger at 304. Therefore, in this case, according to the Blockburger test,
ethnic intimidation and aggravated menacing are the “same offenses” for double-
jeopardy purposes. Id.
       {¶ 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 Fifth Amendment
forbids successive prosecution and cumulative punishment for a greater and lesser
included offense.” Id. at 169. This court has also recognized, relying on Brown,
that a conviction for a lesser included offense bars prosecution for a greater offense.
“[D]ouble-jeopardy principles barred the state from pursuing the grand theft
charges because the trial court’s finding of guilt on the lesser-included offenses
operated as an acquittal of the greater offenses.” State v. Edmondson, 92 Ohio St.3d
393, 395, 750 N.E.2d 587 (2001), citing Brown at 161.
       {¶ 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




                                          9
                             SUPREME COURT OF OHIO




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 same offense under Ohio law, aggravated
menacing and ethnic intimidation are the same offense under Ohio law. Here, both
Mutters were convicted of aggravated menacing, which is a lesser included offense
of ethnic intimidation, so based on the principles in Brown and Blockburger, a
further prosecution is barred by the Double Jeopardy Clauses of the United States
and Ohio Constitutions.
                                 IV. Conclusion
         {¶ 23} The double-jeopardy protections of the Fifth Amendment,
applicable to the states under the Fourteenth Amendment, and Article I, Section 10
of the Ohio Constitution prohibit multiple prosecutions for the same offense.
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. Consequently, we
reverse the judgment of the court of appeals and reinstate the judgment of the trial
court.
                                                                Judgment reversed.
         O’DONNELL, FRENCH, O’NEILL, FISCHER, and DEWINE, JJ., concur.
         O’CONNOR, C.J., concurs in judgment only.
                               _________________
         Mark E. Kuhn, Scioto County Prosecuting Attorney, and Jay S. Willis,
Assistant Prosecuting Attorney, for appellee.




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                                  January Term, 2017




       Timothy Young, Ohio Public Defender, and Peter Galyardt, Assistant State
Public Defender, for appellant.
       Ron O’Brien, Franklin County Prosecuting Attorney, and Michael P.
Walton, Assistant Prosecuting Attorney, urging affirmance for amicus curiae,
Franklin County Prosecutor Ron O’Brien.
                              _________________




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