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State v. McComas

Court of Appeals of Ohio, Fifth District

July 17, 2013

STATE OF OHIO Plaintiff-Appellee
v.
DANIEL MCCOMAS Defendant-Appellant

Appeal from the Court of Common Pleas, Case No. 2012 CR 08 0217

AMANDA K. MILLER Plaintiff-Appellee

DAN GUINN For Defendant-Appellant

JUDGES: Hon. William B. Hoffman, P.J. Hon. Sheila G. Farmer, J. Hon. John W. Wise, J.

OPINION

Farmer, J.

{¶1} On August 18, 2012, the Tuscarawas County Grand Jury indicted appellant, Daniel McComas, on one count of rape in violation of R.C. 2907.02. Said charge arose from an incident involving a child under the age of thirteen.

{¶2} A jury trial commenced on February 20, 2013. On the morning of February 21, 2013, the state moved for a mistrial based on testimony of the investigating officer given the previous day regarding appellant's willingness to undergo a polygraph examination. The trial court granted the motion.

{¶3} A second trial commenced on February 25, 2013. The jury found appellant guilty as charged.[1] By judgment entry filed February 28, 2013, the trial court sentenced appellant to twenty-five years to life, and classified him as a Tier III sex offender.

{¶4} Appellant filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows:

I

{¶5} "THE TRIAL COURT ERRED IN GRANTING THE APPELLEE'S MOTION FOR A MISTRIAL DUE TO STATEMENTS REGARDING POLYGRAPH EXAMINATIONS."

II

{¶6} "THE FINDING THAT THE APPELLANT WAS GUILTY OF RAPE PURSUANT TO ORC 2907.02(A)(1)(b) WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."

III

{¶7} "THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S MOTION IN LIMINE TO EXCLUDE NEW EVIDENCE THAT THE PROSECUTION REVEALED AFTER THE CONCLUSION OF THE FIRST TRIAL."

I

{¶8} Appellant claims the trial court erred in granting the state's motion for mistrial. We disagree.

{¶9} The decision whether or not to grant a mistrial rests in a trial court's sound discretion. State v. Glover, 35 Ohio St.3d 18 (1988). In order to find an abuse of discretion, we must determine the trial court's decision was unreasonable, arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983).

{¶10} Appellant argues the prosecutor failed to make the motion for mistrial immediately after an objection was sustained by the trial court during the first trial, and the prosecutor used the motion as a tool to get a second bite of the apple because the case "was not going well" for the state. The testimony at issue was of the investigating officer, John Gray, on cross-examination by defense counsel (T. I at 204-205):

Q. Okay. So he, he [appellant] came right over within the next hour? A. Yep.
Q. He was cooperative? A. Yep.
Q. And he said he didn't ...

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