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State v. Truhlar

Court of Appeals of Ohio, Eighth District, Cuyahoga

December 14, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
MATTHEW TRUHLAR DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-13-576248-A

          ATTORNEY FOR APPELLANT Russell S. Bensing

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor Brett Hammond Denise J. Salerno Katherine Mullin Assistant County Prosecutors

          BEFORE: Keough, A.J., Celebrezze, J., and Jones, J.

          JOURNAL ENTRY AND OPINION

          KATHLEEN ANN KEOUGH, A.J.

         {¶1} Defendant-appellant, Matthew Truhlar, appeals the trial court's decision denying his motion to dismiss the indictment on Double Jeopardy grounds. For the reasons that follow, we affirm the trial court's decision.

         {¶2} In July 2013, Truhlar was indicted for rape, gross sexual imposition, and two counts of kidnapping that allegedly occurred in 1993. After the court denied Truhlar's motion to dismiss the indictment for preindictment delay, the matter proceeded to a bench trial. The trial court granted Truhlar's Crim.R. 29 motion for judgment of acquittal on the gross sexual imposition, and the remaining charges were taken under advisement by the court following the close of all the evidence.

         {¶3} Five days later, the state moved to "supplement the trial record" with the victim's medical records. Truhlar moved for a mistrial and also renewed his motion for preindictment delay. Following a hearing on the pending motions, the trial court granted Truhlar's motion for a mistrial and dismissed the case with prejudice. The state appealed and Truhlar cross-appealed.

         {¶4} In State v. Truhlar, 8th Dist. Cuyahoga No. 103312, 2016-Ohio-5338, this court upheld the trial court's decision granting Truhlar's motion for a mistrial, but reversed the trial court's decision dismissing the case with prejudice.[1] In analyzing the issue, this court noted that the Double Jeopardy Clause does not bar reprosecution in every case. "Where a defendant requests a mistrial, double jeopardy does not bar a retrial unless the defendant's request for mistrial is precipitated by prosecutorial misconduct intended to provoke a defendant into seeking a mistrial." Id. at ¶ 34, citing N. Olmsted v. Himes, 8th Dist. Cuyahoga Nos. 84076 and 84078, 2004-Ohio-4241, ¶ 36-37. This court found that "the state did not invite a mistrial, " and therefore, the case should not been dismissed. Id. at ¶ 36. Accordingly, this court remanded the case back to the trial court for retrial. Id. . at ¶ 47.

         {¶5} Following our decision in Truhlar I, the case was remanded to the trial court. Truhlar filed a motion to dismiss, arguing that a retrial would violate his constitutional right against double jeopardy because the mistrial was provoked by the prosecution. The trial court denied his motion, concluding that the state did not provoke the mistrial.

         {¶6} Truhlar appeals this decision, contending in his sole assignment of error that the trial court erred in denying his motion to dismiss.

         {¶7} As this court stated in Truhlar I,

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment, protects a criminal defendant from multiple prosecutions for the same offense. Oregon v. Kennedy, 456 U.S. 667, 671, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982).
The Double Jeopardy Clause does not, however, bar reprosecution in every case. Where a defendant requests a mistrial, double jeopardy does not bar a retrial unless the defendant's request for a mistrial is precipitated by prosecutorial misconduct intended to provoke a defendant into seeking a mistrial. N. Olmsted ...

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