                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                           STATE V. BIXBY


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                                  STATE OF NEBRASKA, APPELLEE,
                                                  V.

                                     CLAY BIXBY, APPELLANT.


                               Filed March 3, 2020.     No. A-19-237.


       Appeal from the District Court for Grant County: TRAVIS P. O’GORMAN, Judge. Affirmed.
       Bell Island, of Island Law Office, P.C., L.L.O., for appellant.
       Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.


       PIRTLE, RIEDMANN, and BISHOP, Judges.
       PIRTLE, Judge.
                                         INTRODUCTION
        Clay Bixby appeals the order of the district court for Grant County which denied his plea
in bar following a mistrial. For the reasons that follow, we affirm.
                                          BACKGROUND
         Bixby was charged with driving under the influence of alcohol (DUI), third offense;
possession of an open container; and driving on the shoulder. The matter was set for a jury trial on
October 24, 2018, and a jury panel was sworn and a jury was selected. Prior to the commencement
of trial, the district court heard evidentiary motions outside the presence of the jury. The district
court ruled that a video of the traffic stop at issue was not admissible at trial. Though the record is
unclear of the details, the parties do not dispute that the prosecuting attorney was upset by the
court’s ruling.




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        During the direct examination of the State’s first witness, the prosecutor asked questions
intended to elicit testimony regarding Bixby’s prior offenses. The witness answered the question,
stating that Bixby had prior DUI convictions, before Bixby’s trial counsel was able to object.
Bixby’s trial counsel immediately moved for a mistrial, which the district court granted. The
prosecuting attorney stated that he believed the prior convictions were part of the elements he had
to prove.
        Bixby filed a plea in bar alleging that the mistrial was “caused by the intentional conduct
of the State causing the Mistrial.” The State also filed a motion for retrial and motion for case
progression. The matters were set for hearing on December 10, 2018.
        At the hearing, the following exhibits were offered and received into evidence: a partial
transcript of the bench conference regarding the motion for mistrial, two affidavits of Bixby’s trial
counsel, and an affidavit of the prosecuting attorney. After hearing the arguments of both parties,
the district court made factual findings on the factors set forth in State v. Muhannad, 286 Neb. 567,
837 N.W.2d 792 (2013) (Muhannad I), and State v. Williams, 24 Neb. App. 920, 901 N.W.2d 334
(2017). Specifically, the district court found that “[t]he pertinent inquiry is the subjective intent of
the prosecutor” and found that the prosecuting attorney did not have the intent to goad Bixby into
moving for mistrial. The court found credible the prosecuting attorney’s assertion that he was
inexperienced in criminal law and “mistakenly believed proof of the prior convictions was an
element of required proof for the offense.” Accordingly, the district court denied Bixby’s plea in
bar. This appeal followed.
                                    ASSIGNMENT OF ERROR
        Bixby’s only assignment of error is that the district court erred in denying his plea in bar.
                                     STANDARD OF REVIEW
        Issues regarding the grant or denial of a plea in bar are questions of law. State v. Bedolla,
298 Neb. 736, 905 N.W.2d 629 (2018). On a question of law, an appellate court reaches a
conclusion independent of the court below. Id.
        While the denial of a plea in bar generally involves a question of law, we review under a
clearly erroneous standard a finding concerning the presence or absence of prosecutorial intent to
provoke the defendant into moving for a mistrial. State v. Muhannad, 290 Neb. 59, 858 N.W.2d
598 (2015) (Muhannad II).
                                             ANALYSIS
        Bixby argues that the district court erred in denying his plea in bar, and the State should be
prohibited from retrying him under the Double Jeopardy Clause of both the Nebraska and U.S.
Constitutions. We disagree.
        The general rule is that where a court grants a mistrial upon a defendant’s motion, the
Double Jeopardy Clause does not bar a retrial. Muhannad II, supra. A defendant’s motion for a
mistrial constitutes a deliberate election on his or her part to forgo the right to have the trial
completed before the first trier of fact. Id. This is true even if the defendant’s motion is necessitated
by prosecutorial or judicial error. Id.




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        The U.S. Supreme Court set forth a “narrow exception” to this general rule in Oregon v.
Kennedy, 456 U.S. 667, 679, 102 S. Ct. 2083, 72 L. Ed. 2d 416 (1982), holding that where a
defendant moves for and is granted a mistrial based upon prosecutorial misconduct, double
jeopardy bars retrial when the “conduct giving rise to the successful motion for a mistrial was
intended to provoke the defendant into moving for a mistrial.” The Nebraska Supreme Court has
declined to extend the exception in Oregon v. Kennedy beyond situations where the prosecutor
intended that the misconduct would provoke a mistrial. Muhannad I, supra. It is the defendant’s
burden to prove this intent, and the trial court’s finding regarding whether the prosecuting attorney
intended to cause a mistrial is a finding of fact. Id.
        In Muhannad I, the Supreme Court set forth a nonexhaustive list of objective factors for
consideration when determining whether a prosecutor had a subjective intent to provoke the
defense into moving for a mistrial. These factors include, but are not limited to, the following: (1)
whether there was a sequence of overreaching or error prior to the errors resulting in the mistrial;
(2) whether the prosecutor resisted the motion for mistrial; (3) whether the prosecutor testified,
and the court below found, that there was no intent to cause a mistrial; (4) the timing of the error;
(5) whether the record contains any indication that the prosecutor believed the defendant would be
acquitted; (6) whether a second trial would be desirable for the government; and (7) whether the
prosecutor proffered some plausible justification for his or her actions. State v. Williams, 24 Neb.
App. 920, 901 N.W.2d 334 (2017) (citing Muhannad I, supra).
        In this case, the district court considered these factors and acknowledged that “the facts
and circumstances viewed objectively does not look favorably to the prosecution.” The district
court recognized that the adverse ruling against the prosecution, excluding the video of the traffic
stop, increased the likelihood of acquittal and could make a second trial desirable for the State.
The district court also acknowledged that the testimony the prosecuting attorney elicited from its
only witness, regarding Bixby’s two prior DUI convictions, was clearly improper and
inadmissible. Nevertheless, the district court found that the “pertinent inquiry is the subjective
intent of the prosecutor and a determination must be made whether the prosecutor had the
subjective intent to cause a mistrial and subvert the protections afforded by the Double Jeopardy
Clause.”
        In applying this principle, the district court made a factual finding that the prosecutor did
not have the subjective intent to provoke a mistrial. In fact, in its order, the district court noted that
“[n]obody was more surprised in the courtroom when the mistrial was granted than the
prosecutor.” The court recognized the prosecutor’s negligence, but acknowledged his inexperience
in criminal law prior to his position as county attorney and that this was only his second trial on a
DUI offense. The record before us does not demonstrate a pattern of overreaching or error prior to
the questioning resulting in the mistrial. The prosecutor submitted an affidavit and stated on the
record that he had no intention of causing a mistrial. The prosecutor’s affidavit also detailed his
limited criminal law experience. Based on these considerations, and the district court’s observation
of the participants (including the prosecuting attorney), we cannot say that the district court’s
finding concerning the absence of prosecutorial intent to provoke a mistrial was clearly erroneous.
The trial court is in a better position than an appellate court to judge the motives and intentions of
the prosecutor, and we defer to its judgment in this case. Muhannad I, supra. Absent an intent to



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goad the defendant into moving for mistrial, double jeopardy does not bar retrial where the
prosecutor simply made an “error in judgment” or was grossly negligent. Muhannad II, supra.
                                       CONCLUSION
        For the foregoing reasons, we affirm the judgment of the district court denying Bixby’s
plea in bar.
                                                                                     AFFIRMED.




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