[Cite as State v. Hodges, 2018-Ohio-447.]
                           STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT


STATE OF OHIO,                                )    CASE NO. 17 MA 0025
                                              )
        PLAINTIFF-APPELLEE,                   )
                                              )
VS.                                           )    OPINION
                                              )
KIMANI O. HODGES,                             )
                                              )
        DEFENDANT-APPELLANT.                  )

CHARACTER OF PROCEEDINGS:                          Criminal Appeal from the Court of
                                                   Common Pleas of Mahoning County,
                                                   Ohio
                                                   Case No. 16 CR 00169

JUDGMENT:                                          Affirmed.

APPEARANCES:

For Plaintiff-Appellee:                            Atty. Paul J. Gains
                                                   Mahoning County Prosecutor
                                                   Atty. Ralph M. Rivera
                                                   Assistant Prosecuting Attorney
                                                   21 West Boardman St., 6th Floor
                                                   Youngstown, Ohio 44503

For Defendant-Appellant:                           Atty Edward A. Czopur
                                                   DeGenova & Yarwood, Ltd.
                                                   42 N. Phelps St.
                                                   Youngstown, Ohio 44503
JUDGES:

Hon. Carol Ann Robb
Hon. Gene Donofrio
Hon. Cheryl L. Waite

                                                   Dated: January 30, 2018
[Cite as State v. Hodges, 2018-Ohio-447.]
ROBB, P.J.


        {¶1}     Defendant-Appellant Kimani Hodges appeals the decision of the
Mahoning County Common Pleas Court denying his motion to dismiss his criminal
case on double-jeopardy grounds. Appellant contends the prosecutor engaged in
misconduct and intentionally goaded the defense into seeking a mistrial, which
triggered the exception to the doctrine allowing retrial after a court grants a
defendant’s mistrial motion. For the following reasons, the trial court’s judgment is
affirmed.
                                  STATEMENT OF THE CASE
        {¶2}     On February 17, 2016, Jason Fonseca was shot multiple times in front
of his house. That same day, Appellant was arrested and charged with the murder.
On February 25, 2016, Appellant was jointly indicted with Angel Bell on a count of
aggravated murder for purposely causing the victim’s death with prior calculation and
design. A firearm specification was attached to the charge. Appellant was also
indicted for having a weapon while under disability, and he waived his right to a jury
trial on this offense.
        {¶3}     The joint jury trial for the aggravated murder count commenced on
January 3, 2017, on which date a jury was impaneled and sworn.                The state
presented evidence on January 4 and 5, 2017. Partway through the state’s case,
Noel Rios was called as a witness. He explained he was dressed in orange as he
was a federal prisoner. (Tr. 266-267). The victim was his cousin, and he witnessed
the daylight shooting as he stood outside near the scene. (Tr. 268-269). He said:
Appellant pulled up in a vehicle; Appellant spoke to him; the victim came out of the
house and argued with Appellant; Appellant brandished a gun; the victim and
Appellant tussled over the gun; and multiple shots were fired into the victim, including
after he had fallen.         (Tr. 270-273).   Rios also said Ms. Bell was sitting in the
passenger seat of the car from which Appellant alighted. (Tr. 274-275, 287).
        {¶4}     Appellant’s counsel began cross-examining Mr. Rios.          (Tr. 277).
Counsel raised some inconsistencies in his testimony as compared to his statement
to police.     Rios watched his video statement, and cross-examination continued.
                                                                                    -2-

Counsel then paraphrased an answer given by Rios in the video statement and
invited the witness, “correct me if I’m wrong.” Responding to the invitation, Mr. Rios
added the part of his answer he believed counsel was omitting. (Tr. 293). Counsel
then repeated his statement in question form, which Rios answered and again added
the omitted part of his statement: “Yeah, I said he was about my height”. At this
point, counsel admonished the witness, “Once again I’m asking the questions.” The
court then interjected, “Excuse me. What did I tell you? Do you want the witness
instructed?” Counsel replied, “Judge, you’re right. I apologize.” (Tr. 294).
      {¶5}   The court instructed the witness to just answer the question asked. The
witness then repeatedly voiced he had nothing more to say. When counsel said the
witness should be instructed to answer or face the consequences, the witness said
he was already facing 15 years. (Tr. 295). The court then allowed the defense to
play for the jury the video of the witness’s statement to police. Rios was then brought
back to the stand. The court noted each side had the right to ask questions and
added, “They don’t have a right to ask you, to keep asking you the same question
over and over.” Rios responded, “Well, that’s how I feel.” (Tr. 300). The witness
insisted he had “no more to tell” and was not answering any more questions. (Tr.
301-303).    He swore at Appellant’s attorney using a disturbing and strange
suggestion. (Tr. 302). The court committed the witness to jail for contempt until he
answered the questions.
      {¶6}   Defense counsel moved to strike the testimony of Rios in its entirety
and to instruct the jury to disregard his entire presence at trial. Counsel said a
mistrial was required if the motion to strike was not granted. (Tr. 305). Counsel for
co-defendant Bell then attempted to question Rios, but he would not respond. (Tr.
308-309). The court contemplated having the witness meet with an attorney or his
federal public defender, but the defense objected. (Tr. 315-317, 320-321). Once
again, the witness was brought to the stand, and he indicated he was not willing to
answer questions. (Tr. 327). The court recessed for over 1.5 hours. (Tr. 328).
      {¶7}   When the case resumed, the motion to strike was addressed.
Appellant’s attorney indicated the witness stopped participating before he completed
                                                                                         -3-

cross-examination and thus Appellant’s confrontation rights were violated. (Tr. 329).
The court found Bell’s right to confrontation was violated as her attorney was unable
to engage in any cross-examination. (Tr. 330). The court noted Appellant’s attorney
engaged in cross-examination on various topics and asked counsel to explain what
more he would have asked. (Tr. 331). Counsel set forth some examples. The state
characterized the argument as counsel complaining “he wasn’t allowed to ask
enough times, and again and again; and badger this witness and make this witness
more upset.” (Tr. 339). The state noted “asked and answered” was a common court
instruction to counsel during cross-examination. (Tr. 340).
       {¶8}   The court granted Appellant’s motion to strike the testimony of the
witness. (Tr. 343). The state then announced it reached an agreement with Bell
calling for: the state to take a proffer from Bell; she would agree to testify truthfully in
Appellant’s case; and in return, the state would dismiss all charges against her with
prejudice and release her immediately.        (Tr. 343-345).    The court discussed the
agreement with Bell and accepted the dismissal of the case against her.
       {¶9}   Appellant’s attorney moved for a mistrial. Noting the change in the
evidence against his client, he emphasized the case would have been presented to
the jury in a different fashion if this new evidence was available before trial. (Tr. 348).
He said he had no idea what Bell’s testimony would be because her prior statements
to police denied any involvement and said Appellant was with her during the incident.
(Tr. 348-349). When the court asked if the state wished to be heard on the mistrial
motion, the state indicated it did not. The court then asked, “Are you expecting me to
grant it?” (Tr. 349). The state replied the decision was expected because defense
counsel did not yet view Bell’s new statement. (Tr. 349-350).
       {¶10} The trial court granted a mistrial on Appellant’s motion, excused the
jury, and remanded Appellant to custody pending further order. The court declined to
address, at that time, the suggestion by the defense that double jeopardy barred
retrial. (Tr. 350). The court memorialized the occurrences and the granting of a
mistrial in a January 9, 2017 judgment entry.
                                                                                       -4-

       {¶11} On January 23, 2017, Appellant filed a motion to dismiss on double-
jeopardy grounds. He suggested the state’s failure to prepare Rios for trial resulted
in the witness’s refusal to participate, alleging this was foreseeable. He said he had
no choice but to seek a mistrial due to the co-defendant becoming a key witness mid-
trial without prior notice. Appellant said the state should have sought Bell’s testimony
prior to trial rather than during it. He claimed the exception to the retrial rule applied
because his mistrial motion was precipitated by prosecutorial misconduct intentionally
calculated to cause a mistrial.
       {¶12} The state responded it was surprised by the witness’s reaction at trial
and did not cause it, suggesting defense counsel may have caused the reaction by
“badgering” the witness. The state urged there was no intentional act of deception or
intent to do anything besides present available testimony. The state noted it entered
a deal with “the non-shooter” after the eyewitness refused to continue with cross-
examination and a motion to strike his entire testimony was under consideration. In
writing, both sides waived a hearing on the motion to dismiss.
       {¶13} On February 3, 2017, the trial court denied Appellant’s motion to
dismiss. The court described the situation as “an unusual set of circumstances that
developed during trial.” The court did not agree with the characterization of defense
counsel’s cross-examination as “badgering the witness.” The court found there was
no prosecutorial conduct amounting to an intentional act of deception and the state
did not goad the defendant into moving for mistrial. Appellant filed a timely appeal.
“[T]he denial of a motion to dismiss on double-jeopardy grounds is a final, appealable
order. State v. Anderson, 138 Ohio St.3d 264, 2014-Ohio-542, 6 N.E.3d 23, ¶ 26.
              ASSIGNMENT OF ERROR: DOUBLE JEOPARDY
       {¶14} Appellant’s sole assignment of error provides:
       “Denial of the Appellant’s motion to dismiss violated his protections pursuant
to the Double Jeopardy Clause of the Fifth Amendment of the United States
Constitution as applied by the Fourteenth Amendment, and Article I, Section 10 of the
Ohio Constitution.”
                                                                                      -5-

       {¶15} Appellant states Rios was the only eyewitness and the state’s case
hinged on his testimony. He complains the state entered a deal with Bell only after
realizing they no longer had a case.       He notes his attorney could not properly
continue with the trial upon learning the co-defendant would “get up from her table in
the middle of trial and move to the State’s table” with the content of her new
statement unknown.       He was therefore forced to seek a mistrial.           Appellant
emphasizes how the state acknowledged it “expected” a mistrial to be granted.
Appellant says his opportunity to receive an acquittal at this trial was impaired (and
the prosecutor thus gained an advantage at this trial), contending if the state did not
offer the deal to Bell, the trial would have continued and he would have been
acquitted. He complains the state goaded him to seek a mistrial by offering Bell a
deal mid-trial and concludes the offer constituted prosecutorial misconduct because
the state knew it would necessitate the discontinuation of trial.
       {¶16} The Fifth Amendment to the United States Constitution, applicable to
the states via the Fourteenth Amendment, provides in pertinent part: “No person
shall * * * be subject for the same offence to be twice put in jeopardy of life or limb.”
Similarly, Ohio’s Constitution at Section 10 of Article I states: “No person shall be
twice put in jeopardy for the same offense.” As the protections afforded by these two
double jeopardy clauses are “coextensive,” the same analysis applies to double
jeopardy claims brought under either constitution. State v. Brewer, 121 Ohio St.3d
202, 2009-Ohio-593, 903 N.E.2d 284, ¶ 14.
       {¶17} The Double Jeopardy Clause protects a criminal defendant from
repeated prosecutions for the same offense. State v. Loza, 71 Ohio St.3d 61, 71,
641 N.E.2d 1082 (1994), citing Oregon v. Kennedy, 456 U.S. 667, 671, 102 S.Ct.
2083, 72 L.Ed.2d 416 (1982). However, the Double Jeopardy Clause does not bar a
retrial when a defendant’s motion for a mistrial is granted. Loza, 71 Ohio St.3d at 71,
citing Kennedy, 456 U.S. at 673.          There is a “narrow exception” where the
defendant’s motion for a mistrial “is precipitated by prosecutorial misconduct that was
intentionally calculated to cause or invite a mistrial.”    Loza, 71 Ohio St.3d at 71,
citing Kennedy, 456 U.S. at 678-679.
                                                                                         -6-

       {¶18} To invoke the exception, there must be prosecutorial misconduct
accompanied by prosecutorial intent. Kennedy, 456 U.S. at 675-676 (“Prosecutorial
conduct that might be viewed as harassment or overreaching, even if sufficient to
justify a mistrial on defendant's motion, therefore, does not bar retrial absent intent on
the part of the prosecutor to subvert the protections afforded by the Double Jeopardy
Clause.”).   “Only where the prosecutorial conduct in question is intended to ‘goad’
the defendant into moving for a mistrial may defendant raise the bar of double
jeopardy to a second trial after having succeeded in aborting the first on his own
motion.” Loza, 71 Ohio St.3d at 71, quoting Kennedy, 456 U.S. at 676. As the state
points out, a retrial is not barred on double jeopardy grounds where the state’s mere
negligence, rather than intentional misconduct, required the trial court to grant a
mistrial on a defense motion. State v. Wood, 114 Ohio App.3d 395, 400, 683 N.E.2d
354 (10th Dist.1996), citing United States v. Dinitz, 424 U.S. 600, 607,611, 96 S.Ct.
1075, 47 L.Ed.2d 267 (1976) (where circumstances develop not attributable to
prosecutorial misconduct, the defendant’s motion for mistrial ordinarily removes any
barrier to re-prosecution, even if the motion is necessitated by prosecutorial error).
       {¶19} In Loza, the state failed to disclose a chemical analysis report until the
morning of the last day of trial because the prosecution was not aware of it until that
time. The Supreme Court found no indication the state engaged in an intentional act
of deception or intentionally withheld exculpatory evidence. Loza, 71 Ohio St.3d at
72. The concern was not whether (at the time of disclosure) the state expected the
new report would require the defense to seek a mistrial.          The concern was not
whether the state intentionally disclosed the report when it was discovered but was
whether the state intentionally withheld the report in order to goad a mistrial.
       {¶20} The state’s expectation in a certain case may be a consideration in
determining the state’s intent. See, e.g., State v. Greene, 7th Dist. No. 02 CA 122,
2005-Ohio-4240, ¶ 24 (noting a concurring justice suggested some factors which
could be relevant), citing Kennedy, 456 U.S. at 680 (Powell, J., concurring).
Nevertheless, when the co-defendant presents herself to the state with an important
and previously-unknown story after the joint trial commenced, the state’s disclosure
                                                                                       -7-

of the situation and dismissal of the co-defendant’s charges need not be categorized
as intentionally calculated to cause a mistrial merely because an attorney in this
situation would expect a trial court to grant a mistrial request by the defense. See
Greene, 7th Dist. No. 02 CA 122 at ¶ 4-5 (finding no intentional conduct by the state
where a witness who appeared for trial brought with her a new witness, who was
previously mentioned to the prosecution but unnamed). See also United States v.
Papajohn, 848 F.Supp. 334, 339-340 (E.D.N.Y.1994) (rejecting a defendant’s claim
that the prosecutor intentionally goaded a mistrial by insisting on going forward with
new evidence which clearly left defense counsel with no choice but to request a
mistrial). What ultimately matters is whether the defendant’s mistrial request was
precipitated by prosecutorial misconduct intentionally calculated to provoke a mistrial.
Loza, 71 Ohio St.3d at 71, citing Kennedy, 456 U.S. at 678-679.
       {¶21} Here, the initial situation faced at trial was a key witness’s refusal to
continue answering questions during cross-examination by Appellant’s attorney. This
was not a foreseeable situation. In fact, the witness testified on direct examination
from pages 266-277 of the transcript. He also testified on cross-examination by
Appellant’s counsel, encompassing pages 277-294 of the transcript. Bell’s attorney
was unable to question the witness at all. His refusal to participate further in the trial
had nothing to do with the state’s conduct.           In addition, the state protested
Appellant’s motion to strike the eyewitness’s testimony on the grounds that Appellant
had sufficient opportunity to cross-examine the witness and this questioning
prompted the witness’s extreme response. (A motion to strike by Bell was more
difficult to protest.) In discussing a way to encourage the witness to resume his
participation in the trial, Appellant objected to any attempt to inform the witness that
his testimony might be eliminated from the trial if he refused to continue with cross-
examination or that he was a key witness in the case of his cousin’s murder.
       {¶22} Appellant complains the state did not offer his co-defendant this deal
prior to trial, suggesting mid-trial is too late to deal with co-defendants. There is no
indication Bell would have turned against her boyfriend prior to trial. According to
defense arguments, she provided Appellant with an alibi in two statements to police.
                                                                                                   -8-

The state had less incentive to accept a deal from her or offer her a deal prior to trial.
Considering the contextual evidence collected before trial and Bell’s provision of an
alibi for Appellant, the state believed Bell instructed her new boyfriend (Appellant) to
shoot her former boyfriend (the victim). During trial, however, the state was faced
with the situation of Bell being unable to confront her accuser and the defense
moving to strike this key witness’s testimony in full.
        {¶23} The trial court concluded the state engaged in no act amounting to an
intentional act of deception and the state did not goad Appellant into moving for a
mistrial.   Entering the deal with the co-defendant did not involve prosecutorial
misconduct.      The prosecution did not have a statement from Bell incriminating
Appellant prior to trial. Rather, Bell had given statements protecting Appellant and
herself. The state was provided a new statement by Bell at trial (with conditions). As
this new statement did not previously exist, the state did not fail to disclose evidence
(let alone intentionally withhold evidence). The prosecutor was merely accepting and
disclosing new evidence and new circumstances presented to the prosecution mid-
trial; there was no indication of bad faith. See, e.g., State v. Hill, 1st Dist. No. C-
971098 (Feb. 19, 1999) (rejecting a defendant’s claim that the prosecutor deliberately
goaded the defense into requesting a mistrial because the prosecutor insisted on
using new, previously undiscovered evidence). See also Greene, 7th Dist. No. 02
CA 122 (named witness appeared to testify at trial and brought with her another
previously-unnamed witness).1
        {¶24} Moreover, the trial court could properly conclude the prosecutor’s intent
was not to goad the defendant into moving for a mistrial.                   Obviously, there is a
prosecutorial motive to introduce incriminating evidence against a defendant. This
prosecutorial motive did not equal an intent to create error in order to force a new trial


1 The Supreme Court of Indiana upheld a decision finding no double jeopardy violation on the grounds
that the prosecutor’s plea deal with the co-defendant during the defendant’s trial was performed in
order to convict the defendant, not to goad him into moving for a mistrial. Butler v. State, 724 N.E.2d
600, 604 (Ind.2000) (even where mid-trial negotiations were a revival of prior discussions). See also
State v. Dickens, 187 Ariz. 1, 12, 926 P.2d 468, 479 (1996) (Arizona Supreme Court found the state’s
entry into a plea agreement with the co-defendant after the state rested in the defendant’s case was
not bad faith; where the trial court permitted the state to reopen its case).
                                                                                        -9-

under the circumstances of this case. The intent by the prosecutor was to convict the
defendant with the co-defendant’s testimony.           The state did not gain material
advantage from the mistrial itself. For instance, the state could have proceeded
through the in-progress trial with Bell’s case dismissed and Bell as the state’s
witness.    However, because this situation would negatively affect Appellant’s
defense, Appellant asked for and was granted a mistrial. In fact, Appellant had asked
for the declaration of a mistrial if the trial court refused to grant Appellant’s motion to
strike the eyewitness’s testimony, and this was before there was any indication Bell
would strike a deal with the prosecution. (Tr. 305).
       {¶25} Notably, the state was still presenting its case-in-chief.       In addition,
although Bell was not on the state’s witness list, she was a jointly indicted co-
defendant. Appellant therefore knew of her status as a potential witness. She could
have testified in her own defense and incriminated Appellant.
       {¶26} In sum, this court concludes prosecutorial misconduct is lacking and the
conduct at issue was not performed with intent to precipitate a mistrial.
Consequently, retrial is not barred under double jeopardy principles. In accordance,
the trial court’s judgment is affirmed.



Donofrio, J., concurs.

Waite, J., concurs.
