[Cite as State v. Truhlar, 2016-Ohio-3453.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 103312


                                       STATE OF OHIO
                                                    PLAINTIFF-APPELLANT/
                                                    CROSS-APPELLEE

                                              vs.

                                 MATTHEW TRUHLAR
                                                    DEFENDANT-APPELLEE/
                                                    CROSS-APPELLANT




                               JUDGMENT:
                   AFFIRMED IN PART, REVERSED IN PART,
                             AND REMANDED


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

        BEFORE: Boyle, J., E.T. Gallagher, P.J., and Stewart, J.

        RELEASED AND JOURNALIZED: June 16, 2016
ATTORNEYS FOR APPELLANT/
CROSS-APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Brett Hammond
         Amy Venesile
Assistant County Prosecutors
Justice Center
1200 Ontario Street
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE/
CROSS-APPELLANT

Russell S. Bensing
1360 East 9th Street
Suite 600
Cleveland, Ohio 44114
MARY J. BOYLE, J.:

       {¶1} Plaintiff-appellant, state of Ohio, appeals from a judgment dismissing its

case against defendant-appellee, Matthew Truhlar, with prejudice.     The state raises four

assignments of error for our review:

       1. The trial court abused its discretion when it dismissed the state’s case.

       2. To the extent that the trial court dismissed this case with prejudice
       based on a claim of pre-indictment delay, the trial court abused its
       discretion.

       3. The trial court abused its discretion by failing to hold a full hearing on
       defendant’s motion for pre-indictment delay.

       4. The trial court abused its discretion when it concluded that St.
       Vincent’s Charity utterly failed to exercise due diligence and attributed that
       lack of due diligence to the state.

       {¶2} Truhlar cross-appeals, raising one assignment of error, arguing that the trial

court erred in denying his motion for mistrial.

       {¶3} After review, we find merit to the state’s first assignment of error in part,

i.e., we agree that the trial court should not have dismissed the case with prejudice. We

further find Truhlar’s cross-assignment of error moot as the trial court already granted

Truhlar’s motion for mistrial.

I. Procedural History and Factual Background

       {¶4} In July 2013, Truhlar was indicted on four counts: one count of rape in

violation of R.C. 2907.02(A)(2), one count of gross sexual imposition in violation of R.C.
2907.05(A)(1), and two counts of kidnapping in violation of R.C. 2905.01(A)(2) (with a

sexual motivation specification) and 2905.01(A)(4).         He pleaded not guilty to the

indictment.

       {¶5} The charges stemmed from an alleged rape that the victim reported to her

parents and police in July 1993; the victim was 15 years old at that time. A rape kit was

collected at St. Alexis Hospital within several hours of the alleged attack. The victim

did not know her attacker. In April 2013, the Ohio Bureau of Criminal Identification

and Investigation (“BCI”) found that DNA collected as part of the victim’s rape kit

matched Truhlar’s DNA.       Truhlar was subsequently indicted one day before the 20-year

statute of limitations had run.

       {¶6} Before trial, Truhlar moved to dismiss the indictment against him based on

preindictment delay. The trial court denied his motion, finding that Truhlar had not

established that he was actually prejudiced by the delay.

       {¶7} Before trial, Truhlar waived his right to a jury trial.   The following facts

were presented to the bench.

       {¶8} At trial, the state presented three witnesses: the victim, the police officer

who interviewed the victim in 1993, and a special investigator for the state who “is

involved in the CODIS cold case initiative.” The victim testified that on the day of the

rape, she walked to a convenience store around 5:00 p.m. After she left the store, she

started walking home “the long way around” to be “out longer.”     She said that she turned

left on Track Road, which was about three city blocks from her house.      While she was
walking on Track Road, an unknown male grabbed her from behind.             She recalled the

male taking her to “a field.”   Once at the field, the male “stuck his penis in [her] vagina”

against her will.    The victim could not recall if her attacker touched her anywhere else.

The victim kicked the male in his groin and was able to get away.

       {¶9} After the victim got away, she went home.        Her father asked her what took

her so long.    The victim told her parents that she was raped.       They took her to the

emergency room at St. Alexis Hospital, where a rape kit was collected.       After the rape,

she moved to Michigan with her parents. She could not remember anything else about

the attack or the circumstances surrounding the attack.

       {¶10} The victim met with Nicole DeSanto, a special investigator from the

Cuyahoga County Prosecutor’s Office, in July 2013 in Michigan, where she still lived.

Investigator DeSanto showed the victim a photo array that included Truhlar’s photo, but

the victim could not identify anyone in the photo array.

       {¶11} On cross-examination, the victim testified that she told Investigator DeSanto

that she was a victim in two other incidents in Ohio. The victim said that a couple of

years before the rape, she and her friend, Kimberly Kramer, were kidnapped by two

Albanian men.       The victim said that she and Kramer were held hostage for nine days by

the two men.    She could recall that the men gave her water and crackers, but she could

not recall much of anything else. The victim said that she had to testify against the

Albanian men, but she could not recall any other details of the case or hearing.
       {¶12} The victim also told Investigator DeSanto that she ran away from home

when she was 15 years old, but she could not recall if it was before or after the alleged

rape in this case.   The victim said that she ran away because of family problems.   When

she went back to her parents’ home, her father was not happy with her.         She told her

father that her boyfriend at that time had hit her and kidnapped her.

       {¶13} Officer Shelly Patena testified that she responded to St. Alexis Hospital in

July 1993, and was responsible for authoring the initial report and collecting the rape kit.

Officer Patena identified a report that she had authored regarding the alleged rape.

Officer Patena did not have any independent recollection of the report, but after reading

her report, she recalled some things.      The report indicated that the rape occurred at

“Track and Victor Avenue.” The victim described her attacker as “wearing a black

T-shirt, had brown, long hair with a long ponytail and a tattoo on the forearm.”        The

report further indicated that one of the victim’s family members gave the name of a

possible suspect, Cecil Terkowski.

       {¶14} Investigator DeSanto testified that her office received a “hit letter”

indicating that Truhlar’s DNA that had been taken in 2002 matched the DNA taken from

the rape kit provided by the victim in this case.

       {¶15} Investigator DeSanto obtained a HIPPA release from the victim to acquire

the victim’s medical records.    But Investigator DeSanto explained that she had not been

able to procure the records. St. Alexis Hospital had closed; St. Vincent Charity Hospital
was now the custodian of records for St. Alexis Hospital. But St. Vincent Charity

Hospital could not find the victim’s medical records.

       {¶16} Investigator DeSanto testified that she was not able to find any information

regarding the victim’s alleged kidnapping by Albanians.

       {¶17} Investigator DeSanto met with Truhlar. She showed him a photo of the

victim.   He said that he did not recognize her, nor did he have any “consensual acts”

with the victim. Truhlar gave Investigator DeSanto many possible alibis.       Truhlar told

Investigator DeSanto that he would have been with his wife at the time of the alleged rape

because his wife had just had a baby. He also told Investigator DeSanto that he was not

sleeping around at that time because he was married.      He also said that in July 1993, he

worked 4:00 p.m. to midnight Monday through Friday, so he would have been working at

the time of the alleged rape.   Truhlar further told Investigator DeSanto that he had “lost

a partial thumb” at work, and he would have been in a cast at the time of the alleged rape.

       {¶18} Investigator DeSanto testified that she spoke with Truhlar’s ex-wife. She

had a baby in July 1993, but it was two days before the alleged rape.     Truhlar’s ex-wife

could not verify that Truhlar was at the hospital at the time of the rape.      Investigator

DeSanto also could not verify any of Truhlar’s other alibis.

       {¶19} At the close of the state’s case, Truhlar moved for a Crim.R. 29 acquittal.

The trial court granted it as to the gross sexual imposition count, but denied it as to all

other counts.
       {¶20} Kimberly Kramer testified for Truhlar that in 1993, she and the victim were

best friends.   She testified that the “Albanian kidnapping” never occurred.

       {¶21} Truhlar testified that he had met the victim at the Boys and Girls Club. He

said that he was an instructor and she was a student.     Truhlar testified that the day before

the alleged rape, he was playing basketball at Willow School.        He was approached by a

female named “Sue.”1 He and “Sue” flirted and kissed that day. Truhlar and “Sue”

planned to meet again at the school on the following day, which Truhlar said they did.

This time, Truhlar said that they had sex in a hidden doorway to the school. They met

one more time after that for approximately five minutes, where they talked about “Sue”

moving. Truhlar said the school is “two blocks or less” from Track Road.

       {¶22} Truhlar stated that he never had brown hair or a ponytail.

       {¶23} On cross-examination, Truhlar agreed that his thumb was partially cut off in

October 1992, and that the last surgery he had on his thumb was four months prior to July

1993. He agreed that he got tattoos on his forearms in 1992, when he was 18 years old.

       {¶24} At the close of all of the evidence, Truhlar moved for a Crim.R. 29 acquittal

on the remaining counts that the trial court denied.          After the court heard closing

arguments on June 17, 2015, it took the case under advisement.

       {¶25} Five days after the trial ended, on June 22, 2015, the state moved to

“supplement the trial record” with the victim’s medical records.       In its motion, the state


       1
         Sue is not the name testified to by Truhlar. The name that Truhlar testified to was the
victim’s actual middle name, which we will not use here. Instead, we use “Sue” for the ease of
discussion.
indicated that the prosecutor’s office received the records on June 17, 2015, but the

prosecutor on the case did not actually receive them until June 19, 2015.

       {¶26} Following the state’s motion, Truhlar moved for a mistrial and also renewed

his motion for preindictment delay.

       {¶27} The trial court held a hearing on the pending motions in August 2015. At

the close of the hearing, the trial court stated, “at this point, I’m going to declare a mistrial

in this matter.”   It explained that there had been multiple delays in the case due to the

state trying to obtain the victim’s medical records.    The trial court found the matter to be

“ridiculous” and deprived Truhlar of a fair trial.        The trial court then stated: “And

because of the length of delay in this matter, the fact that it goes back to 1993, the fact

that I just find this to be borderline egregious as far as the deprivation, I’m going to grant

the mistrial and dismiss the matter with prejudice.”

       {¶28} In its judgment entry, the court stated that the case was “dismissed with

prejudice.   Hearing held on the defendant’s motion for mistrial.”       It then stated:

       The court heard testimony and evidence regarding the victim’s medical
       records. Following nearly two years of requests to St. Vincent Charity
       Hospital the records of the alleged victim showed up in the prosecutor’s
       office near the conclusion of trial in this matter. The court finds that the
       defendant, in looking at the totality of the circumstances in this matter, was
       deprived of a fair trial. This case has been pending for two years (indicted
       7/23/13) and a major reason for the delay in reaching trial was the lack of
       medical records. The court finds that St. Vincent Charity Hospital, via its
       own employees and through its contracted agent, Healthport, utterly failed
       to exercise due diligence in obtaining the medical records sought by the
       state of Ohio.

       As a result, the defendant suffered delay in his case and was prejudiced by
       being unable to cross-examine the victim at trial via her medical records, or
       to utilize any potentially exculpatory evidence contained in the records.
       This, coupled with the delay in bringing this prosecution due to failure to
       submit the rape kit for testing by officers of the Cleveland Police
       Department in a timely manner, has created a situation wherein justice
       demands dismissal of the action.

       Although the court finds that the state of Ohio did exercise due diligence in
       attempting to obtain the records, the actions of St. Vincent Charity Hospital
       and Healthport are attributed to the state, which has the burden of proof in
       this and any criminal prosecution. As a result, given the fact that a bench
       trial has already taken place, the dismissal of this matter is with prejudice.

       {¶29} It is from this judgment that the state appeals and Truhlar cross- appeals.

II. Mistrial

       {¶30} In its first assignment of error, the state argues that the trial court erred when

it dismissed the case with prejudice “based on the state’s misconduct.” We point out

that the crux of the state’s argument here is not that the trial court erred when it dismissed

the case, but that it erred by dismissing the case with prejudice.           Relevant to this

discussion is the state’s fourth assignment of error, where it argues that the trial court

erred when it “concluded that St. Vincent’s Charity utterly failed to exercise due diligence

and attributed that lack of due diligence to the state.”   Because these two assigned errors

are inextricably intertwined, we will address them together.     In these two arguments, the

state maintains that the dismissal should have been without prejudice. We agree.

       {¶31} In this case, the trial court granted Truhlar’s motion for mistrial after

holding a hearing on the matter.    The granting or denial of a motion for mistrial rests in

the sound discretion of the trial court and will not be disturbed on appeal absent an abuse
of discretion. State v. Treesh, 90 Ohio St.3d 460, 480, 739 N.E.2d 749 (2001), citing

Crim.R. 33, and State v. Sage, 31 Ohio St.3d 173, 182, 510 N.E.2d 343 (1987).

        {¶32} When reviewing matters that are within the trial court’s discretion, we must

keep in mind that “‘[t]he term discretion itself involves the idea of choice, of an exercise

of the will, of a determination made between competing considerations.’”           State v.

Jenkins, 15 Ohio St.3d 164, 222, 473 N.E.2d 264 (1984), quoting Spalding v. Spalding,

355 Mich. 382, 384-385, 94 N.W.2d 810 (1959). To find that a trial court abused that

“choice, the result must be so palpably and grossly violative of fact or logic that it

evidences not the exercise of will but the perversity of will, not the exercise of judgment

but the defiance of judgment, not the exercise of reason but instead passion or bias.”

Nakoff v. Fairview Gen. Hosp., 75 Ohio St.3d 254, 256, 662 N.E.2d 1 (1996).

        {¶33} 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).

        {¶34} 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 v. Himes, 8th Dist.

Cuyahoga Nos. 84076 and 84078, 2004-Ohio-4241, ¶ 36-37.

        {¶35} As this court explained in Himes:
               Generally, there are no double jeopardy considerations when a
       mistrial is declared. State v. Gaines, 8th Dist. Cuyahoga No. 82301,
       2003-Ohio-6855. If a defendant’s motion for mistrial is granted, or the
       trial court sua sponte declares a mistrial, the state is usually not precluded
       from retrying a criminal defendant. United States v. Tateo (1964), 377
       U.S. 463, 467, 12 L.Ed.2d 448, 84 S.Ct. 1587; State v. Loza (1994), 71
       Ohio St.3d 61, 70, 1994-Ohio-409, 641 N.E.2d 1082.

              However, a narrow exception to this rule applies when the
       defendant’s request or the judge’s actions are prompted or instigated by
       prosecutorial misconduct designed to goad the defendant into seeking a
       mistrial. Oregon v. Kennedy, 456 U.S. at 676; State v. Glover (1988), 35
       Ohio St.3d 18, 517 N.E.2d 900.

               “Prosecutorial misconduct, by itself, is not enough to trigger the
       exception to the Double Jeopardy Clause — the state must intend ‘to
       subvert the protections afforded by the Double Jeopardy Clause.’
       Kennedy, supra, 456 U.S. at 675. In other words, only conduct
       ‘intentionally calculated to cause or invite mistrial’ will bar retrial. United
       States v. Thomas (C.A.6, 1984), 728 F.2d 313, 318.” State v. Girts (1997),
       121 Ohio App.3d 539, 551, 700 N.E.2d 395.

Id. at ¶ 36-38.

       {¶36} In this case, the state did not invite a mistrial.   Indeed, the state opposed a

mistrial.    We find no abuse of discretion, however, in the trial court imputing the

hospital’s lack of due diligence to the state (the state’s argument in its fourth assignment

of error).   The trial court was correct that the state has the ultimate burden to prove its

case against Truhlar.    Nonetheless, there is nothing in the record that indicates in any

way that the state intended to goad Truhlar into requesting a mistrial.      Thus, we agree

with the state that the trial court’s granting a mistrial — at Truhlar’s request — should

have been without prejudice.
       {¶37} Alternatively, the state argues that the “trial court could have opted to allow

the parties to reopen the case,” rather than dismiss it. In support of this argument, the

state cites to R.C. 2945.10 and cases applying this statute. This provision sets forth

“order of proceedings of trial,” and states in its entirety:

       The trial of an issue upon an indictment or information shall proceed before
       the trial court or jury as follows:

       (A) Counsel for the state must first state the case for the prosecution, and
       may briefly state the evidence by which the counsel for the state expects to
       sustain it.

       (B) The defendant or the defendant’s counsel must then state the defense,
       and may briefly state the evidence which the defendant or the defendant’s
       counsel expects to offer in support of it.

       (C) The state must first produce its evidence and the defendant shall then
       produce the defendant’s evidence.

       (D) The state will then be confined to rebutting evidence, but the court, for
       good reason, in furtherance of justice, may permit evidence to be offered by
       either side out of its order.

       (E) When the evidence is concluded, one of the following applies regarding
       jury instructions:

              (1) In a capital case that is being heard by a jury, the court
              shall prepare written instructions to the jury on the points of
              law, shall provide copies of the written instructions to the jury
              before orally instructing the jury, and shall permit the jury to
              retain and consult the instructions during the court’s
              presentation of the oral instructions and during the jury’s
              deliberations.

              (2) In a case that is not a capital case, either party may request
              instructions to the jury on the points of law, which
              instructions shall be reduced to writing if either party requests
              it.
        (F) When the evidence is concluded, unless the case is submitted without
        argument, the counsel for the state shall commence, the defendant or the
        defendant’s counsel follow, and the counsel for the state conclude the
        argument to the jury.

        (G) The court, after the argument is concluded and before proceeding with
        other business, shall forthwith charge the jury. Such charge shall be
        reduced to writing by the court if either party requests it before the
        argument to the jury is commenced. Such charge, or other charge or
        instruction provided for in this section, when so written and given, shall not
        be orally qualified, modified, or explained to the jury by the court. Written
        charges and instructions shall be taken by the jury in their retirement and
        returned with their verdict into court and remain on file with the papers of
        the case.

        The court may deviate from the order of proceedings listed in this section.

        {¶38} This statute provides that a trial court may deviate from “the order of

proceedings.” But notably, whether a trial court does so is within its sound discretion.

Columbus v. Grant, 1 Ohio App.3d 96, 97, 439 N.E.2d 907 (1981).

        {¶39} Moreover, Evid.R. 611(A) states that:

        The court shall exercise reasonable control over the mode and order of
        interrogating witnesses and presenting evidence so as to (1) make the
        interrogation and presentation effective for the ascertainment of the truth,
        (2) avoid needless consumption of time, and (3) protect witnesses from
        harassment or undue embarrassment.

        {¶40} Under this evidentiary rule, trial courts also have broad discretion and

control over the order and proceedings of a trial. State v. Presley, 10th Dist. Franklin

No. 02AP-1354, 2003-Ohio-6069, ¶ 44.

        {¶41} Here, the trial court found that the state’s request to supplement the record

with the victim’s medical records was “borderline egregious” in depriving Truhlar of a

fair trial.   The trial court noted that the case had been pending for over two years — in
large part due to the state being unable to obtain the victim’s medical records.    The state

had rested, Truhlar had rested, and both parties had given closing arguments.           After

review, we simply cannot say that the trial court abused its “sound discretion” when it

declined to allow the state to reopen its case to supplement the record with the victim’s

medical records.    Nor can we say that the trial court acted “so palpably and grossly

violative of fact or logic that it evidences not the exercise of will but the perversity of

will, not the exercise of judgment but the defiance of judgment, not the exercise of reason

but instead passion or bias” when it declined to do so. Nakoff, 75 Ohio St.3d at 256, 662

N.E.2d 1. As the Ohio Supreme Court noted, this deferential standard of review is hard

to overcome. See id. And the state did not do so here.

       {¶42} Thus, the state’s first and fourth assignments of error are sustained in part

and overruled in part.

       {¶43} We further find that the state’s remaining two assignments of error are

without merit and summarily overruled as the trial court did not dismiss the case due to

preindictment delay.

III. Truhlar’s Cross-Assignment of Error

       {¶44} In his cross-assignment of error, Truhlar argues that the trial court erred

when it denied his motion for mistrial. We find Truhlar’s argument to be moot because

as we previously stated, the trial court granted Truhlar’s motion for mistrial.

       {¶45} The confusion, however, may stem from the fact that the trial court did not

state in its judgment entry that it granted Truhlar’s motion for mistrial. Instead, it stated,
“Case is dismissed with prejudice. Hearing held on the defendant’s motion for mistrial.”

 We can glean from the transcript of the hearing that the trial court granted Truhlar’s

motion for mistrial, but it failed to say so in its judgment entry. The trial court can

correct this omission, however, by issuing a nunc pro tunc judgment entry to reflect what

actually occurred at the hearing.        See State v. Bonnell, 140 Ohio St.3d 209,

2014-Ohio-3177, 16 N.E.3d 559, ¶ 30 (a judgment can be corrected nunc pro tunc to

reflect what actually occurred at a hearing).

       {¶46} Truhlar’s cross-assignment of error is overruled.

       {¶47} Judgment affirmed in part, reversed in part, and remanded.          The judgment

to dismiss the case is affirmed, but it is reversed with respect to dismissing the case with

prejudice.   This case is remanded to the trial court for it to issue a new judgment entry

dismissing the case without prejudice. We further note that in issuing the new judgment

entry, the trial court should also state via nunc pro tunc that it granted Truhlar’s motion

for a mistrial.

       It is ordered that appellant and appellee share the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the Cuyahoga

County Common Pleas Court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.
MARY J. BOYLE, JUDGE

EILEEN T. GALLAGHER, P.J., and
MELODY J. STEWART, J., CONCUR
