[Cite as State v. Truhlar, 2017-Ohio-9018.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 105385




                                       STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                 MATTHEW TRUHLAR
                                                       DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED


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

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

        RELEASED AND JOURNALIZED: December 14, 2017
ATTORNEY FOR APPELLANT

Russell S. Bensing
600 IMG Building
1360 East Ninth Street
Cleveland, Ohio 44114


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
By: Brett Hammond
       Denise J. Salerno
       Katherine Mullin
Assistant County Prosecutors
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
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


       1
        No appeal was made to the Ohio Supreme Court.
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 v. Himes, 8th Dist. Cuyahoga Nos. 84076 and 84078,
       2004-Ohio-4241, ¶ 36-37.

       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.

Truhlar, 8th Dist. Cuyahoga No. 103312, 2016-Ohio-5338, at ¶ 33-35.

       {¶8} In Truhlar I, this court held that the double jeopardy clause would not be

violated if the state attempted to retry Truhlar again. Accordingly, this court has already

declared that the state did not invite the mistrial to trigger the exception to the Double

Jeopardy Clause. Id. at ¶ 33-36, 47. This holding, whether rightfully or wrongfully

considered in Truhlar I, is the law of the case, and the assignment of error raised in this

appeal is barred by res judicata.

       {¶9} Judgment affirmed.
       It is ordered that appellee recover from appellant 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 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.




KATHLEEN ANN KEOUGH, ADMINISTRATIVE JUDGE

FRANK D. CELEBREZZE, JR., J., and
LARRY A. JONES, SR., J., CONCUR
