[Cite as State v. Jama, 2017-Ohio-7682.]

                             IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                   :

                 Plaintiff-Appellee,             :                  No. 17AP-166
                                                               (C.P.C. No. 15CR-3899)
v.                                               :
                                                             (REGULAR CALENDAR)
Hanad S. Jama,                                   :

                 Defendant-Appellant.            :




                                           D E C I S I O N

                                   Rendered on September 19, 2017


                 On brief: Ron O'Brien, Prosecuting Attorney, and Seth L.
                 Gilbert, for appellee. Argued: Seth L. Gilbert.

                 On brief: Gerald G. Simmons, for appellant. Argued:
                 Gerald G. Simmons.

                  APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
        {¶ 1} Defendant-appellant, Hanad S. Jama, appeals from a judgment of the
Franklin County Court of Common Pleas denying his motion to dismiss based on double
jeopardy. Because we conclude that the Double Jeopardy Clause does not prohibit retrial
of appellant following the trial court's declaration of a mistrial, we affirm.
I. Facts and Procedural History
        {¶ 2} Appellant was indicted on one count of kidnapping, three counts of rape,
one count of felonious assault, one count of domestic violence, and two counts of failure to
comply with an order or signal of a police officer. A jury trial on all charges commenced
on November 28, 2016. During the afternoon of November 28, and the morning of
November 29, 2016, voir dire was conducted and a jury was impaneled, and the parties
made opening statements. On the afternoon of November 29, 2016, the prosecution's
witness, F.M., testified on direct examination. F.M. testified that appellant physically
No. 17AP-166                                                                             2


assaulted and raped her. F.M. testified in specific detail regarding the incident and her
injuries. Following the completion of her direct testimony, appellant's counsel began to
conduct cross-examination of F.M. As part of the cross-examination, appellant's counsel
sought to use a transcript of F.M.'s interview with a police detective to refresh her
recollection of that interview. The prosecutor objected to the use of the transcript rather
than a recording of the interview, and the trial court conducted a discussion with counsel
outside the presence of the jury. At the conclusion of that discussion, the trial court
adjourned trial for the day without appellant's counsel completing his cross-examination
of F.M.
       {¶ 3} Trial resumed on December 1, 2016, and F.M. did not appear to continue
testifying on cross-examination. The trial court conducted a sidebar conference with
counsel; no transcription of this sidebar conference is contained within the record before
this court. The jury was then instructed that the prosecution would be presenting a
witness out of order, and that further testimony from F.M. might be presented if
necessary. During the morning of December 1, the prosecutor presented testimony from a
Columbus police officer who responded to a 911 call that F.M. placed and spoke with F.M.
after the incident. The prosecutor also presented testimony from another Columbus
police officer who, while responding to the 911 call, saw appellant leaving the area in a
vehicle and ordered him to stop. The officer was involved a pursuit of appellant's vehicle
when he refused to stop and a subsequent additional pursuit of appellant when he fled on
foot. The state also called as a witness another Columbus police officer who was involved
in the search for appellant and ultimately arrested him.
       {¶ 4} After the state presented these witnesses, the court held a discussion with
counsel outside the presence of the jury. Appellant's counsel stated that it was his
understanding that F.M. could not be located, despite the state's efforts to locate her.
Appellant's counsel moved to dismiss the charges of rape, felonious assault, kidnapping,
and domestic violence "for lack of prosecution." (Tr. Vol. II at 54.) The prosecutor stated
that a detective had been sent to the address where F.M. had been served and spoken with
someone there who indicated that F.M. had left for court that morning with her sister.
The prosecutor further stated that police officers had been dispatched to two other
potential addresses for F.M. The prosecutor indicated that if F.M. could not be located,
the state intended to proceed with the trial on all charges. The prosecutor acknowledged
No. 17AP-166                                                                               3


that it might be necessary to strike F.M.'s testimony. Appellant's counsel argued it would
be impossible for the jury to set aside F.M.'s direct testimony regardless of any instruction
from the court, and that because he was not able to cross-examine F.M. the case should
not proceed on the major felony charges. The trial court indicated that it was not
prepared to grant a motion to dismiss and stated that the prosecution would be granted
more time to try and locate F.M.
       {¶ 5} Following lunch recess, the prosecutor indicated further efforts had been
taken to locate F.M., including a request to her cell phone provider to track her phone
location, but the state had not been able to locate F.M. The prosecutor suggested there
was a possibility that F.M. was not voluntarily absent from court, but appellant's counsel
disputed this suggestion. The trial court stated that if F.M. could not be located by the
following morning, certain charges would have to be dismissed:
               The Court: I know. You've worked very hard on this case. I
               will tell you that I understand that you think that you can
               proceed without her, but the issue is that she already started
               testifying and the cross-examination was not complete.

               [Prosecutor]: I understand.

               The Court: And so since that bell cannot be un-rung, if she's
               not located by the start of court tomorrow morning I don't
               think there is any option but to dismiss the charges, the
               Rapes, the Felonious Assault, the DV and Kidnapping.

(Tr. Vol. II at 60-61.) The trial court indicated that the only remaining charges would be
failure to comply. Appellant's counsel stated that it would be possible to resolve the
failure to comply counts because appellant admitted he did not comply with police orders,
although he disputed the degree of the offenses. The trial court indicated that the state
would be given until the following morning to locate F.M. Following this discussion, the
trial court permitted the prosecutor to present testimony from the sexual assault nurse
examiner who examined F.M. and the Columbus police crime scene detective who
collected evidence from appellant's vehicle.
       {¶ 6} When trial resumed on December 2, 2016, F.M. again did not appear to
continue her testimony. After making a record of the state's efforts to locate F.M., the
prosecutor argued the case should proceed on all counts based on the other evidence
presented by the state—i.e., the testimony of the sexual assault nurse examiner and the
No. 17AP-166                                                                                4


police officers.   The prosecutor argued appellant's counsel was essentially seeking a
mistrial by another name, but asserted that the state opposed a mistrial. Appellant's
counsel argued it would be impossible for the jury to disregard F.M.'s testimony and the
court should dismiss all claims related to F.M.'s testimony.
       {¶ 7} The trial court declared that because appellant's counsel was not fully able
to cross-examine F.M. it was impossible to have a fair trial and there was a manifest
necessity to declare a mistrial on all charges. The trial court requested the parties file
briefs on the issue of whether the mistrial prohibited retrial of appellant. Appellant filed a
motion to dismiss, asserting that retrial was barred by the Double Jeopardy Clause. The
trial court issued a judgment denying appellant's motion to dismiss, holding that because
the mistrial had been declared due to a manifest necessity arising from F.M.'s failure to
appear to testify on cross-examination, retrial would not violate the Double Jeopardy
Clause.
II. Assignment of Error
       {¶ 8} Appellant appeals and assigns the following sole assignment of error for our
review:
               THE TRIAL COURT ERRED BY DECLARING A MISTRIAL
               WITH MANIFEST NECESSITY.

III. Discussion
       {¶ 9} We begin by noting that the Supreme Court of Ohio has held that an order
denying a motion to dismiss based on double jeopardy is a final, appealable order because
it denies a provisional remedy, has the effect of determining the action with respect to that
provisional remedy, and the appealing party would not be afforded a meaningful review of
the decision if required to wait for final judgment as to all proceedings in the action. State
v. Anderson, 138 Ohio St.3d 264, 2014-Ohio-542, ¶ 60. Accordingly, this court has
jurisdiction over the present appeal. See, e.g., Jack Maxton Chevrolet, Inc. v. Hanbali,
10th Dist. No. 15AP-816, 2016-Ohio-1244, ¶ 6 ("Courts of appeals have jurisdiction to
review final orders of lower courts.").
       {¶ 10} Appellant argues the trial court erred by denying his motion to dismiss
based on double jeopardy. The trial court concluded that double jeopardy did not prohibit
retrial of appellant because there was a manifest necessity for the court's earlier mistrial
declaration. We apply a de novo standard of review to a decision denying a motion to
No. 17AP-166                                                                                               5


dismiss on double jeopardy grounds. State v. Jordan, 10th Dist. No. 14AP-978, 2015-
Ohio-4457, ¶ 10. See also State v. Mutter, __ Ohio St.3d __, 2017-Ohio-2928, ¶ 13
("Appellate courts review de novo the denial of a motion to dismiss an indictment on the
grounds of double jeopardy, because it is a pure question of law.").
        {¶ 11} The Double Jeopardy Clause of the Fifth Amendment to the United States
Constitution provides that no person shall "be subject for the same offence to be twice put
in jeopardy." Article I, Section 10 of the Ohio Constitution affords similar protection. See
Mutter at ¶ 15 ("The protections afforded by the Ohio and United States Constitutions'
Double Jeopardy Clauses are coextensive."). "Under double jeopardy principles, 'the issue
of whether subsequent prosecution can be had after a mistrial has been declared is
dependent on two things: first, whether jeopardy has attached and, second, whether, if
jeopardy has attached, a retrial is barred by the Constitution or falls within an
exception.' " State v. Mengistu, 10th Dist. No. 02AP-497, 2003-Ohio-1452, ¶ 24, quoting
Cleveland v. Wade, 8th Dist. No. 76652 (Aug. 10, 2000). Jeopardy attaches in a jury trial
once the jury is impaneled and sworn. Id. In this case, the jury had been impaneled and
sworn, and the trial was well underway when the court declared a mistrial. Therefore,
jeopardy had attached and we turn our attention to whether any exception to the Double
Jeopardy Clause exists that would permit appellant to be retried after the trial court's
mistrial declaration.
        {¶ 12} "When a trial court grants a criminal defendant's request for a mistrial, the
Double Jeopardy Clause does not bar a retrial." State v. Matthews, 10th Dist. No. 11AP-
532, 2012-Ohio-1154, ¶ 18, citing State v. Loza, 71 Ohio St.3d 61, 70 (1994).1 See also
United States v. Scott, 437 U.S. 82, 93 (1978) ("Where, on the other hand, a defendant
successfully seeks to avoid his trial prior to its conclusion by a motion for mistrial, the
Double Jeopardy Clause is not offended by a second prosecution." (Emphasis sic.)). The
United States Supreme Court has similarly held that the Double Jeopardy Clause does not
prohibit a retrial when a court grants a criminal defendant's motion to dismiss a case on a
basis other than guilt or innocence. "[T]he defendant, by deliberately choosing to seek

1 We note that "[a] narrow exception [to the rule that the Double Jeopardy Clause does not bar a retrial when

a trial court grants a criminal defendant's request for a mistrial] lies where the request for a mistrial is
precipitated by prosecutorial misconduct that was intentionally calculated to cause or invite a mistrial."
Matthews at ¶ 18, citing Oregon v. Kennedy, 456 U.S. 667, 673 (1982). There was no allegation of
prosecutorial misconduct in the present case and nothing in the record to suggest any such misconduct
leading to the mistrial declaration.
No. 17AP-166                                                                                 6


termination of the proceedings against him on a basis unrelated to factual guilt or
innocence of the offense of which he is accused, suffers no injury cognizable under the
Double Jeopardy Clause if the Government is permitted to appeal from such a ruling of
the trial court in favor of the defendant." Scott at 98-99. The court noted that a criminal
defendant has a valued right to have his guilt or innocence determined before the first
trier of fact, but that this right must be balanced against the public interest in insuring
that justice is served on offenders. Id. at 92-94. By choosing to seek dismissal on a basis
other than guilt or innocence, the defendant is deemed to have deliberately chosen to
forgo the right to have his case determined by the first trier of fact. Id. at 93. Accordingly,
"[n]o interest protected by the Double Jeopardy Clause is invaded when the Government
is allowed to appeal and seek reversal of such a midtrial termination of the proceedings in
a manner favorable to the defendant." Id. at 100.
       {¶ 13} Appellant did not move for a mistrial in this case; however, by moving to
dismiss for lack of prosecution when F.M. did not appear to testify on cross-examination,
appellant sought "termination of the proceedings against him on a basis unrelated to
factual guilt or innocence of the offense of which he [was] accused." Id. at 98-99. In
moving to dismiss the charges related to F.M.'s testimony, appellant's counsel did not
claim that the state failed to prove its case against appellant. Rather, he argued that
because F.M. testified on direct examination but he had been unable to cross-examine
her, appellant's rights had been violated and it was impossible for him to receive a fair
trial. Appellant's counsel asserted the jury would be unable to disregard F.M.'s testimony,
even if instructed to do so by the court.
       {¶ 14} Although the trial court declared a mistrial in this case rather than granting
appellant's motion to dismiss, the underlying principle of the Scott decision applies with
equal force here—double jeopardy protection does not apply because the trial was
terminated on a basis other than appellant's guilt or innocence of the charges against him.
Moreover, had the trial court granted appellant's motion to dismiss for lack of prosecution
instead of declaring a mistrial, the Double Jeopardy Clause would not have barred retrial.
See Scott at 98-99; State v. Broughton, 62 Ohio St.3d 253 (1991), paragraph three of the
syllabus ("Where jeopardy has attached during the course of a criminal proceeding, a
dismissal of the case may be treated in the same manner as a declaration of a mistrial and
will not bar a subsequent trial when: (1) the dismissal is based on a defense motion, and
No. 17AP-166                                                                                    7


(2) the court's decision in granting such motion is unrelated to a finding of factual guilt or
innocence."). See also State v. Malinovsky, 60 Ohio St.3d 20 (1991), paragraph two of the
syllabus ("The Double Jeopardy Clause does not bar reprosecution where a criminal
prosecution is dismissed for failure to prosecute after the trial court has erroneously
required the state to proceed with trial despite the state's properly filed Crim.R. 12(J)
appeal."). Because retrial would not have been barred by the Double Jeopardy Clause if
the trial court had granted appellant's motion to dismiss, we conclude that, under these
circumstances, the Double Jeopardy Clause does not prohibit retrial following the court's
declaration of a mistrial. Therefore, the court did not err by denying appellant's motion to
dismiss based on double jeopardy.
       {¶ 15} Alternatively, if we disregard appellant's attempt to terminate the case on a
basis other than guilt or innocence through his motion to dismiss for lack of prosecution
and solely consider the trial court's mistrial declaration as a sua sponte act, the Double
Jeopardy Clause would not prohibit a retrial of appellant. "In a case in which a mistrial
has been declared 'without the defendant's request or consent, double jeopardy will not
bar a retrial if (1) there was a manifest necessity or a high degree of necessity for ordering
a mistrial; or (2) the ends of public justice would otherwise be defeated.' " Mengistu at
¶ 26, quoting Wade. "What constitutes a 'manifest necessity' is left to the discretion of the
courts, which must 'exercise a sound discretion on the subject [as] it is impossible to
define all the circumstances, which would render it proper to interfere.' " State v. Gunnell,
132 Ohio St.3d 442, 2012-Ohio-3236, ¶ 26, quoting United States v. Perez, 22 U.S. 579,
580 (1824). In determining whether a manifest necessity exists such that a mistrial is
necessary, the trial judge must act "rationally, responsibly, and deliberately." Id. at ¶ 33.
       {¶ 16} F.M. testified on direct examination in great detail about the events leading
to the rapes, kidnapping, felonious assault, and domestic violence charges. Her direct-
examination testimony was extensive, comprising 47 pages of the printed trial transcript.
F.M.'s direct testimony also served to authenticate a recording of a 911 call that F.M. made
and a video taken from a surveillance camera showing a portion of the events F.M.
described, both of which were played for the jury, along with photographs of F.M.'s
injuries. Appellant's counsel suggested that he intended to impeach portions of F.M.'s
trial testimony based on her earlier statements to police detectives; however, he was
prohibited from doing so when F.M. failed to appear to testify on cross-examination. The
No. 17AP-166                                                                                8


trial court concluded that this was prejudicial to appellant and created a manifest
necessity for a mistrial.
       {¶ 17} Appellant argues the trial court abused its discretion in concluding that
there was a manifest necessity for a mistrial, citing the Supreme Court's decision in
Gunnell. In that case, the trial court declared a mistrial after jury deliberations had
commenced because a juror brought to court papers containing definitions of the terms
perverse and involuntary manslaughter that she had obtained from the internet. Gunnell
at ¶ 9-11. The trial court and counsel conducted voir dire of the juror and she indicated
that she had not shared the definitions with any other members of the jury. Id. at ¶ 11.
Both the prosecutor and defense counsel initially indicated that they believed jury
deliberations could continue if the juror was given a proper curative instruction, but the
trial court suggested that the juror would not be able to disregard the definitions she had
obtained. Id. at ¶ 13. After a brief recess, the prosecutor moved for a mistrial, which the
trial court granted over the defendant's objection. Id. at ¶ 15. On appeal, the Supreme
Court held that the trial court abused its discretion by declaring a mistrial. The court
found that the trial court's inquiry into any potential bias held by the juror was limited
and ineffective. The Supreme Court concluded that the trial court declared a mistrial
based on mere speculation of prejudice and that the record failed to establish anything to
support a conclusion that the juror was biased. Id. at ¶ 31-40.
       {¶ 18} While Gunnell involved improper conduct by a single juror, in the present
case the entire jury was exposed to F.M.'s testimony. Presumably, a curative instruction in
Gunnell would have instructed the single juror to disregard the two improper definitions
she had obtained. By contrast, in the present case the full jury would have to be instructed
to disregard all of F.M.'s testimony. The Supreme Court noted in Gunnell that the trial
court reached its decision to declare a mistrial in a very short span of time. Here, the trial
court and counsel discussed the potential implications of F.M. failing to return for cross-
examination during multiple sessions across two days. Additionally, in Gunnell the
defendant opposed the declaration of mistrial and argued that the trial could continue if a
proper curative instruction was given. As explained above, in this case appellant sought
dismissal of the charges and argued the trial should not proceed because the jury would
be unable to disregard F.M.'s testimony.
No. 17AP-166                                                                                9


       {¶ 19} Under the circumstances presented here, given the nature of F.M.'s
testimony and the important constitutional right to cross-examination that was hindered
by her failure to return for cross-examination, we find that the trial court acted rationally,
responsibly, and deliberately in determining that a manifest necessity existed requiring a
mistrial. See Gunnell at ¶ 33. Compare State v. Henness, 10th Dist. No. 94APA02-240
(Feb. 6, 1996) (holding that trial court did not abuse its discretion by failing to declare a
mistrial when a witness failed to appear for cross-examination after giving direct
testimony and only returned to trial one week later, where court concluded that there was
no prejudicial error arising from the fact that the defense was required to withhold
conducting its cross-examination for one week). Because the trial court did not abuse its
discretion by declaring a mistrial due to manifest necessity, the Double Jeopardy Clause
does not bar a retrial of appellant and the trial court did not err by denying appellant's
subsequent motion to dismiss based on double jeopardy.
IV. Conclusion
       {¶ 20} For the foregoing reasons, we overrule appellant's sole assignment of error
and affirm the judgment of the Franklin County Court of Common Pleas.
                                                                        Judgment affirmed.
                           TYACK, P.J., and KLATT, J., concur.
